THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42620/02 
by Khadra MOHAMMED YUUSUF 
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 2 December 2004 as a Chamber composed of:

Mr B.M. Zupančič, President
 Mr J. Hedigan
 Mr L. Caflisch
 Mr C. Bîrsan
 Mrs A. Gyulumyan
 Ms R. Jaeger, 
 Mr E. Myjer, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 21 November 2002,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Khadra Mohammed Yuusuf, is a Somali national, who was born in 1965 and lives in Sint Maartensdijk (Netherlands). The applicant was initially represented before the Court by Ms M.C. Boon of the Legal Aid Bureau (Bureau voor Rechtshulp) in Leeuwarden. As from 28 May 2004 Mr H.A. Limonard of that Bureau has replaced Ms Boon as the applicant's representative. The Netherlands Government (“the Government”) are represented by their Agent, Mr J. Schukking of the Ministry of Foreign Affairs.

A.  The circumstances of the case

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

1. Criminal proceedings

The applicant, her husband and their two children, born in 1991 and 1993 respectively, entered the Netherlands on 10 October 1994. They were given temporary accommodation in a refugee holding centre.

On 1 November 1994 the applicant was involved in a fight with one or two persons, apparently security guards. It was stated at her trial that she had come to the aid of her husband, who was being held fast. The applicant was then heavily pregnant (the child was born on 16 December).

On 7 July 1995 the applicant came to blows with another woman in the refugee centre over the use of the washing machine. The other woman, whose boyfriend was a Netherlands national, filed a complaint with the police; the applicant did not.

On 13 March 1996 a single-judge chamber (politierechter) of the 's-Hertogenbosch Regional Court (arrondissementsrechtbank) found the applicant guilty of two counts of assault. The applicant was sentenced to a NLG 500 fine, or ten days' detention in lieu, suspended for two years.

The prosecution appealed, but withdrew its appeal on 28 January 1997.

2. Immigration proceedings

The applicant, her husband and their children lodged applications for asylum in the Netherlands or, in the alternative, residence permits on humanitarian grounds on 13 October 1994. On 1 December 1994 the Deputy Minister of Justice (staatssecretaris van Justitie) gave decisions rejecting these.

On 3 January 1995 the applicant and her family lodged objections (bezwaar). On 29 July 1996 the Deputy Minister dismissed these.

On 4 September 1996 the applicant and her family lodged appeals to the Regional Court of the Hague.

On 1 September 1997 and 1 February 1999 respectively a fourth and a fifth child were born to the applicant and her husband.

On 20 October 1999 the Regional Court declared the said appeals well-founded and ordered the Deputy Minister to reconsider his decisions.

No decision being forthcoming, the applicant and her family on 13 April 2000 lodged an appeal to the same Regional Court against the constructive refusal of their asylum requests. On 24 July 2000 the Regional Court declared the appeal well-founded and ordered the Deputy Minister to decide within six weeks from the date of transmission of its – the Regional Court's – decision.

The applicant was heard by a board composed of civil servants on 20 September 2000.

On 5 October 2000 the applicant and her family again appealed to the Regional Court against a constructive refusal of their asylum requests.

By decisions of 6 October 2000 the Deputy Minister finally dismissed the objections. However, the applicant's husband and their children were granted residence permits valid from 14 October 1997, pursuant to a policy guideline (the “three-year policy”) adopted in the meanwhile. This policy entitled asylum seekers to a residence permit if their asylum requests had not been finally decided within three years, provided that they had not been convicted of any crime in the meantime.

On 6 October 2000 the Deputy Minister informed the applicant that she was allowed to await the outcome of the appeal proceedings in the Netherlands.

The applicants informed the Regional Court that they wished their appeals lodged on 5 October 2000 to be considered as also directed against the Deputy Minister's decisions of 6 October.

A hearing took place on 16 April 2002.

