ECHR Article 8-1
Respect for family life
Refusal to grant residence permit on ground of family life despite existence of exceptional circumstances: violation
Facts – The applicant, a Surinamese national, entered the Netherlands in 1997 on a tourist visa and continued to reside there after her visa expired. She married a Dutch national and they had three children. The applicant applied for a residence permit on several occasions, but her requests were dismissed as she did not hold a provisional residence visa issued by the Netherlands mission in her country of origin. In 2010 she spent four months in detention with a view to deportation. She was eventually released because she was pregnant.
Law – Article 8: The Court recalled its well-established case-law that, when family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious, the removal of the non-national family member would constitute a violation of Article 8 only in exceptional circumstances. The applicant’s situation in the respondent State had been irregular since she had outstayed her tourist visa. Having made numerous unsuccessful attempts to regularise her residence status in the Netherlands, she had been aware – well before she commenced her family life in that country – of the precariousness of her situation.
As to the existence of exceptional circumstances, all the members of the applicant’s family were Dutch nationals entitled to enjoy family life with each other in the Netherlands. Moreover, the applicant’s position was not comparable to that of other potential migrants in that she had been born a Dutch national but had lost that nationality involuntarily in 1975 when Suriname became independent. Her address had always been known to the domestic authorities, who had tolerated her presence in the country for 16 years. Such a lengthy period had actually enabled her to establish and develop strong family, social and cultural ties in the Netherlands. The Court further noted that the applicant did not have a criminal record and that settling in Suriname would entail hardship for her family. Nor had the domestic authorities paid enough attention to the impact on the applicant’s children of the decision to deny their mother a residence permit. They had also failed to take account of or assess evidence as to the practicality, feasibility and proportionality of denying her residence in the Netherlands. Viewing these factors cumulatively, the Court concluded that the circumstances of the applicant’s case were indeed exceptional. Accordingly, a fair balance had not been struck between the personal interests of the applicant and her family in maintaining their family life in the Netherlands and the public order interests of the Government in controlling migration.
Conclusion: violation (fourteen votes to three)
Article 41: EUR 1,714 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Butt v. Norway, 47017/09, 4 December 2012; Nunez v. Norway, 55597/09, 28 June 2011, Information Note 142)
12738/10 – Legal Summary, [2014] ECHR 1309
Bailii
European Convention on Human Rights 8Jeunn
Human Rights
Citing:
Judgment – Jeunesse v The Netherlands ECHR 3-Oct-2014
(Grand Chamber) Although the applicant had married and had three children while her immigration status in the Netherlands was precarious, there were exceptional circumstances such that a fair balance had not been struck between the competing . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Family
Updated: 23 December 2021; Ref: scu.538925