European Court of Human Rights

THIRD SECTION

DECISION

Application no. 5956/07
by Astride RUSHINGWA and Others
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 14 October 2008 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 3 February 2007,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mrs Astride Rushingwa, her husband Mr Oderhwa François Chirishungu Mulume and their children Ms Esther Lydie Chirishungu, Ms Nadège Abigail Chirishungu and Mr Emmanuel Chirishungu, are Congolese nationals who were born in 1953, 1947, 1980, 1987 and 1988 respectively. Mrs Rushingwa lives in Oosterhout (the Netherlands); the other applicants were living in Kinshasa in the Democratic Republic of Congo (“the DR Congo”) at the time the application was introduced with the Court. They were represented before the Court by Mr G.J.W.M. Kipping, a lawyer practising in Breda. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

Mrs Rushingwa (the first applicant) entered the Netherlands in late 2001, together with her then 3-year old son Teddy, and applied for asylum on 3 January 2002. By decision of 23 December 2002 they were granted a temporary residence permit for the purposes of asylum and, on 3 January 2005, an indefinite residence permit for the purposes of asylum.

Meanwhile, after having succeeded in restoring contact with her husband (the second applicant) and her children Esther, Nadège, Emmanuel (the third, fourth and fifth applicants), who had remained in the DRC, Mrs Rushingwa requested the Visa Department of the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) to give an advisory opinion on the issuance of provisional residence visas (machtigingen tot voorlopig verblijf) to her husband and her children. Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights, and it has to be applied for in a person's country of origin.

On 3 December 2003 a negative advice was issued. Nevertheless, Mr Chirishungu Mulume and Esther, Nadège and Emmanuel applied for provisional residence visas at the representation of the Netherlands in Kinshasa on 21 December 2004, in order to be allowed to join Mrs Rushingwa and Teddy in the Netherlands.

The visa applications were refused by the Minister for Foreign Affairs on 17 March 2005 and the proceedings taken by Mr Chirishungu Mulume and Esther, Nadège and Emmanuel against that decision were unsuccessful. The final decision was taken by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 3 August 2006.

On 13 September 2007, following the notification of the present application to them, the Government informed the Court that Mr Chirishungu Mulume, Nadège and Emmanuel would be issued residence permits. The question whether such a permit would also be issued to Esther – who had already been of age when she applied for a provisional residence visa – was still under consideration, and she was invited to provide more information relating to her position within the family. On 4 September 2008 the Government also granted permission to Esther, as well as to her minor son, to reside in the Netherlands with her mother, Mrs Rushingwa.

In reply to the question whether, in view of the above developments, the applicants wished to withdraw their application, their representative informed the Court on 6 June 2008, as regards Mr Chirishungu Mulume, Nadège and Emmanuel, and on 10 September 2008, as regards Mrs Rushingwa and Esther, that they indeed wanted to do so.

COMPLAINT

The applicants complained under Article 8 of the Convention of the refusal to allow Mrs Rushingwa's husband and children Esther, Nadège and Emmanuel to reside with her in the Netherlands.

THE LAW

On 6 June and 10 September 2008 the applicants' representative informed the Court that the applicants wished to withdraw the application.

In these circumstances, and having regard to Article 37 § 1 (a and b) of the Convention, the Court is of the opinion that the applicants may be regarded as no longer wishing to pursue their application and the matter at issue as having been resolved. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President