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ARVELO APONTE v. THE NETHERLANDS - 28770/05 [2011] ECHR 1850 (3 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1850.html
Cite as:
[2011] ECHR 1850
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THIRD
SECTION
CASE OF ARVELO APONTE v. THE NETHERLANDS
(Application
no. 28770/05)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Arvelo Aponte v.
the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Marialena Tsirli,
Deputy Section
Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 28770/05) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Venezuelan national, Ms
Diana Begilia Arvelo Aponte (“the applicant”), on 4
August 2005.
The
applicant was represented by Mr S.J. van der Woude, a lawyer
practising in Amsterdam. The Dutch Government (“the
Government”) were represented by their Agent, Mr R.A.A. Böcker,
and their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign
Affairs.
The
applicant alleged a violation of her right to respect for her family
life as guaranteed by Article 8 of the Convention due to the refusal
of the Netherlands Government to grant her a residence permit, based
primarily on an old conviction of a narcotics offence committed in
Germany. She further complained of the lack of an effective domestic
remedy within the meaning of Article 13 of the Convention in respect
of her complaint under Article 8.
On
9 September 2008 the President of the Third Section decided to give
notice of the application to the Government. It
was also decided to examine the merits of the application at the same
time as its admissibility (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1964 in Caracas (Venezuela) and currently lives
in Amsterdam.
On
17 March 1996 the applicant flew from Venezuela to Frankfurt. At the
airport, German officials discovered 691.6 grams of cocaine on one of
the applicant’s travelling companions, on the basis of which
the applicant and her companions were arrested. On 21 October 1996
the Frankfurt am Main Regional Court (Landesgericht) convicted
the applicant of participation in the deliberate importation of 691.6
grams of cocaine and sentenced her to two years and six months
imprisonment. The applicant did not appeal the judgment. She was
granted early release on 25 August 1997 and, on the same day, was
expelled from Germany to Venezuela. The German authorities did not
impose an exclusion order on the applicant.
In
2000 the applicant travelled as a tourist to the Netherlands where
she met and started a relationship with a Netherlands national, Mr T.
On 27 October 2000, a request for advice on her eligibility for
a provisional residence visa (machtiging tot voorlopig verblijf)
for the purpose of stay with Dutch partner was filed on behalf of the
applicant. Such a visa entitles the holder to enter the Netherlands
in order to apply for a residence permit for a stay exceeding three
months. An application for a provisional residence visa is in
principle assessed on the basis of the same criteria as a residence
permit. On 9 April 2001, a positive advice was issued.
The
applicant subsequently returned to Caracas where she applied for a
provisional residence visa at the Netherlands mission. According to
the applicant, the question whether she had ever been convicted of a
criminal offence was not raised in the procedure on her request for a
provisional residence visa and, being unaware that this would be
relevant, she had not volunteered this information either.
Following
the transmission of a positive advice of the Netherlands Aliens
Police Service (Dienst Vreemdelingenpolitie) to the
Netherlands mission in Caracas, in which the latter were requested to
inform the applicant that, in order to quality for a residence
permit, she would be required to sign a formal statement to the
effect that she had never been the subject of criminal proceedings
and/or a criminal conviction (antecedentenverklaring;
hereinafter “declaration on criminal antecedents”), the
applicant was provided on 27 April 2001 with a provisional residence
visa by the Netherlands Minister of Foreign Affairs. According to the
applicant, the information about the declaration on criminal
antecedents was not given to her when she received the provisional
residence visa at the Netherlands mission in Caracas.
On
2 May 2001 the applicant returned to the Netherlands where, to date,
she has been cohabiting with Mr T.
On
11 May 2001 the applicant filed a request for a temporary regular
residence permit (verblijfsvergunning regulier voor bepaalde tijd)
for the purpose of stay with her Netherlands partner Mr T. When she
was confronted with the prescribed declaration on criminal
antecedents, she refused to sign it and her conviction in Germany
came to light.
On
15 August 2001, the applicant was informed of the Minister’s
intention (voornemen) to declare her an undesirable alien
entailing the imposition of an exclusion order (ongewenstverklaring).
The applicant was given the opportunity to react to this intention in
the course of an interview conducted by the Aliens’ Police
(vreemdelingenpolitie) on 28 August 2001.
On
16 October 2001, the prosecution department at the Amsterdam Regional
Court (arrondissementsparket) was requested to consider
whether the facts of which the applicant had been convicted in
Germany constituted a criminal offence under Dutch law and whether
the sentence imposed was comparable to the sentence that would be
imposed by a Netherlands judge if the offence had been committed in
the Netherlands. In its reply of 6 March 2002, the
prosecution department stated that participation in the deliberate
importation of cocaine constituted a serious criminal offence
(misdrijf) under Dutch law, attracting a prison sentence of up
to 12 years’. It further stated that the applicant, if she were
convicted in the Netherlands, would probably be sentenced to 15 to 24
months’ imprisonment on the understanding that a judicial
examination and determination of sentence obviously depended on the
specific circumstances of each individual case.
