Application no. 50665/99
by Percy R.M. NELSON, Jaciënca P.M. NELSON, Sharity R.M. NELSON, Cillencio S.M. KAPEL and Chanequa R.M. KAPEL
against the Netherlands
The European Court of Human Rights (First Section), sitting on 30 March 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs E. Steiner,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr E. Myjer, judges
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 15 April 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant, Mr Percy R.M. Nelson, is a Surinamese national, who was born in 1967 and lives in Amsterdam. The second to fifth applicants, Jaciënca P.M. Nelson, Sharity R.M. Nelson and the twins Cillencio S.M. Kapel and Chanequa R.M. Kapel, are the first applicant’s children, who are Netherlands nationals, born in 1993, 1995 and 1999 respectively and living in Amsterdam. The children are represented by their mother, Ms Justine J. Kapel, who exercises parental authority (ouderlijk gezag) over them. The applicants are represented before the Court by Ms E.C. Gelok, a lawyer practising in Amsterdam. The respondent Government are represented by their Agents, Ms J. Schukking and Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant entered the Netherlands on 3 December 1989. In December 1992 he met Ms Kapel, a Netherlands national originally from Surinam, and started a relationship with her. They briefly cohabited in 1993 but have since lived apart, even though they continue to maintain their relationship. The first applicant is closely involved in the upbringing of, and care for, the four children born from the relationship. The first applicant’s requests for a residence permit in the Netherlands were rejected.
On 31 January 2005 the Government informed the Court that the first applicant would, upon his request, be granted a residence permit. In reply, the applicants’ representative stated that the application would be withdrawn as soon as a residence permit had been issued.
On 14 December 2005 the Government informed the Court that it had not yet been possible to issue a residence permit to the first applicant because, in spite of a number of reminders having been sent to him by the immigration authorities, he had still not complied with the procedural formality of submitting a copy of his passport. The Government’s letter was transmitted to the applicants’ representative who replied saying that she had not succeeded in contacting the first applicant and that in these circumstances she felt unable to continue representing him.
On 24 January 2006 the Court sent a letter by registered mail to the first applicant at the address which his former representative had indicated as being his last known address, asking him to inform the Court before 21 February 2006 why he had still not complied with formal requirements for being granted a residence permit. This letter was returned to the Court by the Dutch postal authorities: it had not been collected.
The applicants complained under Article 8 of the Convention that the refusal to allow the first applicant to reside in the Netherlands constituted an unjustified interference with the right to respect for their family life.
The Court has examined the present application under Article 37 of the Convention which reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
In the present case the Court recalls that the first applicant may receive a residence permit and that the competent authorities have in vain invited him on several occasions to pursue this. Furthermore, the Court notes that no communications have been received from the applicants in reply to the Court’s request for clarification on this point. In these circumstances the Court considers that it is no longer justified to continue the examination of the application in accordance with Article 37 § 1 (c) of the Convention.
Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Søren Nielsen Christos Rozakis
NELSON and KAPEL v. THE NETHERLANDS DECISION
NELSON and KAPEL v. THE NETHERLANDS DECISION