In the case of Ahmut v. the Netherlands (1),

        The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court B (2), as a Chamber composed of
the following judges:

        Mr R. Bernhardt, President,
        Mr F. Matscher,
        Mr R. Macdonald,
        Mr N. Valticos,
        Mr S.K. Martens,
        Mr A.N. Loizou,
        Mr J.M. Morenilla,
        Mr U. Lohmus,
        Mr E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

        Having deliberated in private on 29 June and 26 October 1996,

        Delivers the following judgment, which was adopted on the
last-mentioned date:
Notes by the Registrar

1.  The case is numbered 73/1995/579/665.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.

2.  Rules of Court B, which came into force on 2 October 1994, apply
to all cases concerning the States bound by Protocol No. 9 (P9).


1.      The case was referred to the Court by the European Commission
of Human Rights ("the Commission") and by the Government of the
Kingdom of the Netherlands ("the Government") on 13 September and
5 October 1995 respectively, within the three-month period laid down
by Article 32 para. 1 and Article 47 of the Convention (art. 32-1,
art. 47).  It originated in an application (no. 21702/93) against the
Netherlands lodged with the Commission under Article 25 (art. 25) on
23 February 1993 by Mr Salah Ahmut, who holds both Moroccan and
Netherlands nationality, and Ms Souad Ahmut and Mr Souffiane Ahmut, who
are Moroccan nationals.

        The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46); the Government's application referred to Article 48
(art. 48).  The object of the request and of the application was to
obtain a decision as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Article 8 of
the Convention (art. 8).

2.      In response to the enquiry made in accordance with
Rule 35 para. 3 (d) of Rules of Court B, the applicants stated that
they wished to take part in the proceedings and designated the lawyer
who would represent them (Rule 31).

3.      The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Bernhardt, the
Vice-President of the Court (Rule 21 para. 4 (b)).  On
29 September 1995, in the presence of the Registrar, the President of
the Court, Mr R. Ryssdal, drew by lot the names of the other
seven members, namely Mr F. Matscher, Mr B. Walsh, Mr R. Macdonald,
Mr N. Valticos, Mr A.N. Loizou, Mr J.M. Morenilla and Mr U. Lohmus
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
Subsequently Mr E. Levits, substitute judge, replaced Mr Walsh, who was
unable to take part in the further consideration of the case.

4.      As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Government,
the applicants' lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 39 para. 1 and 40).  Pursuant
to the order made in consequence, the Registrar received the
applicants' memorial on 11 April 1996 and the Government's memorial on
17 April.

5.      On 9 May 1996 the Commission supplied certain documents from
the file on the proceedings before it which the Registrar had sought
from it on the instructions of the President.

        At the request of the President of the Chamber (Rule 39
para. 1, third sub-paragraph), the Government submitted
additional documents which were received at the registry on 30 May and
3 June 1996.

6.      In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
26 June 1996.  The Court had held a preparatory meeting beforehand.

        There appeared before the Court:

(a) for the Government

    Mr H. von Hebel, Assistant Legal Adviser, Ministry
       of Foreign Affairs,                                     Agent,
    Mr H.A. Groen, Deputy Landsadvocaat,                     Counsel;

(b) for the Commission

    Mr H.G. Schermers,                                      Delegate;

(c) for the applicants

    Mr J.H.M. Nijhuis, advocaat en procureur,                Counsel.

        The Court heard addresses by Mr Schermers, Mr Nijhuis and
Mr Groen and also their answers to its questions.


I.      Particular circumstances of the case

    A.  Background to the case

7.      Salah Ahmut was born in 1945.  He has been a
Netherlands national since 22 February 1990 although he has retained
his original Moroccan nationality.

        Salah Ahmut currently resides in Rotterdam.  He is a trader.

8.      Souffiane (or Soufiane) Ahmut is Salah Ahmut's son.  Souffiane
was born on 27 November 1980 in Morocco.  He is a Moroccan national.
He currently resides in Tangier.

9.      Salah Ahmut married a Ms F.A. in 1967.  Five children were born
to them, namely Hamid (on 6 February 1969), Fouad (on 2 June 1970),
Chaouki Dayaf (on 24 June 1971), Souad (on 28 July 1972) and Souffiane.

        The applicants have stated that the marriage was dissolved in
1984.  However, this statement is not corroborated by documentary
evidence.  In any event, the children remained with their mother after
Salah Ahmut moved to the Netherlands.

10.     Salah Ahmut migrated to the Netherlands in September 1986.  In
November of the same year he married a Netherlands national, Ms K.A.,
who already had three children from a previous marriage.  Her marriage
with Salah Ahmut remained childless.

11.     The Commission's file contains a sworn translation into English
of Ms F.A.'s death certificate, from which it would appear that Ms F.A.
died as a result of a traffic accident on 27 March 1987.

        The Commission's file also contains a sworn translation into
French of a notarial statement which was dated 8 March 1991 and
countersigned by a judge, from which it appears that Hamid, Fouad,
Chaouki Dayaf, Souad and Souffiane are indeed the issue of the marriage
of Salah Ahmut and Ms F.A. and that Salah Ahmut is their legal guardian
under Muslim and Moroccan law.