By
decision of 21 March 2002, the Deputy Minister of Justice
(Staatssecretaris van Justitie) rejected the applicant’s
request for a residence permit. The Deputy Minister further declared
the applicant an undesirable alien entailing the imposition of a
ten-year exclusion order, as it had appeared that the applicant had
been convicted on 22 October 1996 by the Frankfurt am Main Regional
Court of participation in the deliberate importation of cocaine for
which she had been sentenced to two years and six months’
imprisonment. Having noted the contents of the letter of 6 March
2002 of the prosecution department at the Amsterdam Regional Court,
the Deputy Minister found that the judgment of the Frankfurt am Main
Regional Court did not substantially differ from the judgment that
would have been passed by a Netherlands court. While acknowledging
that the exclusion order constituted an interference with the
applicant’s right to respect for her family life, the Minister
considered that this was justified in the interests of public safety
(openbare orde) and the prevention of crime, and that the
general interests of the State thus outweighed those of the
applicant.
On
14 May 2002, the applicant lodged an objection (bezwaar)
against the decision. She argued that, as she had been granted a
provisional residence visa, she had a legitimate expectation that she
would be granted a residence permit as well. She further argued that
a Dutch court would have passed a much more lenient sentence than the
German court had done and that forcing her to leave would constitute
an unjustified interference with her right to respect for family life
now that she had been legally residing in the Netherlands since 2 May
2001.
As
a decision to impose an exclusion order is immediately enforceable
and an appeal against such a decision does not enjoy automatic
suspensive effect, the applicant applied on 4 June 2002 to the
Regional Court (rechtbank) of The Hague for a provisional
measure (voorlopige voorziening) in order to stay her
expulsion pending the objection proceedings.
The
applicant and her partner married in Amsterdam on 7 February 2003.
On 11 April 2004 a son was born of this marriage. The applicant had
decided that, in view of her age, it would be unwise to wait too long
before conceiving a child, despite her uncertain residence status.
In
the meantime, on 31 March 2004, the applicant was heard on her
objection lodged on 14 May 2002 before an official board of enquiry
(ambtelijke commissie). This board also put questions to her
husband who attended the hearing, who stated inter alia that
he had a reasonable command of Spanish but that he did not wish to
settle in Venezuela given the bad economic situation there. The
applicant stated inter alia that she was in contact with her
mother and two brothers who were living in Venezuela.
On
7 June 2004 the Minister for Immigration and Integration (Minister
van Vreemdelingenzaken en Integratie; the successor to the Deputy
Minister of Justice) dismissed the applicant’s objection on the
grounds that the applicant could not claim a legitimate expectation
to be granted a residence permit on the basis of the provisional
residence visa and that a Dutch court would have imposed a sentence
approaching the sentence handed down by the German court.
Furthermore, the Minister held that the interference with the
applicant’s family life was justified in order to protect
public safety (openbare orde) and to prevent crime in view of
the applicant’s drug-related conviction, and that there were no
objective obstacles standing in the way of the applicant’s
husband and child following her to Venezuela.
On
8 July 2004, the Regional Court of The Hague sitting in Amsterdam –
unaware of the fact that the applicant’s objection had been
determined on 7 June 2004 – granted the provisional measure
that she had requested on 4 June 2002. As its requests of 3 February
2004 and 25 March 2004 to the Minister for information about the
state of affairs in the objection proceedings had remained
unanswered, it concluded that apparently the Minister did not attach
great weight to the applicant’s speedy removal from the
Netherlands and therefore granted the provisional measure.
By
9 June 2004 the applicant had already filed an appeal with the
Regional Court of The Hague against the dismissal of her objection,
raising largely the same grounds and elaborating her claim that she
was unlikely to have been sentenced to more than six months’
imprisonment had she been tried by a Dutch court. She based this
assertion on a document containing indicative guidelines for the
determination of sentences for drug couriers, in use by judges in the
Netherlands. A sentence of less than six months in the applicant’s
case would have meant, according to the regulations in force, that
she would have been eligible for a residence permit.
