CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 18056/91                       by Fatima AKABBOUZ                       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                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              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 22 August 1990 by Fatima AKABBOUZ against the Netherlands and registered on 9 April 1991 under file No. 18056/91;         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 13 May 1993 to communicate the       application;   -      the observations submitted by the respondent Government on 30       July 1993 and the observations in reply submitted by the       applicant on 28 September 1993;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Moroccan citizen born in 1959.   At the time of the introduction of the application, she was residing at Gouda in the Netherlands.   Before the Commission she is represented by Mrs. R.S. Nandoe, a lawyer practising at Alkmaar.         The facts of the case, as submitted by the parties, may be summarised as follows.         On 6 July 1981 the applicant was granted a residence permit for extended family reunification (verruimde gezinshereniging). The permit was prolonged several times, the last time until 6 July 1985.   During a summer holiday in 1984 with her family in Morocco, the applicant's grandmother became very ill.   Pursuant to Moroccan tradition, her father entrusted the applicant with the care of her grandmother.   The applicant stayed in Morocco until 15 June 1989 when her grandmother died.   According to the applicant, during this time she and her grandmother were financially supported by her father.   Being illiterate, she kept in touch with her family by means of taped messages.   Her family came each summer to Morocco.         After the death of her grandmother, the applicant returned to the Netherlands in September 1989 and, in March 1990,   applied for a prolongation of her residence permit.   On 6 March 1990 the Head of the local police of Gouda informed the applicant that this request could not be dealt with as the permit had expired on 5 July 1985, but that she could apply for a new residence permit.         On 28 March 1990 the applicant's request for a new residence permit was rejected by the Head of the local police of Gouda, who considered that the applicant's family life with her parents in the Netherlands had ceased to exist when she stayed in Morocco, that she had not taken any steps to have her initial residence permit prolonged and, as she had been living almost independently in Morocco for the last five years, that sending her back to Morocco would not constitute unreasonable hardship.   On 1 May 1990 the applicant filed a request for review (herziening) with the Deputy Minister of Justice who informed her on 14 May 1990 that her request was denied suspensive effect.   As the Deputy Minister of Justice did not determine this request within the statutory time-limit, the applicant appealed against this presumed refusal (fictieve weigering) to the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) on 24 August 1990.         To avoid expulsion pending the outcome of the proceedings, the applicant started injunction proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague.   On 15 August 1990, the President refused her request for an injunction on her expulsion considering that the applicant had failed to show that it had been her intention to keep her main residence in the Netherlands and that, even assuming there still was a family life within the meaning of Article 8 para. 1 of the Convention between her and her parents in the Netherlands, her expulsion to Morocco would be justified under para. 2 of this provision, as being necessary in the interest of the economic well-being of the country.   He further held that an expulsion would not entail any hardship for the applicant since she had always lived in Morocco with the exception of three years. Having regard to her age, she was considered to be able to freely choose her residence in Morocco and live there independently.   He also noted that she has an uncle and an aunt in Morocco.   Moreover, her father could continue to support her financially as he had done so far.         On 29 April 1992 the Court of Appeal (Gerechtshof) of The Hague upheld the decision of the President of the Regional Court and dismissed the applicant's appeal.         At the applicant's representative's request, the International Social Service carried out an investigation in Morocco in respect of an uncle of the applicant.   A report was drawn up in May 1992 from which it appears that this uncle lives in an isolated place and that in any event he refuses to receive the applicant.         