12.     After their mother's death the children were cared for by
Salah Ahmut's mother, Ms C.A.M.

13.     Salah Ahmut's eldest son, Hamid, entered the Netherlands
without a provisional residence visa (machtiging tot voorlopig
verblijf - see paragraph 42 below) in 1987.  He was expelled in 1989
after a residence permit (vergunning tot verblijf - see paragraph 44
below) was refused him.  He has since resided in Morocco where he is
a trader.

14.     The Commission's file contains a document in French from a bank
in Tangier from which it appears that from April 1986 until
October 1990 Ms C.A.M. received financial support in the amount of
80,000 Moroccan dirhams per year.  Although these sums were paid to her
through an account with a bank in Tangier in the name of a person with
the same family name as Salah Ahmut's second wife, it is not contested
that the money was supplied by Salah Ahmut.

        However, Salah Ahmut never applied to the Netherlands State for
child benefits (kinderbijslag) for Souffiane.

15.     Salah Ahmut and his second wife, Ms K.A., separated in
February 1990.  Following divorce proceedings, their marriage was
dissolved on 21 December of the same year.

        On 11 March 1991 Salah Ahmut married a Ms S.Y., a
Moroccan national, in the Netherlands.  Ms S.Y. had been living in the
Netherlands since 9 December 1990.  She was granted a residence permit
for the purpose of living with her husband on 12 March 1991.

16.     Salah Ahmut's second and third sons, Fouad and Chaouki Dayaf,
entered the Netherlands in 1989 and 1990 respectively.  In October 1990
they were granted residence permits to enable them to prepare for
entrance examinations at the Technical University of Delft.

17.     The Commission's file contains a document in French claimed to
be a sworn translation of a statement by a Tangier physician dated
7 November 1990 to the effect that on that date Ms C.A.M., who was then
80 years old, was suffering from respiratory problems and
kidney failure and was receiving treatment as an out-patient.

18.     The applicants state that between 28 September 1986 (when
Salah Ahmut migrated to the Netherlands - see paragraph 10 above) and
26 March 1990 (the date of Souffiane's arrival in the Netherlands -
see paragraph 19 below) Souffiane visited the Netherlands about
four times, each time for a period of one month.

    B.  Events following Souffiane's arrival in the Netherlands

19.     Souffiane arrived in the Netherlands on 26 March 1990, in the
company of his sister Souad.  Neither held a provisional
residence visa.

20.     Souffiane was enrolled at a primary school in Rotterdam, which
he attended until his eventual return to Morocco in September 1991
(see paragraph 32 below).

21.     On 3 May 1990, Salah Ahmut, Souad and Souffiane appeared before
the officer of the Rotterdam police in charge of matters concerning
aliens.  As Souffiane's legal representative, Salah Ahmut applied to
the Rotterdam police for a residence permit for Souffiane.  Souad filed
a similar application for herself.  The stated purpose of both
applications was to enable Souad and Souffiane to reside with their
father, who had by then become a Netherlands national (see paragraph 7

22.     The same day the Rotterdam police forwarded the applications
to the Deputy Minister of Justice (Staatssecretaris van Justitie) with
an accompanying note. According to the police, neither the death of
Ms F.A. nor the fact of her divorce from Salah Ahmut had been proved
by means of documentary evidence.  Nor could Salah Ahmut show that he
was the children's legal guardian.  For these reasons it was
recommended that the Deputy Minister reject the application in respect
of Souffiane as inadmissible.  It was also recommended to reject
Souad's application on substantive grounds, namely that she had not
been part of Salah Ahmut's family since 1986 nor had she apparently
received financial support from him and that there were other relatives
who could take care of her in Morocco.

23.     On 26 June 1990 the Deputy Minister gave reasoned decisions
rejecting the applications on substantive grounds.  The Deputy Minister
found that actual family ties between Salah Ahmut on the one hand and
Souad and Souffiane on the other had been broken several years earlier,
that Salah Ahmut's moral or financial responsibility for Souad and
Souffiane had not been established and that it had not been shown that
their grandmother or other relatives could not care for them.  He noted
in addition that this decision did not constitute a violation of the
applicants' family life, protected by Article 8 of the Convention
(art. 8): to the extent that such family life existed, adherence to a
policy restricting immigration was necessary in a democratic society
in the interests of the economic well-being of the country.  In the
same decision he ordered the expulsion of Souad and Souffiane from the

24.     On 13 November 1990 Salah Ahmut, Souad and Souffiane lodged
requests with the Deputy Minister for revision (herziening) of his
decision, reserving the right to state their grounds for so doing at
a later stage.

        On 4 January 1991 the Deputy Minister acknowledged the receipt
of these requests and decided that they should have suspensive effect
with regard to Souad's and Souffiane's expulsion (see paragraph 53

25.     On 18 January Salah Ahmut, Souad and Souffiane filed statements
of their grounds for requesting revision.  They stated that the
Deputy Minister's establishment of the facts had been incorrect; in
support of their position they submitted copies of the documents
mentioned in paragraphs 14 and 17 above.  They also observed that
two of Souad's and Souffiane's brothers, Fouad and Chaouki Dayaf, were
in the Netherlands for study purposes and submitted statements from the
Technical University of Delft to the effect that they had applied for

26.     The Deputy Minister referred the matter to the
Aliens Advisory Board (Adviescomissie voor vreemdelingenzaken -
see paragraph 54 below) for advice on 31 January 1991.