On
20 August 2004, after a hearing held on 13 August 2004, the Regional
Court of The Hague sitting in Amsterdam denied the applicant’s
appeal. The court agreed with the Minister that there was no question
of a legitimate expectation. It further found that, based on the
advice of the public prosecution department, the Minister had
correctly estimated the length of the sentence that a Dutch court
would have handed down. As regards Article 8 of the Convention, the
court held that the interference with the applicant’s family
life was justified in order to protect public safety and to prevent
crime and that there were no objective obstacles to the applicant and
her family continuing their family life in Venezuela. In this context
it considered that the conviction concerned a narcotics offence, that
– although eight years had elapsed since this conviction
whereas the applicant had not reoffended since – this did not
affect the serious nature of this offence and that – unlike the
situation in the case of Boultif v. Switzerland, (no.
54273/00, ECHR 2001 IX) – the applicant had never held a
residence permit. It further took into account that the applicant’s
marriage and the birth of her child were posterior to the decision to
impose an exclusion order and found that there were no objective
obstacles for the applicant and her family to continue their family
life in Venezuela. It therefore concluded that the public interest
outweighed the personal interests of the applicant and her family.
On
14 September 2004 the applicant appealed the judgment of the Regional
Court to the Administrative Jurisdiction Division of the Council of
State (Afdeling bestuursrechtspraak van de Raad van State;
“the Division”) on largely the same grounds. The
applicant also argued that the Regional Court had merely carried out
a marginal assessment (marginale toetsing) by examining the
reasonableness of the decision of the Minister to deny the
applicant’s claim under Article 8 of the Convention, whereas
the matter should have been considered on the merits as well. The
applicant further claimed that the Regional Court had misinterpreted
the principle of objective obstacles to the family starting anew in
Venezuela.
The
applicant also petitioned the President of the Administrative
Jurisdiction Division for a provisional measure on 15 September 2004.
The President denied the request as there were no grounds on which to
assume that the impugned decision would be overturned on appeal.
On
15 February 2005 the Administrative Jurisdiction Division rejected
the further appeal, holding:
“What has been raised in the grievances does not
provide grounds for quashing the impugned ruling (kan niet tot
vernietiging van de aangevallen uitspraak leiden). Having regard
to article 91 § 2 of the Aliens Act 2000, no further reasoning
is called for, since the arguments submitted do not raise questions
which require determination in the interest of legal uniformity,
legal development or legal protection in the general sense.”
No
further appeal lay against this ruling.
The
applicant currently still resides in the Netherlands and has never
reoffended.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Until
1 April 2001, the admission, residence and expulsion of aliens were
regulated by the Aliens Act 1965 (Vreemdelingenwet 1965).
Further rules were laid down in the Aliens Decree
(Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift
Vreemdelingen) and the Aliens Act Implementation Guidelines
(Vreemdelingencirculaire). The General Administrative Law Act
(Algemene Wet Bestuursrecht) applied to proceedings under the
Aliens Act 1965, unless indicated otherwise in this Act.
On
1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act
2000. On the same date, the Aliens Decree, the Regulation on Aliens
and the Aliens Act Implementation Guidelines were replaced by new
versions based on the Aliens Act 2000. Unless indicated otherwise in
the Aliens Act 2000, the General Administrative Law Act continued to
apply to proceedings on requests by aliens for admission and
residence.
According
to the transitional rules, set out in article 11 of the Aliens Act
2000, an application for a residence permit which was being processed
at the time this Act entered into force was to be considered as an
application under the provisions of the Aliens Act 2000. Because no
transitional rules were set for the substantive provisions of the
aliens’ law, the substantive provisions under the Aliens Act
2000 took effect immediately.
The
Netherlands Government pursue a restrictive immigration policy due to
the population and employment situation in the Netherlands. Aliens
are eligible for admission only on the basis of international
agreements, or if their presence serves an essential Dutch interest,
or for compelling reasons of a humanitarian reason (article 13 of the
Aliens Act 2000). Respect for family life as guaranteed by Article 8
of the Convention constitutes an obligation under an international
agreement.
As
a rule, anyone wishing to apply for a residence permit in the
Netherlands must first apply from his or her country of origin to the
Netherlands Minister of Foreign Affairs for a provisional residence
visa. Only once such a visa has been issued abroad may the holder
travel to the Netherlands and apply for a residence permit for the
Netherlands. An application for a provisional residence visa is in
principle assessed on the basis of the same criteria as a residence
permit.
The
admission policy for family formation (gezinsvorming) and
family reunion (gezinshereniging) purposes is laid down in
Chapter B1 of the Aliens Act Implementation Guidelines 2000. A
partner or spouse of a Netherlands national is in principle eligible
for admission, if certain further conditions relating to matters such
as public policy and means of subsistence are met.