On 14 June 2002 the Regional Court gave its decision. It found, for various reasons not relevant to the case now before the Court, that the applicants were no refugees in the sense of the 1951 United Nations Convention Relating to the Status of Refugees, and therefore had properly been denied both asylum and residence permits on humanitarian grounds.

Its reasoning included the following:

“2.14  In addition, [the Deputy Minister] rightly denied [the applicant] a residence permit under his three-year policy. ... Referring to the decision of this court [case-law reference omitted] of 29 October 1998, the Regional Court finds that the crime in question cannot be considered relatively minor. In addition, the same crime has been committed repeatedly. ...

2.15  The Regional Court agrees with [the Deputy Minister] that [the applicant] should not be granted a residence permit on the ground of Article 8 of the Convention. In this connection, the Regional Court finds as follows. Although there is family life in the sense of Article 8 of the Convention, there is no interference since the [Deputy Minister's] decision does not have the effect of depriving [the applicant] of residence rights that enabled family life to be pursued. In considering whether Article 8 gives rise to a positive obligation the interests of the applicant in carrying on family life in this country and the [Deputy Minister's] interest in pursuing a restrictive immigration policy have to be weighed against each other. It does not appear to the Regional Court that there are objective impediments preventing [the applicant, her husband and their children] from carrying on their family life in Somalia, since it has been established that [the applicant's husband] is not a refugee in the sense of the 1951 Convention and he is not under threat in Somalia of treatment contrary to Article 3 of the Convention. The fact that the children of [the applicant and her husband] have grown up in the Netherlands and have become integrated in Netherlands society cannot be considered an objective impediment. The Regional Court is of the opinion that the [Deputy Minister's] public order policy should be given more weight than the [applicant's and her husband's] interest to pursue family life with their children in the Netherlands. In so finding the Regional Court takes into account the fact that [the applicant] was convicted of two crimes of violence.”

No appeal against this decision was possible.

3. Subsequent developments

By decision of 31 July 2003 the Head of the Immigration and Naturalisation Service, writing on behalf of the Minister for Aliens Affairs and Integration, notified the applicant's husband that he would be granted Netherlands nationality. According to an official report of the Deputy Minister of Justice (Tussentijds Bericht Nationaliteiten (Interim Message on Nationalities) 2002/1, Staatscourant (Official Gazette) 2002, no. 23 (1 February 2002), page 13), this entails the automatic loss of his Somali nationality.

By the same decision the Head of the Immigration and Naturalisation Service refused to grant the applicant's and her husband's children – by now five in number – Netherlands nationality by naturalisation on the ground that they did not have permanent residence. An objection has been lodged against this decision. The objection proceedings are still pending.

B.  Relevant domestic law and practice

At the time relevant to the present application, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). On 1 April 2001 a new Aliens Act entered into force but this has no bearing on the present case before the Court.

Article 11 of the Aliens Act 1965 provided that the Minister of Justice (Minister van Justitie) was to determine requests lodged by aliens for admission to and residence in the Netherlands. The Minister could refuse access and residence on general interest grounds (gronden aan het algemeen belang ontleend).

In view of the situation in the Netherlands as regards population size and employment, Government immigration policy – defined at the time in the 1994 Aliens Circular (Vreemdelingencirculaire 1994) – was aimed at restricting the number of aliens admitted to the Netherlands. In general, aliens were only granted admission for residence purposes if: (a) the Netherlands were obliged under international law to do so; (b) this would serve “essential interests of the Netherlands”, e.g. economic or cultural interests; (c) there were “compelling reasons of a humanitarian nature” (Chapter A4/5.3 of the Circular).

In order to ensure that the duration of asylum proceedings remained within reasonable limits, the Circular contained since 1992 the so-called “three-year policy” regime, according to which asylum seekers having remained for at least three years in a state of uncertainty about the final outcome of their asylum request were, in principle and subject to compliance with specifically defined conditions, eligible for a regular residence permit (Chapter A4/6.22 of the Circular). An asylum seeker who had been convicted of a (serious) crime in the meantime was considered to present a danger to public order and was not deemed to comply with the said conditions.