27.     As the Deputy Minister did not decide within three months,
Salah Ahmut, Souad and Souffiane, acting on the legal assumption that
their requests had been refused, lodged an appeal with the
Raad van State on 6 March 1991.  They based their appeal on the grounds
put forward in support of their request for revision, to which the
Deputy Minister had not responded.

        In view of this appeal, the Deputy Minister took no further
action with regard to the request for revision of his original decision
although he did not withdraw his request to the Advisory Board for

28.     The Aliens Advisory Board held a hearing on 20 March 1991,
during which both Salah Ahmut - as Souffiane's legal representative -
and Souad were heard.  During this hearing it emerged, inter alia, that
Salah Ahmut had two brothers living in Morocco and that Souad had
become pregnant in the Netherlands by a trader who, although he lived
in Morocco, made frequent visits to the country.

        The Aliens Advisory Board submitted its advice to the
Deputy Minister in a document dated the same day.  Not finding it
established that Salah Ahmut had been divorced from Ms F.A., it
concluded that Souad and Souffiane had never belonged to the family
which Salah Ahmut had established in the Netherlands with Ms K.A.
Souad had reached an age at which she no longer needed to be cared for
and she could, if necessary, take care of Souffiane.  To the extent
that Souad and Souffiane needed additional care, this could be
supplied, if not by Salah Ahmut's mother, then at least by Hamid or by
their two uncles.  Salah Ahmut could continue to provide
financial support from the Netherlands if necessary.

        A decision rejecting the applications for a residence permit
would not, in the Board's view, violate Article 8 of the Convention
(art. 8).  Although the bond between Salah Ahmut on the one hand and
Souad and Souffiane on the other amounted to "family life", there would
be no "interference" with it since it could be continued as before.
Moreover, any "interference" could be considered "necessary in a
democratic society" in the interests of the economic well-being of the

29.     On 19 April 1991 the Deputy Minister notified the
Rotterdam police that Salah Ahmut, Souad and Souffiane had filed an
appeal to the Raad van State and that they would be allowed to await
the outcome in the Netherlands.

30.     The Deputy Minister filed statements of defence to the
single-judge Chamber of the Raad van State on 1 October 1991.  His
arguments corresponded to the grounds on which the Advisory Board had
based its advice (see paragraph 28 above).

31.     Following a hearing on 10 August 1992, the single-judge Chamber
of the Raad van State dismissed the appeals by an oral judgment on
24 August.  Its grounds for so doing were essentially those suggested
by the Deputy Minister.  It noted in addition that in its view the
Netherlands were not under a positive obligation to grant Souad or
Souffiane a residence permit, since the latter's interests had to be
balanced against the general interest served by the implementation of
a restrictive immigration policy.

        Its reasoning included the following:

        "[The decision not to admit Souffiane] does not violate
        Article 8 (art. 8) of the European Convention on Human Rights
        and Fundamental Freedoms.  It cannot be said that there is an
        interference with family life [familie- of gezinsleven] as
        Souffiane is not being deprived of residence rights
        [verblijfstitel] which formerly enabled him to carry on his
        family life with the appellant, his father.  Nor can any
        positive obligation incumbent on the respondent to grant him
        residence rights be derived from Article 8 (art. 8), since
        Souffiane's above-described circumstances must be balanced
        against the general interest, which the respondent must uphold,
        which requires the maintenance of a restrictive immigration

32.     Souffiane left the Netherlands on 30 September 1991.  As from
the same date his name was removed from the municipal population
register (bevolkingsregister) of the municipality of Rotterdam.

        He has been at a boarding-school in Morocco ever since.  The
applicants state that he has made frequent visits to his father in the
Netherlands, and that the latter has visited him in Morocco.

33.     The introductory application to the Commission, which was
lodged on 23 February 1993, gives Souffiane's and Souad's place of
residence on that date as Tangier.

        Other members of the Ahmut family at present living in Morocco
are Salah Ahmut's eldest son Hamid and two of Salah Ahmut's brothers.
It is not known whether Salah Ahmut's mother is still alive.

II.     Relevant domestic law and practice

    A.  General

34.     The following is a description of the regime governing the
admission of aliens to Netherlands territory which applied, at the time
of the events complained of, to aliens in general.  Binding rules were,
and are, laid down in the Aliens Act (Vreemdelingenwet), the
Aliens Ordinance (Vreemdelingenbesluit) and the Aliens Schedule
(Voorschrift Vreemdelingen).

35.     Until 1 January 1994, the Government's policy was defined in
the 1982 Aliens Circular (Vreemdelingencirculaire 1982) and the
1984 Border Guarding Circular (Grensbewakingscirculaire).  The
competent tribunals have consistently held that it was incompatible
with general principles of good governance (algemene beginselen van
behoorlijk bestuur) to deviate from the policy rules set out in these
documents to the detriment of an alien.