Pursuant
to article 3.20 of the Aliens Decree 2000, a residence permit for the
purposes of family reunion or family formation can be refused if the
alien constitutes a threat to public order or national security. In
this respect, article 3.77 § 1(c) of the Aliens Decree 2000
reads in its relevant part that a threat to public order exists when:
“c. the alien has been convicted of a
criminal offence and sentenced to either a non-suspended prison
sentence or custodial measure, a community service order or
non-suspended financial penalty, or if, in relation to a criminal
offence, the alien has accepted an out-of-court settlement or if a
punishment order has been issued against him by a public prosecutor.”
Article
3.77 § 2 of the Aliens Decree 2000 provides that, in applying
Article 3.77 § 1(c), also violations of public order committed
outside of the Netherlands are taken into account, provided that they
constitute a serious criminal offence (misdrijf) under Dutch
law.
A
past criminal conviction is not permanently held against the person
concerned. Like the delays that apply to a request to lift an
exclusion order, a past conviction is no longer held against a
petitioner for a residence permit once a period of ten (for drugs or
violent offences) or five (for other offences) years has elapsed,
provided that the petitioner has not reoffended.
Article
67 of the Aliens Act 2000 provides that a foreign national may be
declared an undesirable alien, entailing the imposition of an
exclusion order, on the ground, inter alia, that he or she has
been convicted of a serious offence carrying a prison sentence of
three years or more, or poses a danger to public order. An exclusion
order entails a ban on residing in or visiting the Netherlands. An
exclusion order is immediately enforceable and the person on whom it
is imposed is informed at the time of notification of this decision
that he or she is obliged to leave the Netherlands immediately, that
is within 24 hours.
An
exclusion order can be challenged in administrative law appeal
proceedings under the terms of the General Administrative Law Act.
Such appeal proceedings do not have automatic suspensive effect.
Article
91 § 2 of the Aliens Act 2000 provides as follows:
“If the Administrative Jurisdiction Division of
the Council of State finds that a complaint raised does not provide
grounds for overturning [the impugned ruling], it may, in giving
reasons for its decision, limit itself to that finding.”
Article
197 of the Criminal Code (Wetboek van Strafrecht) provides
that an alien who stays in the Netherlands while he or she knows that
an exclusion order has been imposed on him or her commits a criminal
offence punishable by up to six months’ imprisonment or a fine
of up to 4,500 euros.
An
exclusion order may be revoked, upon request, if the alien concerned
has been residing outside the Netherlands for an uninterrupted period
of ten years (article 68 of the Aliens Act 2000). Such revocation
entitles the alien to seek readmission to Netherlands territory
subject to the conditions that are applicable to every alien.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The
applicant complained of an unjustified interference with her right to
respect for her family life as guaranteed by Article 8 of the
Convention due to the refusal of the Netherlands Government to grant
her a residence permit, based primarily on an old conviction of a
narcotics offence committed in Germany. In so far as relevant,
Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect
for his ... [family life].
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. Admissibility
The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
finds that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant’s submissions
The
applicant submitted that the refusal to grant her a residence permit
and to impose an exclusion order constituted a disproportionate
interference with her right to respect for family life. In the
applicant’s view, she was entitled to expect that she would be
granted a residence permit for the purpose of starting a family with
her Dutch partner since her request for a provisional residence visa,
which was assessed on the same criteria as a residence permit, had
been granted. Emphasising that the actual point of requiring aliens
to apply for a provisional residence visa in their country of origin
is for the assessment of that alien’s eligibility for a
residence permit to take place in his/her home country rather than on
Dutch soil, the applicant argued that in such a system it stands to
reason that – once a provisional residence visa has been
granted – a residence permit can only be denied in “exceptional
circumstances”, as indeed provided for in Chapter B1 1.1.8 of
the Aliens Act Implementation Guidelines 2000. Such situations
usually involve a subsequent intervening change in circumstances such
as loss of employment, the end of the relationship, new crimes
committed etc.
The
applicant argued that, although the immigration rules allow the
denial of a residence permit on the grounds that the alien petitioner
constitutes a threat to public order, there was no reason for holding
that she posed such a threat as her conviction was an old one,
predating her request for a provisional residence visa. It could thus
not be said that this conviction amounted to an “exceptional
circumstance” within the meaning of the Aliens Act
Implementation Guidelines 2000. The applicant pointed out that she
had not sought to conceal her past conviction vis-à-vis the
Netherlands authorities; she had simply answered the questions put to
her when she applied for a provisional residence visa and no question
had been put to her about any criminal prosecutions or sentences.
Furthermore, the idea that a five-year old conviction would stand in
the way of a residence permit had never crossed her mind. So when the
provisional residence visa was granted, she had been very happy as
she then knew that she would be granted a residence permit.
