Application No. 19140/91

by E.S.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting in private on 11 January 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 November 1991 by E.S. against the Netherlands and registered on 28 November 1991 under file No. 19140/91;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having regard to:

-   the Commission’s decision of 5 May 1993 to communicate the application;

-   the observations submitted by the respondent Government on 4 August 1993 and the applicant’s failure to reply to these observations;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Moroccan citizen, born in 1962, and resides at Gouda, the Netherlands. Before the Commission he is represented by Mr. E.H. Pietersen, an adviser in Breda.

On 22 February 1978 the applicant married a Moroccan national in Morocco. On 2 March 1980 the applicant entered the Netherlands and on 12 March 1980 his father, on the applicant’s behalf, requested a residence permit for family reunification. Since the applicant’s father had stated that the applicant was under the age of eighteen, the Aliens Department (Vreemdelingendienst) assumed that the applicant formed part of his parents’ family and did not ask the applicant or his father to make a formal statement relating to the applicant’s civil status and children. On 10 April 1980 the applicant obtained a residence permit on the basis of family reunification with his parents.

In August 1980 his wife in Morocco gave birth to a son and in July 1982 to a daughter. This marriage was dissolved by the applicant’s repudiation of his wife in 1984. He married another Moroccan national in Morocco on 23 July 1984.

On 1 January 1985 the applicant obtained a permanent residence permit (vergunning tot vestiging). On 26 January 1986 the applicant’s second wife was granted a residence permit for reunification with her husband. In December 1987 the applicant’s second wife gave birth to a daughter.

As it had appeared that the applicant was married in Morocco at the time of his first request for a residence permit on 12 March 1980, the Deputy Minister of Justice withdrew the applicant’s residence permit on 8 April 1988.

By decision of 25 October 1989 the Deputy Minister of Justice, in accordance with the advice of the Advisory Commission for Aliens Affairs (Adviescommissie voor Vreemdelingenzaken), rejected the applicant’s request to reconsider the decision of 8 April 1988. The Deputy Minister noted that, when the applicant requested his first residence permit on 12 March 1980, neither he nor his father had informed the Dutch authorities that he was married. The Deputy Minister considered that if the Dutch authorities had been informed about this marriage the applicant would not have obtained a residence permit, since in view of this marriage he could no longer be considered as forming part of his parents’ family.

Assisted by a lawyer the applicant filed an appeal with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State). Submitting that he had resided already for nine years in the Netherlands, that his second wife also lived in the Netherlands, that their daughter had been born there and that he and his family had adapted themselves entirely to Dutch society, he contested the Deputy Minister’s finding that there were no compelling humanitarian reasons for granting him a residence permit.

 By decision of 31 May 1991 the Judicial Division rejected the appeal. It considered that the applicant’s residence in the Netherlands had only become possible due to his failure to submit correct information. Having regard to the fact that the applicant was born and raised in Morocco and that he was 17 or 18 years old when he arrived in the Netherlands, the Judicial Division considered that the applicant and his family could return to Morocco.

COMPLAINT

The applicant complains that the withdrawal of his permanent residence permit violates his right to respect for his private and family life within the meaning of Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 November 1991 and registered on 28 November 1991.

On 9 September 1992, pursuant to Rule 47 para. 2(a) of the Commission’s Rules of Procedure, the respondent Government were invited to submit certain factual information.

The Government submitted the information on 27 October 1992. The applicant’s comments in reply were submitted on 3 December 1992.

On 5 May 1993 the Commission (Second Chamber) decided to invite the respondent Government to submit written observations on the admissibility and merits of the application.

The Government’s observations were submitted on 4 August 1993 and, by letter of 12 August 1993, these observations were communicated to the applicant’s representative, who was invited to submit the applicant’s comments in reply before 30 September 1993.

When the time-limit for the submission of the applicant’s observations in reply expired on 30 September 1993, no observations in reply had been received.

By letter of 3 November 1993 the applicant’s representative was informed that the Commission would proceed with its examination of the case and was warned that, in view of the circumstances of the case, the Commission could conclude that the applicant does not intend to pursue his application. No reaction on the part of the applicant has been received.

REASONS FOR THE DECISION

The Commission recalls that the applicant has been invited on 12 August 1993 to submit his observations in reply to the observations presented by the Netherlands Government on the admissibility and merits of the application. The Commission notes that the applicant, whose last correspondence dates back to 3 December 1992, has not replied to this invitation, notwithstanding the reminder sent to him on 3 November 1993.

Having regard to Article 30 para. 1(a) of the Convention, the Commission concludes from the above that the applicant does not wish

to pursue his application. Moreover, the Commission finds no special circumstances regarding respect for Human Rights, as defined in the Convention, which require the continued examination of the application, in accordance with Article 30 para. 1 in fine of the Convention.

For these reasons, the Commission, unanimously,

 DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the Second Chamber     President of the Second Chamber

  (K. ROGGE)      (S. TRECHSEL)