36.     Special regimes, not relevant to the present case, applied to
nationals of European Union or Benelux member States, to nationals of
certain other States (not including Morocco) under bilateral treaties
and to refugees as defined in Article 1 A of the Geneva Convention of
28 July 1951 relating to the Status of Refugees
(United Nations Treaty Series - UNTS - no. 2545, vol. 198, pp. 137 et
seq.) and Article 1 of the Protocol relating to the Status of Refugees
of 31 January 1967 (UNTS no. 8791, vol. 606, pp. 267 et seq.).

37.     Under section 6 (1) of the Aliens Act, to be allowed access to
the Netherlands an alien had to qualify for admission - that is, either
fulfil the requirements of section 8 of the Aliens Act
(see paragraph 40 below), or possess a residence or settlement permit
(see paragraphs 44 and 49 below) - and hold a valid passport or
equivalent identity document containing a visa if a visa requirement
applied (see paragraphs 41 and 42 below).

38.     An alien who was refused access to Netherlands territory had
to leave the country as soon as possible and could, if necessary, be
forcibly removed (section 7 of the Aliens Act).

39.     An alien who had been granted access but did not, or no longer,
qualify for admission could be expelled (section 22 of the Aliens Act).

    B.  Visa requirements

40.     Under section 8 of the Aliens Act taken together with
section 46 of the Aliens Ordinance, aliens who, upon entering the
country, had complied with the required formalities at the border were
admitted if and for so long as they conformed with the Aliens Act and
delegated legislation, had sufficient means to cover the cost of living
in the Netherlands and of the return journey, and did not threaten
public peace, public order or national security.  The right to
admission based on section 8 was a temporary right based directly on
the law and therefore not conditional on the grant of any permit.
However, in principle, a visa was required (see paragraph 41 below) and
the duration of the right was limited: to the period of validity of the
visa, or to three months in the case of those aliens not subject to
visa requirements.

41.     Subject to certain exceptions not relevant to the present case,
to be granted access to the Netherlands aliens had to hold a
valid passport containing a transit visa (transitvisum), valid for up
to three days, or a travel visa (reisvisum), valid for up to
three months (section 41 (1) of the Aliens Ordinance).

42.     To obtain access to the Netherlands with a view to remaining
for more than three months, aliens who had not already been granted a
residence permit had to hold a valid passport containing a provisional
residence visa (section 41 (1) of the Aliens Ordinance).  A provisional
residence visa was valid for a period of up to six months (section 8
of the Aliens Act).

43.     A provisional residence visa could be applied for abroad,
through a consular or diplomatic representative, or in the Netherlands,
via the head of the local police.  Applications were decided on by the
Minister for Foreign Affairs (section 1 of the Aliens Ordinance and
section 7 of the Sovereign Ordinance (Souverein Besluit) of
12 December 1813) after consultation with the Minister of Justice
(Minister van Justitie).  Applications for such a visa were considered
according to the same criteria as those applying to applications for
a residence permit, since such a visa would only be issued if the alien
concerned was expected to be granted such a permit.

    C.  The residence permit

44.     Aliens wishing to reside in the Netherlands for longer than
three months (see paragraph 40 above), had to hold a residence permit
(section 9 of the Aliens Act).  Such a permit was applied for to, and
granted by, the Minister of Justice (section 11 (1) of the Aliens Act).
It was valid for up to one year and renewable (section 24 of the
Aliens Schedule).

45.     A residence permit could be applied for either in the
Netherlands (through the head of the local police - section 52 of the
Aliens Ordinance) or abroad (through a diplomatic or consular
representative).  The application had to be submitted by the alien him
or herself or, if he or she was a minor, by his or her
legal representative (section 28 (4) of the Aliens Schedule).

46.     The granting of a residence permit was delegated by the
Minister of Justice to the head of the local police in certain cases,
including cases where the alien applying for such a permit already held
a provisional residence visa.

        In principle, a residence permit was refused an alien who did
not already hold a provisional residence visa (1982 Aliens Circular,
Chapter A4, para. 3.3).

47.     A residence permit could be made subject to restrictions
(section 11 (2) of the Aliens Act).

48.     An alien holding a valid residence permit was allowed to
re-enter Netherlands territory after having left it.

    D.  The settlement permit

49.     The Minister of Justice could grant a settlement permit
(vergunning tot vestiging - section 13 of the Aliens Act); such a
permit was normally granted only after the alien had been legally
resident in the Netherlands for five consecutive years.

        After such an initial period, a settlement permit would be
granted unless there was no reasonable certainty that the alien would
be able to meet the costs of living, or if he or she had committed
serious breaches of public peace or public order or constituted a
serious threat to national security.

    E.  Relevant policy

50.     Given the situation obtaining in the Netherlands with regard
to population size and employment, government policy was, and remains,
aimed at restricting the number of aliens admitted to the Netherlands.
In general, aliens were only granted admission for residence purposes

        (a)   the Netherlands were obliged under international law to
do so, as in the case of citizens of the European Union or
Benelux member States and refugees covered by the Geneva Convention
relating to the Status of Refugees;

        (b)   this served "essential interests of the Netherlands"
(wezenlijk Nederlands belang), e.g. economic or cultural interests;

        (c)   there were "cogent reasons of a humanitarian nature".