The
applicant further submitted that, under the immigration rules as in
force at the material time, a prison sentence of less than six months
could not result in a decision to impose an exclusion order. Relying
on sentencing guidelines for drug couriers (“oriëntatiepunten
straftoemeting drugskoeriers”), used by the Haarlem
Regional Court as of 1 May 2003 and according to which a judge at
this court – competent to try drug couriers found at Schiphol
airport – would have imposed 240 hours’ community service
plus 4-6 months’ imprisonment for the offences of which she had
been found guilty, the applicant argued that the estimate of sentence
given by the public prosecution department in the domestic
proceedings was much too high which had resulted in the imposition of
an exclusion order with far reaching consequences for her family
life in the Netherlands.
Furthermore,
the Netherlands immigration policy at issue came down to an automatic
exclusion of alien convicts instead of ensuring an assessment of the
actual real danger posed to public order by the alien concerned.
Underlining that she had never reoffended whereas she had been living
in the Netherlands since 2001, the applicant maintained that the only
reason why the Netherlands authorities denied her the possibility to
enjoy her family life in the Netherlands was a sentence imposed 14
years ago.
As
regards continuing her family life in Venezuela, the applicant
claimed that her husband hardly spoke Spanish and that he could never
reasonably hope to get a decent job in Venezuela; a poor country
afflicted by unemployment, violence and crime. She further explained
that her husband would never consent to move to Venezuela and that
for this reason she had not left the Netherlands. In this connection
she further pointed out that the Netherlands authorities had never
taken any action aimed at her removal from the Netherlands.
The
applicant therefore concluded that, in refusing her request for a
residence permit and imposing the exclusion order, no fair balance
had been struck.
2. The Government’s submissions
The
Government submitted that the applicant was not entitled to expect
that she would be granted a residence permit. Admittedly, she was
given a provisional residence visa – erroneously, as it
subsequently transpired – but that did not alter the fact that
a residence permit could still be refused, for example, if the
applicant was considered to pose a threat to public order. Given her
criminal record, the applicant ought to have realised that refusal
was a real possibility in her situation. The Government emphasised
that the offence of which the applicant had been convicted in
Germany, i.e. participation in the deliberate importation of cocaine,
was a serious offence under Dutch law carrying a prison sentence of
up to 12 years’ and constituted a very serious violation
of public order transcending national boundaries. It related to the
smuggling of a drug that has a destructive impact on human health and
is a root cause of social dislocation and related problems affecting
the fabric of society.
As
regards the estimate of the sentence made by the public prosecution
department in the applicant’s case, the Government submitted
that the guidelines referred to by the applicant applied only as of 1
May 2003, i.e. a considerable time after the applicant’s
conviction in Germany and after 21 March 2002 when her request for a
residence permit was rejected and the exclusion order imposed. The
guidelines did apply when the applicant’s objection was
determined on 7 June 2004. Furthermore, these sentencing guidelines
only related to a very specific group of drug couriers, namely the
so-called “body packers” (“bolletjesslikkers”)
arrested at Schiphol airport. The guidelines were drawn up as part of
an attempt to deal with the exponential increase as from the end of
2001 in cocaine smuggling by couriers via Schiphol airport, creating
capacity problems in various parts of the criminal justice system.
The Government further submitted that in any event, under the policy
on initial permission for residence, the severity of the sentence
played no role in the application of the public order criterion. It
was sufficient that the offence of which a petitioner had been
convicted was a serious one (misdrijf) under Dutch law and
that the comparable sentence in the Netherlands would be a term of
unsuspended imprisonment or detention order, an alternative sanction
or a fine. Therefore, even assuming that in the applicant’s
case the lightest prison sentence under the sentencing guidelines,
i.e. five months, was applicable, her application for a residence
permit would still have been refused.
The
Government accepted that the fact that the applicant’s
conviction occurred some time ago and that she had not been convicted
again since her release in 1997 constituted mitigating circumstances.
However, in the Government’s opinion, these carried
insufficient weight to offset the gravity of her offence. In
assessing the threat the applicant posed to Dutch society, the nature
of the offence committed by her should take precedence over the
estimated risk that she may or may not reoffend.
As
regards the length and nature of the applicant’s stay in the
Netherlands, the Government emphasised that the applicant had never
held a residence permit. Referring to the Court’s decision in
the case of Useinov v. the Netherlands (no. 61292/00, 11
April 2006), the Government contended that, although the applicant
was allowed to stay in the Netherlands pending the outcome of her
request for a residence permit, this could not be equated with lawful
stay where the authorities had explicitly granted an alien permission
to settle in their country. A stay in the host country in these
circumstances remained uncertain and it did not follow from the fact
that such permission enables the alien concerned to establish or
intensify family life that the alien was entitled to expect that
his/her residence will be tolerated.