If it is established that the conditions set in national policy have not been met, a separate investigation is carried out to ascertain whether family life exists within the meaning of Article 8 of the Convention and, if so, whether this provision of international law imposes on the Netherlands an obligation, given the specific circumstances of the case, to permit residence in that country.

COMPLAINT

The applicant complained under Article 8 of the Convention of a disproportionate interference with her right to respect for her family life.  She argued that she committed the crimes in question – which in her view were of only minor importance, mere quarrels that had got out of hand – in 1994 and 1995 and committed no others since then. In the nearly eight years since the family entered the Netherlands, three more children were born; the entire family became integrated into Netherlands society and the children have no ties whatsoever with Somalia.

THE LAW

The applicant complained about the Netherlands authorities' refusal to grant her a residence permit, as a result of which she would be separated from her husband, a Netherlands national, and her five children, who could not be expected to follow her to Somalia. She invoked Article 8 of the Convention which, in so far as relevant, provides 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 ... 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 Government, whilst not contesting that family life within the meaning of Article 8 § 1 existed between the applicant, her husband and their children, argued that there had been no interference with the applicant's right to respect for family life, since the authorities' refusal to allow her to stay in the Netherlands did not amount to depriving her of a residence permit that had enabled her to enjoy family life with her family in the Netherlands.

The Government were further of the opinion that no special facts or circumstances had been shown to exist which placed their authorities under a positive obligation to grant the applicant a residence permit. In this context they attached relevance to the fact that the applicant was not eligible for a regular residence permit under the “three-year policy”: she had committed serious crimes of violence in the three years which followed on her asylum request. Moreover, the Government submitted that as a consequence of her misconduct, the applicant could not reasonably have expected to be granted a residence permit, even though she had been allowed to await the outcome of the asylum proceedings in the Netherlands. Finally, the Government stated that there was no objective impediment to family life being exercised outside the Netherlands, in Somalia.

In the circumstances, the interests of public order and immigration control had to outweigh the applicant's personal interest to be reunited with her family. The Government referred to the Court's decision in Solomon v. the Netherlands (5 September 2000, no. 44328/98).

The applicant submitted, in reply to the observations of the Government, that it could not reasonably be expected of her husband and, in particular, her children to follow her to Somalia and settle with her there. Her husband had lived in the Netherlands since 1994 and had acquired Netherlands nationality by naturalisation in 2003. Her children, born in 1991, 1993, 1994, 1997 and 1999 respectively, had no real links with Somalia, the three youngest children having been born in the Netherlands. She referred to the Court's considerations in Boultif v. Switzerland (no. 54273/00, § 53, ECHR 2001-IX), Sen v. the Netherlands (no. 31465/96, 21 December 2001), Amrollahi v. Denmark (no. 56811/00, 11 July 2002) and the considerations of the 's-Hertogenbosch Regional Court in its decision of 21 June 2002, reference number Awb 01/20307. Although these considerations also applied to the applicant's family, the Netherlands authorities had failed to show any willingness to take them into account in the present case.

The applicant contended in addition that the Government had attributed an absolute character to the applicant's misconduct, since they had not seen fit to take account of the circumstances, including the nature of the incidents, the fact that she had not reoffended and the current level of threat. The applicant argued that it followed from the Court's case law that developments which had occurred since the offence had been committed should have been taken into consideration (citing Boultif, loc.cit. and Amrollahi, loc.cit.).

Finally, the applicant argued that the fact that her husband had acquired Netherlands nationality by naturalisation formed an objective impediment to family life being continued in Somalia.

The Court considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of its merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Vincent Berger Boštjan M. Zupančıč 
 Registrar President

MOHAMMED YUUSUF v. THE NETHERLANDS DECISION


MOHAMMED YUUSUF v. THE NETHERLANDS DECISION