        In addition, aliens who, under this policy, were eligible for
admission were in principle expected to have sufficient means at their
disposal to cover the costs of living and not to threaten public peace
or public order or national security.

        These were general rules which did not apply in the same way
to all categories of aliens, specific criteria having been developed
applicable to certain categories (1982 Aliens Circular, Chapter A4,

51.     Specific criteria applied to the admission of aliens in
connection with the reunification or establishment of families
involving spouses, partners or close relatives of Netherlands nationals
or aliens holding residence or settlement permits.  Under these
criteria, it was possible that admission could be granted for the
purpose of reuniting or establishing a family even if the applicable
conditions had not all been met, if there were "cogent reasons of a
humanitarian nature" (1982 Aliens Circular, Chapter B19, para. 1.1).

52.     Government policy with regard to the admission of aliens with
a view to continuing or establishing family life in the Netherlands
(gezinshereniging) was defined in Chapter B19 of the Aliens Circular.

        This chapter contained an express reference to Article 8 of the
Convention (art. 8).  It was stated in paragraph 1.2 that the refusal
of a residence permit did not constitute an "interference" with the
right to family life if the relative with whom the alien wished to
continue or establish family life could reasonably be expected to
follow the alien to a place outside the Netherlands.  There might,
however, be a positive obligation incumbent on the
Netherlands authorities to grant a residence permit.  To determine
whether this was the case, the interests of the State in denying such
a permit should be weighed against the individual's interests, taking
into account the age of the persons involved, their situation in their
country of origin, their degree of dependence on relatives in the
Netherlands and, if applicable, the Netherlands nationality of any
persons involved.  If a residence permit was refused after an
examination for compliance with the requirements of Article 8 (art. 8),
this fact was to be mentioned in the decision.

        Minor children - minority being determined according to
Netherlands law (Chapter B19, para. - who "actually belonged
to the family" (feitelijk behoren tot het gezin), for instance children
from a previous marriage of a person lawfully resident in the
Netherlands, were granted a residence permit (Chapter B19,
para. 2.1.2).

    F.  Legal remedies

53.     Until the General Administrative Law Act entered into force on
1 January 1994, an alien could, in the event of a refusal to grant a
residence permit, apply in writing to the Minister of Justice for
administrative revision of his decision (section 29 (1) of the
Aliens Act).  If such an application was not decided on within
six months, it was deemed to have been refused (section 29 (2)).

        Such a request for revision did not suspend the alien's
expulsion unless it was made more than one month before the expiry of
the period during which the alien was allowed to remain in the
Netherlands (section 32 (2)).  It was, however, open to the Minister
to decide that the request would have "suspensive effect".

54.     The advice of the Aliens Advisory Board had to be obtained if
a request was made for revision of a decision to expel an alien whose
main place of residence for three months or more had been in the
Netherlands and who had complied with the formalities required by the
Aliens Act (section 31 (1) (c) taken together with section 29 (1) (g)
of the Aliens Act).

55.     In the event of a negative decision, or of failure to decide
within due time, an appeal lay to the Judicial Division of the
Raad van State (section 34 (1) of the Aliens Act).  However, no
application could be made to the President of the Judicial Division for
a provisional measure or for acceleration of the proceedings
(section 34 (3)).


56.     Salah Ahmut, Souad and Souffiane applied to the Commission on
23 February 1993.  They relied on Article 8 of the Convention (art. 8),
complaining that the refusal of the Netherlands authorities to grant
Souad and Souffiane residence permits for the purpose of residing with
their father violated their right to respect for their family life.

57.     On 12 October 1994 the Commission declared the application
(no. 21702/93) admissible in so far as it concerned Salah Ahmut and
Souffiane and inadmissible in so far as it concerned Souad.  In its
report of 17 May 1995 (Article 31) (art. 31), it expressed the opinion,
by nine votes to four, that there had been a violation of Article 8
(art. 8).

        The full text of the Commission's opinion and of the dissenting
opinion contained in the report is reproduced as an annex to this
judgment (1).
Note by the Registrar

1.  For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-VI), but a copy of the Commission's report is obtainable
from the registry.


58.     The applicants concluded their memorial by expressing the
opinion that the Commission had "rightly judged that there had been a
violation of Article 8 (art. 8)".

        The Government concluded that there had been no interference
with the applicants' right to respect for their family life; in the
alternative, that there was no positive obligation incumbent on them
to grant Souffiane permission to remain in the Netherlands; in the
further alternative, that any interference, if interference there had
been, was justified under Article 8 para. 2 (art. 8-2).



59.     The applicants contended that the refusal to grant Souffiane
a residence permit, which would have allowed him to live in the
Netherlands with his father, constituted a violation of their right to
respect for their family life.  They relied on Article 8 of the
Convention (art. 8), which provides:

        "1.   Everyone has the right to respect for his private and
        family life, his home and his correspondence.

        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."

        The Commission considered that there had been a violation of
that provision (art. 8), whereas the Government did not.