3. The Court’s assessment
The
Court notes at the outset that it is not in dispute that the
applicant’s relationship with Mr T. and their minor child
constitutes “family life” for the purposes of Article 8
and that the refusal to grant her a residence permit and her
exclusion from the Netherlands affected that family life.
The
Court reiterates at the outset that the essential object of Article 8
is to protect the individual against arbitrary action by the public
authorities. There may in addition be positive obligations inherent
in effective “respect” for family life. However, the
boundaries between the State’s positive and negative
obligations under this provision do not lend themselves to precise
definition. The applicable principles are, nonetheless, similar. In
the context of both positive and negative obligations the State must
strike a fair balance between the competing interests of the
individual and of the community as a whole. The Court does not find
it necessary to determine whether in the present case the impugned
refusal to grant the applicant a residence permit and to impose an
exclusion order on her constitute an interference with her right to
respect for her family life or is to be seen as one involving an
allegation of failure on the part of the respondent State to comply
with a positive obligation. In the context of both positive and
negative obligations the State must strike a fair balance between the
competing interests of the individual and of the community as a
whole. However, in both contexts the State enjoys a certain margin of
appreciation (see, inter alia, Konstatinov v. the
Netherlands, no. 16351/03, § 46, 26 April 2007;
Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, §
42, 1 December 2005; Gül v. Switzerland, 1 February
1996, § 63, Reports of Judgments and Decisions 1996-I;
and Powell and Rayner v. the United Kingdom, 21 February 1990,
§ 41, Series A no. 172).
The
Court further reiterates that, where immigration is concerned,
Article 8 does not impose on a State a general obligation to respect
the choice by married couples of the country of their matrimonial
residence and to authorise family reunion in its territory (see
Dadouch v. Malta, no. 38816/07, § 49 with further
references, ECHR 2010 ... (extracts)). Nevertheless, in a case
which concerns family life as well as immigration, the extent of a
State’s obligations to admit to its territory relatives of
persons residing there will vary according to the particular
circumstances of the persons involved and the general interest (see,
inter alia, Abdulaziz, Cabales and Balkandali v. the United
Kingdom, 28 May 1985, §§ 67-68, Series A no. 94; Gül,
cited above, § 38; Ahmut v. the Netherlands, 28 November
1996, § 63, Reports 1996 VI; and Priya v. Denmark
(dec.), no. 13594/036 July 2006).
Factors
to be taken into account in this context are the extent to which
family life is effectively ruptured, the extent of the ties in the
Contracting State, whether there are insurmountable obstacles in the
way of the family living in the country of origin of one or more of
them and whether there are factors of immigration control (for
example, a history of breaches of immigration law) or considerations
of public order weighing in favour of exclusion. Another important
consideration will also be whether family life was created at a time
when the persons involved were aware that the immigration status of
one of them was such that the persistence of that family life within
the host State would be precarious from the outset. The Court has
previously held that where this is the case it is likely only to be
in the most exceptional circumstances that the removal of the
non-national family member will constitute a violation of Article 8
(see Rodrigues da Silva and Hoogkamer v. the Netherlands, no.
50435/99, § 39 with further references, ECHR 2006 I).
Turning
to the facts of the case, the Court notes that the applicant had
resided – with the exception of the time she was imprisoned in
Germany – all her life in Venezuela when she arrived as a
tourist in 2000 in the Netherlands where she met and started a
relationship with Mr T. She was subsequently granted permission –
in the form of a provisional residence visa – to enter the
Netherlands and apply for a residence permit for the purpose of
family formation with Mr T. It appears that, in the procedure on her
request for a provisional residence visa, it was erroneously not
brought to the applicant’s explicit attention that, if she were
to file a subsequent request for a residence permit, she would be
questioned about any possible criminal antecedents. Her request for a
residence permit was actually rejected and a ten-year exclusion order
was imposed on her after it had appeared – in the context of
her request for a residence permit filed in 2001 – that in 1996
she had been sentenced to imprisonment for a narcotics offence in
Germany. It also appears that she had not been convicted of any crime
since 1996.
The
Courts considers that the fact that a significant period of good
conduct elapses between the date on which a person has served his or
her sentence imposed for a criminal offence and the date on which
immigration is sought by the person concerned necessarily has a
certain impact on the assessment of the risk which that person poses
to society. As regards the severity of the offence at issue, the
Court reiterates that, in view of the devastating effects of drugs on
people’s lives, it understands why the authorities show great
firmness towards those who actively contribute to the spread of this
scourge (see, for instance, Dalia v. France, 19 February 1998,
§ 54, Reports 1998 I; and Baghli v. France,
no. 34374/97, § 48, ECHR 1999 VIII).
