European Court of Human Rights

THIRD SECTION

DECISION

Application no. 21251/03
by Shirley L.O. LETER
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 1 July 2008 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura-Sandström,
Corneliu Bîrsan,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 3 July 2003,

Having regard to the decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Shirley L.O. Leter, is a Surinamese national who was born in 1971 and lives in Hellevoetsluis. She introduced the application also on behalf of her minor son, Damien T.H. van der Spek. She was represented before the Court by Mrs E.J.M. Habets, a lawyer practising in Schiedam. The Dutch Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms J. Schukking, of the Ministry of Foreign Affairs.

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

The applicant came to the Netherlands on 1 March 1992. She initially applied for a residence permit allowing her to work, but following her marriage to a Netherlands national she sought a residence permit for the purposes of residing with her spouse. She obtained such a permit on 12 April 1994. It had to be renewed annually, and after the last renewal it was valid until 4 July 1997.

On 18 July 1994 a son, Damien, was born to the applicant and her husband. Damien has Netherlands nationality.

The spouses separated in July 1997 and the divorce was pronounced on 1 March 2000. Damien continued to live with his mother. Pursuant to an access arrangement, he stays with his father every other weekend.

In April 2000 the applicant lost her job. When she applied for unemployment benefits, it became clear to her that her residence permit had expired in 1997 and that the information to the contrary that she claimed she had previously been given by the Aliens’ Police Department had not been correct. She therefore requested a new permit, which would allow her to reside in the Netherlands with her son.

On 17 May 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) decided not to process the application (buiten behandeling laten) given that the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf), which had to be applied for at a representation of the Netherlands in the country of origin.

The applicant’s objection (bezwaar) against this decision was dismissed by the Deputy Minister on 19 September 2001. She appealed to the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Dordrecht. She informed that court that she had a new Dutch partner and that she was pregnant.

On 13 April 2002 the applicant gave birth to a daughter. The child was recognised by her father and has Netherlands nationality.

The Regional Court upheld the applicant’s appeal on 29 April 2003, but only for technical reasons: it ordered that the legal consequences of the Deputy Minister’s decision remain intact. The Regional Court held, inter alia, that the refusal to exempt the applicant from the obligation of first applying for a provisional residence visa did not constitute interference with her right to respect for family life because this refusal did not deprive her of a residence permit on the basis of which she had been able to have family life in the Netherlands. Neither were the authorities under a positive obligation to exempt the applicant from the visa requirement, given that this requirement did not exclude that family life might at some stage be exercised in the Netherlands. It did not appear that, whilst waiting abroad for a decision on an application for a provisional residence visa, the applicant would be separated from her son for such a long time that this would amount to a breach of Article 8 of the Convention.

By a letter dated 15 November 2007, the Agent of the respondent Government informed the Court that the Deputy Minister of Justice had granted the applicant a residence permit valid as of 19 April 2000.

COMPLAINT

The applicant complained under Article 8 of the Convention in that, in order to be granted a residence permit in the Netherlands – where she had been living for many years and where her partner and children resided – she first had to leave that country and return to her native Surinam to apply and wait for a provisional residence visa. The processing of such an application could take anything from three months to a year or more. In the view of the applicant, it would be contrary to Article 8 if she had to be separated from her family in the Netherlands for such a long time. It was also not possible for her to take the children with her to Surinam as that would entail interrupting her son’s schooling in the Netherlands; in addition, he would have to miss the contacts with his father. Her current partner would not allow her to take their daughter with her to Surinam and was himself unable to join her in Surinam as such a protracted absence would lose him his job.

THE LAW

Invoking Article 8 of the Convention the applicant complained that she was required to return to Surinam in order to apply for a visa. However, the Court notes that the applicant has now been granted a residence permit and that she is thus no longer under an obligation to return to her country of origin. In these circumstances, and having regard to Article 37 § 1 (b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of the application. 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. Having regard to the specific circumstances of the case, the Court perceives no cause to make an award of costs (Rule 43 § 4 of the Rules of Court).

For these reasons, the Court unanimously

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

Santiago Quesada Josep Casadevall
Registrar President