    A.  Whether the bond between the applicants amounted to
        "family life"

60.     As the Court has frequently held, it follows from the concept
of family on which Article 8 (art. 8) is based that a child born of a
marital union is ipso iure part of that relationship; hence, from the
moment of the child's birth and by the very fact of it, there exists
between him and his parents a bond amounting to "family life"
(see, as a recent authority, the Gül v. Switzerland judgment of
19 February 1996, Reports of Judgments and Decisions 1996-I,
pp. 173-74, para. 32), which subsequent events cannot break save in
exceptional circumstances.

        It was not suggested that any such exceptional circumstances
were present in this case.  The existence of "family life" between the
applicants is therefore established.

    B.  Whether the case concerns an "interference" with the exercise
        of the applicants' right to respect for their "family life" or
        else an alleged failure on the part of the respondent State to
        comply with a "positive obligation"

61.     The Commission, with whom the applicants concurred, considered
that the refusal to grant a residence permit to Souffiane amounted to
an "interference" with the applicants' exercise of their right to
respect for their family life.

62.     The Government, relying on the Court's judgment in the case of
Gül v. Switzerland, argued that refusal of initial permission to remain
in the country did not constitute an "interference" with aliens'
exercise of their right to respect for their family life.  Such refusal
was to be distinguished from withdrawal of resident status, as occurred
in the Berrehab case (see the Berrehab v. the Netherlands judgment of
21 June 1988, Series A no. 138), which interfered with an alien's
exercise of the right to respect for his family life by making it
impossible to continue it in the way to which he was accustomed.

63.     The Court reiterates that the essential object of Article 8
(art. 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 (art. 8) do not lend themselves to precise definition.
The applicable principles are, nonetheless, similar.  In both contexts
regard must be had to the fair balance that has to be struck between
the competing interests of the individual and of the community as a
whole; and in both contexts the State enjoys a certain margin of
appreciation (see, most recently, the above-mentioned Gül judgment,
pp. 174-75, para. 38).

        The present case hinges on the question whether the
Netherlands authorities were under a duty to allow Souffiane to reside
with his father in the Netherlands, thus enabling the applicants to
maintain and develop family life in its territory.  For this reason the
Court will view the case as one involving an allegation of failure on
the part of the respondent State to comply with a positive obligation.

    C.  Whether the respondent State has failed to comply with a
        "positive obligation"

        1.    Arguments before the Court

64.     The applicants relied on the fact that the
Netherlands immigration authorities had permitted Souffiane to remain
in the Netherlands pending the outcome of the application proceedings
for a residence permit, thus allowing a situation to arise in which the
applicants had developed closer ties than was formerly the case.

        They also argued that the Netherlands authorities had had
insufficient regard to the particular circumstances of Souffiane's life
in Morocco.  Souffiane had been 9 years old when he arrived in the
Netherlands.  His only relatives in Morocco were a brother, two uncles
and a grandmother.  None of these had registered their willingness to
take care of Souffiane, with the exception of the grandmother; she,
however, was in her eighties and in poor health and accordingly unable
to do so.  As regards Souffiane's sister Souad, who had been refused
a residence permit at the same time as Souffiane, she was a
young unmarried mother and her personal circumstances were such that
she could not be expected to take care of Souffiane either.

        In any event, Salah Ahmut had Netherlands nationality.  He had
a business in the Netherlands.  In the circumstances it was not
realistic to expect him to return to Morocco to continue his
family life with Souffiane there.

        Finally, they claimed that the decision to send Souffiane to
a boarding-school in Morocco in 1991 had been taken because it was at
that time unclear whether he would be allowed to remain in the
Netherlands, and the time had come to make choices with regard to his

65.     At the time when it formed its opinion, the Commission was
under the impression that Souffiane had never returned to Morocco and
that consequently Souffiane had lived with his father for approximately
six years.  It would in its view have been unreasonable to separate
father and son after so long a period.

        In addition, it noted that Salah Ahmut was Souffiane's closest
living relative, his mother being dead.  Like the applicants, it
considered that the fact of Salah Ahmut's Netherlands nationality
should have been taken into account in the applicants' favour.
Finally, it found that it was uncertain to what extent, if at all,
Souffiane's relatives in Morocco might be willing and able to take
proper care of him.

        In these circumstances, and weighing Souffiane's interests
against those of the respondent State to control immigration, the
Commission found that the balance struck by the Netherlands authorities
had not been fair.

66.     The Government denied ever having allowed Souffiane to reside
in the Netherlands.  The fact that Souffiane had not been expelled was
due to the fact that the application for review of the decision to
refuse him a residence permit had suspended his expulsion, as had his
appeal to the Judicial Division of the Raad van State.

        Moreover, the Government's view was that it was not under an
obligation to facilitate the development of family life between the
applicants on Netherlands territory.  Although it was true that
Salah Ahmut had acquired Netherlands nationality, this was not
decisive; he had also retained his original Moroccan nationality and
was free to return to Morocco at any time to resume his family life
with Souffiane there.

        Disagreeing on this point with the applicants and the
Commission, the Government considered that Souffiane's relatives in
Morocco could be considered capable of taking proper care of him.