By decision of 19 May 1992 the Judicial Division of the Council of State rejected the applicant's appeal against the presumed refusal to give her a residence permit. It noted that the applicant's residence permit had expired four years and eight months ago, so that the rules regulating the new entry of aliens to the Netherlands applied to her case. On the basis of these rules, the applicant did not qualify for a new residence permit. The Council of State found no indication that the applicant, after having spent five years without her parents in Morocco and given her age, would be unable to live there independently. As to the right to respect for family life within the meaning of Article 8 para. 1 of the Convention, the Council of State held that, at the time the applicant requested a residence permit, family life existed between the applicant and her parents. Nevertheless, since the decision complained of did not deprive the applicant of a residence title, the Judicial Division found no interference with the applicant's right to respect for her family life within the meaning of Article 8 para. 1 of the Convention. According to the Council of State there were no positive obligations incumbent on the Netherlands Government to grant a residence permit to the applicant, taking into account that the refusal did not prevent the continuation of the family life as it had existed between the applicant and her parents before she left Morocco.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 9 February 1991 and registered on 9 April 1991.         On 13 May 1993 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application under Article 8 of the Convention.         The Government's observations were submitted on 30 July 1993. By letter of 28 September 1993 the applicant's representative informed the Commission that the Government's observations did not call for a reply, since they did not contain any new information.   COMPLAINTS   1.     The applicant complains that her expulsion to Morocco would unjustly interfere with her family life.   She points out that she has always been financially dependent upon her father, that she maintained a regular contact with her family in the Netherlands and that she never had any contact with her uncle and aunt in Morocco nor with any other relative.   She invokes Article 8 of the Convention.   2.     The applicant also complains under Article 3 of the Convention that her expulsion to Morocco would amount to inhuman treatment.   She submits in particular that in Morocco a young unmarried woman who does not live with her parents or relatives is held in such contempt that she will be socially isolated.   3.     The applicant finally complains that she did not have the possibility to present her case to an independent and impartial tribunal and that in any event no effective remedy was available to her under Dutch law.   She relies in this respect on Articles 6 para. 1 and 13 of the Convention.   THE LAW   1.     The applicant complains under Article 8 para. 1 (Art. 8-1) of the Convention that her expulsion to Morocco would unjustly interfere with her family life.         Article 8 (Art. 8) of the Convention, insofar as relevant, reads:         "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 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            (...)."         The Government consider that the refusal of the Dutch authorities to grant the applicant a residence permit did not amount to an interference with her right to respect for her family life. Firstly, there is no "family life" within the meaning of Article 8 (Art. 8). The applicant had left the Netherlands entirely of her own accord and had lived quite independently in Morocco for five years. By choosing to live in the country of her birth for such a long time, the applicant severed the ties of family life. Secondly, should any "family life" be deemed to exist, the Netherlands authorities did not interfere with it. Four years and eight months after the residence permit of the applicant had expired, she notified the authorities that she wished to be reunited with her parents. The authorities were thus not withdrawing a residence permit which enabled the applicant to enjoy her alleged family life in the Netherlands. Thirdly, assuming that the refusal to grant a residence permit constituted an interference with the applicant's right to respect for family life, such interference is justified under Article 8 para. 2 (Art. 8-2) of the Convention, being necessary in the interest of the economic well-being of the country.         The Commission has repeatedly held that no right of an alien to enter or to reside in a particular country, nor a right not to be expelled from a particular country, is as such guaranteed by the Convention (see No. 12461/86, Dec. 10.12.86, D.R. 51, pp. 258, 264). However, in view of the right to respect for family life ensured by Article 8 (Art. 8) of the Convention, the exclusion of a person from a country in which his immediate family resides may raise an issue under this provision of the Convention (cf., for example, No. 7816/77, Dec. 19.5.77, D.R. 9 p. 219, No. 8245/78, Dec. 6.5.81, D.R. 24 p. 98 and No. 13654/88, Dec. 8.9.88, D.R. 57 pp. 287, 289).         The question whether or not there is family life is essentially a question of fact, depending upon the real existence in practice of close personal ties. Relationships between adults do not necessarily attract the protection of Article 8 (Art. 8) of the Convention without further elements of dependency, involving more than the normal emotional ties (cf. No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243).         However, the Commission does not need to resolve whether family life exists in the present case, as this complaint is in any event manifestly ill-founded for the following reasons.         