The
Court notes that the applicant’s offence was quite serious as
it involved the participation in the importation of a not negligible
quantity of cocaine, which resulted in a prison sentence of two years
and six months (see § 6 above). The severity of this offence
must therefore weigh heavily in the balance. In so far as the
applicant raises arguments based on sentencing guidelines used in the
Netherlands by the Haarlem Regional Court in relation to the decision
to impose an exclusion order on her, the Court does not find it
necessary to determine these arguments as these guidelines did not
exist at the time when the offences of which the applicant was
convicted in Germany were committed.
The
Court also notes that the family life at issue was developed further
during a period when the applicant and Mr T. were aware that the
applicant’s immigration status was precarious. The applicant
must be considered as having become aware as early as 15 August 2001
– thus well before her marriage to Mr T. and the birth of their
child – that there was a serious possibility that an exclusion
order would be imposed on her. Although she has continued to reside
in the Netherlands, she did not do so on the basis of a residence
permit issued to her by the Dutch authorities. Moreover, the
applicant’s presence in the Netherlands – as from the
date on which she was notified of the decision to impose an exclusion
order on her – constituted a criminal offence, even if no
criminal proceedings for that offence have been taken against her. It
therefore appears that her presence in the Netherlands as from that
date was tolerated while she awaited the outcome of the
administrative appeal proceedings taken by her. This cannot, however,
be equated with lawful stay where the authorities explicitly grant an
alien permission to settle in their country (see Useinov,
cited above; and Narenji Haghighi v. the Netherlands (dec.),
no. 38165/07, 14 April 2009). Accordingly, the total length of her
stay in the Netherlands cannot be given the weight attributed to it
by the applicant.
As
regards the question whether there are any insurmountable obstacles
for the exercise of the family life at issue outside of the
Netherlands, the Court notes that the applicant has been born and
raised in Venezuela where she has resided for most of her life and
where she has relatives who could help the applicant and her family
to resettle there. Further noting that her husband stated on 31 March
2004, when heard before the official board of enquiry, that he had a
reasonable command of Spanish and also noting that their child is of
a young and adaptable age, the Court finds that it may reasonably be
assumed that they can make the transition to Venezuelan culture and
society, although the Court appreciates that this transition might
entail a certain degree of social and economic hardship.
Having
regard to all the above considerations, the Court concludes that it
cannot be said that the Netherlands authorities have failed to strike
a fair balance between the competing interests. Consequently, there
has been no violation of the applicant’s right to respect for
her rights guaranteed by Article 8 of the Convention.
Accordingly,
there has been no violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained of a lack of an effective remedy in relation to
her complaint under Article 8 since the Administrative Jurisdiction
Division dismissed her further appeal without any reasoning on the
merits. She relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
applicant submitted that in her further appeal to the Administrative
Jurisdiction Division, the highest competent domestic tribunal in the
matter, she raised six elaborate complaints which were dismissed by
the Division without giving any reasons. In her opinion, it cannot be
said that this part of the legal system constituted an effective
legal remedy for the purposes of Article 13 of the Convention.
The
Government disagreed, pointing out that the fact that the
Administrative Jurisdiction Division, in application of article 91 §
2 of the Aliens Act 2000, rejects an appeal on summary grounds does
not mean – as suggested by the applicant – that it had
not assessed that appeal on its merits.
The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
The
Court further notes that the applicant seeks to complain of a lack of
sufficient reasoning in the final decision given in her case. The
Court considers that this complaint does not, as such, raise an issue
under Article 13 in that the expression “effective remedy”
used in Article 13 cannot be interpreted as entailing an obligation
to give a detailed answer to every argument raised, but
simply an accessible remedy before an authority competent to examine
the merits of a complaint.
68. Therefore,
even assuming that the applicant had an arguable claim for the
purposes of Article 13 (see Gökçe and Demirel
v. Turkey, no. 51839/99, § 69, 22 June 2006),
the fact that the Administrative Jurisdiction Division examined but
rejected the applicant’s further appeal on summary grounds
whilst upholding the impugned ruling does not of itself warrant the
conclusion that the applicant was denied an effective remedy under
Article 13 of the Convention.
69. It
follows that there has been no violation of Article 13 of the
Convention.
FOR THESE REASONS, THE COURT
Declares the application admissible unanimously;
Holds by four votes to three that there has been
no violation of Article 8 of the Convention;
Holds by four votes to three that there has been
no violation of Article 13 of the Convention.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Ziemele, Tsotsoria and Pardalos is annexed to this judgment.
J.C.M.
M.T.
JOINT DISSENTING OPINION OF JUDGES ZIEMELE, TSOTSORIA
AND PARDALOS
We
cannot agree with the Chamber’s conclusions in the present
case.