        2.    The Court's assessment

67.     The applicable principles have been stated by the Court in its
Gül judgment as follows (loc. cit., para. 38):

(a)     The extent of a State's obligation to admit to its territory
relatives of settled immigrants will vary according to the particular
circumstances of the persons involved and the general interest.

(b)     As a matter of well-established international law and subject
to its treaty obligations, a State has the right to control the entry
of non-nationals into its territory.

(c)     Where immigration is concerned, Article 8 (art. 8) cannot be
considered to impose on a State a general obligation to respect
immigrants' choice of the country of their matrimonial residence and
to authorise family reunion in its territory.

68.     Accordingly, as in the Gül case, in order to establish the
scope of the State's obligations, the facts of the case must be

69.     After Salah Ahmut went to the Netherlands in 1986 Souffiane was
cared for by others, first Souffiane's mother, and after the latter's
death in 1987, his grandmother (see paragraphs 9 and 12 above).  Apart
from the period between 26 March 1990 and 30 September 1991, which he
spent in the Netherlands, and a number of visits to his father
(see paragraph 18 above), Souffiane has lived in Morocco all his life.
It follows that Souffiane has strong links with the linguistic and
cultural environment of his country.  In addition, he still has family
there, namely his elder brother Hamid, his sister Souad, two uncles and
possibly his grandmother (see paragraph 33 above).

70.     The fact of the applicants' living apart is the result of
Salah Ahmut's conscious decision to settle in the Netherlands rather
than remain in Morocco.

        In addition to having had Netherlands nationality since
February 1990, Salah Ahmut has retained his original
Moroccan nationality (see paragraph 7 above).  Souffiane has
Moroccan nationality only (see paragraph 8 above).

        It therefore appears that Salah Ahmut is not prevented from
maintaining the degree of family life which he himself had opted for
when moving to the Netherlands in the first place, nor is there any
obstacle to his returning to Morocco.  Indeed, Salah Ahmut and
Souffiane have visited each other on numerous occasions since the
latter's return to that country.

71.     It may well be that Salah Ahmut would prefer to maintain and
intensify his family links with Souffiane in the Netherlands.  However,
as noted in paragraph 67 above, Article 8 (art. 8) does not guarantee
a right to choose the most suitable place to develop family life.

72.     By sending Souffiane to boarding-school, Salah Ahmut has
arranged for him to be cared for in Morocco.  The Court therefore need
not go into the question whether Souffiane's relatives living in
Morocco are willing and able to take care of him.

73.     In the circumstances the respondent State cannot be said to
have failed to strike a fair balance between the applicants' interests
on the one hand and its own interest in controlling immigration on the

        It follows that no violation of Article 8 (art. 8) can be found
on the facts of the present case.


        Holds by five votes to four that there has been no violation
        of Article 8 of the Convention (art. 8).

        Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 28 November 1996.

Signed: Rudolf BERNHARDT

Signed: Herbert PETZOLD

        In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the following
separate opinions are annexed to this judgment:

        (a)   dissenting opinion of Mr Valticos;
        (b)   dissenting opinion of Mr Martens, joined by Mr Lohmus;
        (c)   dissenting opinion of Mr Morenilla.

Initialled: R. B.

Initialled: H. P.



        The decision of the small majority of the Chamber who have held
that there has been no breach of the Convention in the instant case is
to be regretted.

        Few human rights are as important as a father's right to have
his son by him, to guide him, to supervise his education and training
and to help him choose and begin a career and as it were to prepare the
projection of his own life into the future by contributing to a happy
and productive life for his child.

        Similarly, few rights are as important as an adolescent son's
right to live with his father and to take advantage of the atmosphere
of affection as well as of the father's help and advice.

        Alongside these fundamental factors, the arguments in support
of the Netherlands authorities' decision to separate the son from his
father (arguments such as the actual length of the son's visits to his
father) do not weigh very heavily and even reflect a restrictive spirit
incompatible with the very meaning of the Convention and the concept
of human rights.

        The fact that the son did not live with his father for very
long is due to the vicissitudes of the father's marriage, but it has
been established that the father has always taken an interest in his
son, has helped him and even had him come to stay with him in the
Netherlands, even if only for a short period.

        To these considerations, which should have been decisive, must
be added a troubling feature.  The father had acquired
Netherlands nationality, and in any country, a national is entitled to
have his son join him, even if the son does not have the same
nationality.  How does it come about that in the present case this
right was refused him?  I cannot think that it is because the
Dutch father was called "Ahmut".  However, the suspicion of
discrimination must inevitably lurk in people's minds.

        It is to be hoped that the Netherlands Government will swiftly
remedy this blunder.


1.      I am unable to persuade myself that, as found by the majority,
the Netherlands did not violate Article 8 (art. 8).

2.      I am worried that, although this case could have easily been
distinguished from that of Gül v. Switzerland (see the Court's judgment
of 19 February 1996, Reports of Judgments and Decisions 1996-I,
p. 159), a Chamber composed for the most part of different members has
chosen to follow that unfortunate precedent.  In this context I refer
to what I have said in paragraph 15 of my dissenting opinion in the
latter case.  I fear that the present decision marks a growing tendency
to relax control, if not an increasing preparedness to condone harsh
decisions, in the field of immigration.

