A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her father. It was eventually confirmed by the Dutch courts that it was in her best interests to remain with her father and his family in the Netherlands even if this meant that she would have to be separated from her mother. In practice, however, her care was shared between the mother and the paternal grandparents.
Held: There had been a violation on the facts of the case. ‘Article 8 does not entail a general obligation for a state to respect immigrants’ choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a state’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the person involved and the general interest [the reference is to Gul v Switzerland (1996) 22 EHRR 93, at [38]]. Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the contracting state, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (eg a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion [the reference is to Solomon v The Netherlands, App No 44328/98, 5 September 2000]. Another important consideration will also be whether 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 Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 [the reference is to Mitchell v United Kingdom, App No 40447/98, 24 November 1998; Ajayi v United Kingdom, App No 27663/95, 22 June 1999].’
Notwithstanding the mother’s ‘cavalier attitude to Dutch immigration rules’: ‘In view of the far reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter, and taking into account that it is clearly in Rachael’s best interests for the first applicant to stay in the Netherlands, the Court considers that in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants’ rights under article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachael’s birth.’
Judges:
J-P Costa P
Citations:
50435/99, [2006] ECHR 86, (2007) 44 EHRR 34, [2006] 1 FCR 229
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
Human Rights
Cited by:
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
See Also – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 3-Jun-2010
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Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – HH v Deputy Prosecutor of The Italian Republic, Genoa SC 20-Jun-2012
In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – MM (Lebanon) and Others, Regina (on The Applications of) v Secretary of State and Another SC 22-Feb-2017
Challenge to rules requiring certain minimum levels of income (Minimum Income Requirement – MIR) for allowing entry for non-EEA spouse.
Held: The challenges udder the Human Rights Act to the Rules themselves failed. Nor did any separate issue . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 18 July 2022; Ref: scu.239475