The
Chamber reiterates that Article 8 of the Convention does not impose a
general obligation on a State to grant entry into the country and
authorise family reunion in its territory. “Nevertheless, in a
case which concerns family life as well as immigration, the extent of
a State’s obligation to admit to its territory relatives of
persons residing there will vary according to the particular
circumstances of the persons involved and the general interest”
(see paragraph 54). The Chamber also reiterates the balancing
exercise that the national authorities are required to carry out:
“Factors to be taken into account in this context
are the extent to which family life is effectively ruptured, the
extent of the ties in the Contracting State, whether there are
insurmountable obstacles in the way of the family living in the
country of origin of one or more of them and whether there are
factors of immigration control (for example, a history of breaches of
immigration law) or considerations of public order weighing in favour
of exclusion. Another important consideration will also be whether
family life was created at a time when the persons involved were
aware that the immigration status of one of them was such that the
persistence of that family life within the host State would be
precarious from the outset. The Court has previously held that where
this is the case it is likely only to be in the most exceptional
circumstances that the removal of the non-national family member will
constitute a violation of Article 8 (see Rodrigues da Silva and
Hoogkamer v. the Netherlands, no. 50435/99, § 39 with
further references, ECHR 2006 I).” (see paragraph 55)
We
note that the applicant learnt of the requirement to sign a formal
statement to the effect that she had never been the subject of a
criminal conviction only after her return to the Netherlands on the
basis of the provisional residence visa. The latter was issued in
view of a positive recommendation from the Aliens Police Service.
Only once she was in the Netherlands, when filing a request for a
temporary regular residence permit, did she discover that
requirement, which she obviously could not comply with and which
explains her refusal to sign the declaration. In our view, it was an
honest move on the part of the applicant. Moreover, under the
national law “an application for a provisional residence visa
is in principle assessed on the basis of the same criteria as a
residence permit” (see paragraph 31). Since August 2001 the
applicant’s immigration status has been examined by various
authorities. It is in fact this examination of the various factors by
the authorities that is of interest for the purposes of Article 8 and
not the outcome per se.
We
note that the Deputy Minister of Justice declared the applicant an
undesirable alien because in 1996 she had participated in the
deliberate importation of cocaine. The Deputy Minister considered
that the interference with the applicant’s right to respect for
her family life was justified in the interests of public safety. At
that stage, no analysis was made of her behaviour since the
conviction, the time that had elapsed since the offence was
committed, other factors indicating that it was a genuine couple, and
so on. Later on the Minister for Immigration also primarily
emphasised the conviction factor, adding that the family would have
no obvious problems in following the applicant to Venezuela. Only the
Regional Court noted that eight years had elapsed since the
conviction, that the marriage and the birth of the child had taken
place after the exclusion order was imposed and that the family could
move to Venezuela, and drew a distinction with the case of Boultif
v. Switzerland, no. 54273/00, ECHR 2001 IX, in which the
applicant had been granted a residence permit and was subject to
expulsion. We agree that the factors established in the Boultif
case, as long as it is recognised that Article 8 also applies to
illegal aliens, all have to be taken into account and balanced
against each other. The problem that we have in this case –
again as long as it is accepted that Article 8 applies – has to
do with the manner in which the Netherlands authorities assessed and
weighed up all the factors. It may well be that they would have
arrived at the same conclusion and it may well be that the
public-order consideration was particularly strong in this case. But
the State is required, under Article 8, to have due regard to the
other factors. For example, it could very well be the case that the
main reason for the applicant giving birth to the child in 2004 was
her age. The authorities should have considered that possibility and
should not have assumed that this was a deliberate act undertaken on
account of the applicant’s difficult immigration situation. In
other words, from the facts, as presented in the case, it is
difficult to see to what extent the authorities had regard to the
personality of the applicant and her true family situation, which
should have been balanced against the public-order considerations.
In
many ways the majority does more justice to the balancing exercise in
its reasoning than the national authorities did (see paragraphs
56–60). We cannot agree with the majority, however, when they
stress the fact that the applicant’s presence in the
Netherlands constituted a criminal offence. This was a situation
which emerged by virtue of the legislation and, we should say, a
certain inconsistency between the administrative-law avenue for
challenging an exclusion order of no suspensive effect and the
position under criminal law regarding the stay of aliens following an
exclusion order (see paragraphs 36-38). The alleged criminal offence
of the applicant (see paragraph 59) was not of her doing for as long
as, at least theoretically, there were remedies by which she could
challenge the exclusion order.
There
has therefore in our view been a violation of the procedural aspect
of Article 8 and a violation of Article 13.
