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URL: http://www.bailii.org/eu/cases/ECHR/2011/1502.html
Cite as: [2011] ECHR 1502

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THIRD SECTION

DECISION

Application no. 61751/08
by Ali CISSE
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 13 September 2011 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Mihai Poalelungi,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 22 December 2008,

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 applicant, Mr Ali Cisse, is a Liberian national who was born in 1980 and lives in Baarn. He is represented before the Court by Ms M.R.F. Berte, a lawyer practising in Tilburg. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

The applicant unsuccessfully applied for asylum in the Netherlands on 18 November 2004. The final decision was taken by the Regional Court (rechtbank) of The Hague, sitting in Assen, on 15 July 2005.

Whilst in the Netherlands, the applicant found out that his father – allegedly his only remaining living relative – was also residing in that country; the latter had been granted a residence permit and had subsequently obtained Dutch nationality.

On 30 November 2006 the applicant applied for a residence permit for the purpose of residing with his father, who was seriously ill as he was suffering from two life-threatening diseases: HIV and a malignant lymphoma in a lung. The applicant had been taking care of his father: washing him, doing the housework and making sure his father took his medication on time (his father suffering from memory loss as a side effect of the medication, he did not use to take vital medication on time).

The Deputy Minister of Justice (Staatssecretaris van Justitie) refused this application on 20 November 2007 because the applicant was not in possession of the required provisional residence visa (machtiging tot voorlopig verblijf; 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 one’s country of origin) and there was no reason to exempt him from the obligation to obtain such a visa. Although the Deputy Minister found it understandable that the applicant wished to stay with his father, it had not appeared that his presence was strictly necessary or that his father was dependent on him for care – just as other Dutch citizens, the applicant’s father was able to turn to organisations providing medical and/or social care.

In support of his objection against this decision, the applicant argued inter alia that in view of the two life-threatening illnesses from which his father was suffering, he required nigh on continuous care, which could not be provided by the organisations referred to by the Deputy Minister in the decision of 20 November 2007, apart from the fact that the loving care provided by the applicant to his only living relative could not be replaced by the impersonal care provided by a hired help. The applicant further argued that he and his father had been reunited after a long separation and that they did not want to lose each other once again, in which context it also had to be borne in mind that it was not clear for how much longer his father would be able to withstand his illnesses. The applicant invoked Article 8 of the Convention.

The Deputy Minister dismissed the applicant’s objection on 28 February 2008, maintaining the position she had taken in the decision of 20 November 2007.

The Regional Court rejected the applicant’s subsequent appeal on 24 April 2008. It found that the Deputy Minister had not acted unreasonably. In particular, it had not been shown that the applicant was unable to obtain a laissez-passer or a passport. The Regional Court further held that it was not contrary to Article 8 of the Convention to insist that the applicant comply with the visa obligation, since this obligation did not necessarily entail a permanent separation between the applicant and his father.

The applicant’s further appeal was rejected on 14 October 2008 by the Administrative Jurisdiction Division of the Council of State which found that the appeal did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law.

B. Developments after the introduction of the application

On 9 January 2009 the President of the Chamber decided, under Rule 54 § 2 (b) of the Rules of Court, that notice of the application should be given to the Government and that the Government should be invited to submit written observations on the admissibility and merits of the case.

After having obtained a number of extensions of the time-limit fixed for the purpose of submitting their observations, the Government informed the Court on 11 January 2011 that an investigation within the framework of the present proceedings had revealed that the social assistance benefits of the applicant’s father had been terminated as of 5 July 2010 for the reason that the beneficiary – i.e. the father – had not responded to requests to present himself and to submit certain information requested, including concerning his place of residence. No objection (bezwaar) had been lodged against the decision to terminate the benefits.

Given his alleged medical condition and his assumed dependency on social assistance benefits, the Government considered it unlikely that the applicant’s father would not have responded to requests to provide information or to the withdrawal of the benefits and they doubted, therefore, that he was still residing in the Netherlands. Given the crucial importance of that fact for the current proceedings, they requested the applicant, via the Court, to provide some evidence of his father’s presence in the Netherlands.

On 9 February 2011 the applicant informed the Court that his father was indeed no longer in the Netherlands. He had suddenly disappeared, after which the applicant had started receiving telephone calls from his father who said he was being held in a Turkish prison. The applicant was not aware of the reason for his father’s incarceration or of its duration, and neither did he know whether his father was receiving the necessary medical treatment.

In view of the fact that he was no longer looking after his father, the applicant was subsequently asked whether he nevertheless wished to maintain his application to the Court. In his reply of 21 April 2011 the applicant stated that this was indeed his wish. Apart from the fact that it was not clear when his father would be returning to the Netherlands, the applicant submitted that it remained the case that he had been looking after his father when his request for a residence permit had been rejected. The applicant was furthermore convinced that his father would not have gone to Turkey if his son had been granted a residence permit. Nevertheless, having regard to the current circumstances as well as the workload of the Court, the applicant expressed his understanding should the Court decide to strike his case out of its last of cases.

COMPLAINT

The applicant originally complained under Article 8 of the Convention that, in order to be granted a residence permit in the Netherlands, he first had to leave that country and apply and wait for a provisional residence visa. He feared that, due to a lack of travel and identity documents, he would be unable both to return to his native Liberia and to obtain a visa. Even if he did succeed, he would be separated from his father for such a long time that the latter might succumb to his illnesses in the meantime.

THE LAW

Article 37 of the Convention provides:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) of the Convention, the Court must consider whether “the circumstances lead it to conclude that “for any other reason ... it is not longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out decision on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006-XIV, and M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008).

The Court acknowledges, as indicated in his letter of 21 April 2011, that the applicant’s complaint concerned the decision to refuse his request for a residence permit for the purpose of residing with his father, which decision had been taken at a time when he was still caring for his father in the Netherlands. However, it does not appear that, subsequent to this refusal, the applicant returned to Liberia in order to apply for a provisional residence visa or that he was removed from the Netherlands; instead, he continued caring for his father until the latter left the country. In this respect the Court considers that the applicant’s claim that his father would not have left the Netherlands had his son, i.e. the applicant, been issued a residence permit is speculative as it appears that the applicant is not aware of his father’s reasons for leaving.

Having regard, furthermore, to the fact that in his application form the applicant stated that the object of the present application to the Court was to let him stay in the Netherlands with his sick father, and given that this is at the present time in any event impossible in view of the fact that his father has been absent from the Netherlands for more than a year and that there are currently no clear prospects of his imminent return, the Court is of the view that the particular circumstances of this application are such that it is no longer justified to continue its examination.

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. Accordingly, 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.

Marialena Tsirli Josep Casadevall
Deputy Registrar President