3.      For my part, I maintain my views as set out in that dissenting
opinion.  Consequently, I find that the refusal of the
Netherlands authorities to admit Souffiane in principle engages their
responsibility under Article 8 para. 1 (art. 8-1).  What remains to be
ascertained is whether or not their refusal was justified under
Article 8 para. 2 (art. 8-2).

4.      The refusal was, without any doubt, in accordance with the law
and served a legitimate aim.  It was, however, in my opinion

5.      For the reasons given in my above-mentioned dissenting opinion,
I infer from the Court's Abdulaziz, Cabales and Balkandali
v. the United Kingdom judgment of 28 May 1985 (Series A no. 94) that
where the issue of family reunification arises in a case of "immigrants
who already had a family which they left behind", the State of
settlement is in principle bound to respect the choice of immigrants
who have achieved settled status there and, accordingly, must as a rule
admit members of the family left behind by such settlers.  There may,
perhaps, be exceptions to this rule.  However, in my opinion, where
reunion with the immigrant's little children is at stake it is very
difficult to admit that the rule should not be followed.  So much for
general principles.  I now turn to the case at hand.

6.      Salah Ahmut has achieved settled status in the Netherlands, in
fact the best possible settled status: he has acquired
Netherlands nationality.  Admittedly, one might be tempted to doubt
whether he has acquired that status by means which are above suspicion.
However, since the Government have not relied on this feature of the
case and have accepted that Salah Ahmut is a Netherlands national, the
principle of equality requires that the Court apply the same standards
as it would apply to those whose Netherlands nationality is
irreproachable.  In the context of the present case the fact that the
Netherlands authorities have allowed Salah Ahmut to retain his
Moroccan nationality is immaterial.

7.      After Souffiane's mother died, Salah Ahmut decided to take care
of his son who - at the moment which the Government have rightly
accepted as decisive, i.e. the moment of the refusal - was only
9 years old.  Whether or not his father had then started a new family
in the Netherlands, whether or not Souffiane might possibly be brought
up by his grandmother, his uncles, his brothers or sister, is all, in
principle, immaterial as long as Souffiane's father is ready, willing
and able to do so.  If a father who is a Netherlands national wants to
live with and care for his 9-year-old child in the Netherlands both
father and child are, in principle, entitled to have that decision

8.      There are, in my opinion, no grounds which justify an
exception.  The mere fact that the child is an alien does not do so
(see paragraphs 5 and 6 above).  Nor does the fact that Salah Ahmut,
within a year after he had assumed the care of Souffiane, sent his son
to a boarding-school in Morocco, if only because this fact occurred
after the decisive date.

9.      For these reasons I find that the refusal of the
Netherlands authorities to admit Souffiane constitutes a violation of
their obligations under Article 8 of the Convention (art. 8).


1.      To my regret I cannot share the conclusion of the majority in
finding that Article 8 of the Convention (art. 8), which recognises
everyone's right to respect for his family life, has not been violated
by the refusal of the Netherlands authorities to admit Souffiane Ahmut
- a 9-year-old child who has lost his mother in Morocco - to live with
his father, a well-established immigrant who at the time of application
had acquired Netherlands nationality.

2.      In view of these circumstances, the measures adopted by the
Netherlands authorities do not appear to be either necessary or
proportionate to the legitimate aims that Article 8 para. 2 (art. 8-2)
foresees, and therefore not justified under this provision (art. 8-2).
To deny a father and son their right to be together when the son is at
an age at which he needs his father's care and guidance, particularly
since his mother has died, and to deny a national of the Netherlands
the right to have his son begin an education in the adopted country of
which he is a national according to the law, is in my opinion contrary
not only to the European Convention of Human Rights but also to
"cogent reasons of a humanitarian nature" as set forth in the
national legislation (1982 Aliens Circular, Chapter B19, paras. 1.1 and

3.      Furthermore, human rights are recognised in international
instruments in the form of legal formulas imposing on national
authorities positive or negative obligations to ensure the effective
enjoyment of those rights and liberties.  The juridical treatment of
these provisions, their interpretation and application by the
authorities - and, obviously, by the courts - should in my view be in
accordance with the humanitarian grounds for which they were
established, avoiding excessive formalism.  These humanitarian reasons
are to me more "cogent" than the opposite interpretation of the
conventional text offered by the majority.

4.      The subsequent education of the child in Morocco and the fact
that he is now 14 years old and has grown up outside the Netherlands
in the care of other relatives are circumstances that should not be
considered when deciding the present case.  They are facts extraneous
to the measures complained of, and, as such, they merely highlight the
fatal consequences of impeding the reunited family life which the
applicants desired.  The benefit of hindsight when deciding
judicial cases several years after a complaint has been lodged may
certainly prove to be of use when assessing the reality of a risk but
never, in my opinion, to judge the conformity with the Convention of
impugned measures adopted by national authorities at the time.

        This opinion is not inconsistent with the principles set out
in paragraph 67.  The fact that Mr Salah Ahmut is a national of the
Netherlands, and his child's age at the time of the refusal, are in my
view, decisive in finding a violation in the present case.