Even assuming that the refusal to grant the applicant a residence permit constituted an interference with her right to respect for her family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention, the Commission notes that the decision to refuse the applicant a residence permit was taken on the basis of Dutch immigration policy, which lays down special conditions for the granting of residence permits for family reunification.         The Commission observes that the policy followed by the Dutch authorities in such cases is clearly related to the economic well-being of the country, in particular to the authorities' concern to regulate the labour market, and generally to restrict immigration into a densely populated country. The legitimate aim pursued is, thus, the preservation of the country's economic well-being within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention (cf. Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 15, para. 26).         In the present case, the Commission notes that the applicant, with the exception of three years, has always lived in Morocco. She was capable of taking care of her grandmother between the summer of 1984 and June 1989. She is at present 34 years old and has an uncle and an aunt in Morocco.         The Commission considers, despite the humanitarian aspect of the case, that in the present circumstances respect for the applicant's family life does not outweigh valid considerations relating to Dutch immigration policy (cf. No. 13654/88, Dec. 8.9.88, D.R. 57 p. 287).         The Commission therefore finds that the interference complained of is in accordance with the law and may reasonably be regarded as being necessary in a democratic society in the interests of the economic well-being of the country. It is thus justified under Article 8 para. 2 (Art. 8-2) of the Convention.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant further complains under Article 3 (Art. 3) of the Convention that her expulsion to Morocco would amount to inhuman treatment, given that in Morocco a young unmarried woman who does not live with her parents or relatives is held in such contempt that she will be socially isolated.         Article 3 (Art. 3) of the Convention provides:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Commission recalls that the decision by a Contracting State to expel an individual can, in certain circumstances, prove to be in breach of the Convention and particularly of Article 3 (Art. 3), when there are serious reasons to believe that he or she could be subjected to treatment prohibited by the said Article 3 (Art. 3) in the State to which he or she would be sent (see e.g. No. 6315/73, Dec. 30.9.74, D.R. 1 p. 73; No. 7011/75, Dec. 3.10.75, D.R. 4 p. 215; No. 12122/86, Dec. 16.10.86, D.R. 50 p. 268; Eur. Court H.R. Cruz Varas judgment of 20 March 1991, Series A no. 201, paras. 69-70). This may be so even if the danger does not emanate from public authorities for whom the receiving State is responsible (No. 12461/86, Dec. 10.12.86, D.R. 51 p. 258, No. 21350/93, Dec. 13.10.93, unpublished). The Commission finally recalls that to fall within the scope of Article 3 (Art. 3) of the Convention, ill-treatment must attain a minimum level of severity (cf. No. 10142/82, Dec. 8.7.85, D.R. 42 p. 86).         The Commission notes that in the domestic proceedings the applicant's allegations of a risk of treatment contrary to Article 3 (Art. 3) in Morocco have been dismissed as being unfounded.         After examination of the facts the Commission considers that the situation of which the applicant complains is not such as to raise an issue under Article 3 (Art. 3) of the Convention.         It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant finally complains that she did not have the possibility to present her case to an independent and impartial tribunal and that in any event no effective remedy was available to her under Dutch law.   She relies in this respect on Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention.         The Commission recalls its constant case-law according to which Article 6 para. 1 (Art. 6-1) of the Convention is not applicable to proceedings concerning residence permits for aliens.         This complaint, insofar as the applicant relies on Article 6 para. 1 (Art. 6-1) of the Convention, must consequently be rejected as being incompatible ratione materiae with the provisions of the Convention.         Assuming the applicant had an arguable claim under Article 13 (Art. 13) of the Convention, which provision guarantees to everyone whose rights and freedoms under the Convention are violated an effective remedy before a national authority, the Commission, recalling its findings under Article 3 and Article 8 (Art. 3, 8) of the Convention and noting that the applicant could and in fact did make use of the remedies available under Dutch law in order to challenge the refusal to grant her a residence permit and her expulsion from the Netherlands, finds the complaint under this provision to be manifestly ill-founded.         It follows that this complaint must be rejected under Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber           (K. ROGGE)                            (S. TRECHSEL)