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THIRD
SECTION
CASE OF
IBRAHIM MOHAMED v. THE NETHERLANDS
(Application
no. 1872/04)
JUDGMENT
(Striking
out)
STRASBOURG
10
March 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ibrahim Mohamed v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Ann
Power, judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1872/04) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Somali national, Mr
Abdullahi Ibrahim Mohamed (“the applicant”).
- The
applicant was represented by Ms J. van der Haar, a lawyer practising
in Nijmegen. The Dutch Government (“the Government”) were
represented by their Agent, Mr R.A.A. Böcker, of the Ministry of
Foreign Affairs.
- The
applicant alleged that the obligation to leave the Netherlands in
order to apply and wait for a provisional residence visa in Somalia
or a neighbouring country infringed his right to respect for his
family life.
-
By a decision of 12 May 2005, the Court declared the application
admissible.
- The
applicant, but not the Government, filed further written observations
(Rule 59 § 1). After consulting the parties, the Chamber decided
that no hearing on the merits was required (Rule 59 § 3 in
fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
- The applicant was born in 1970 and lives in Nijmegen.
- He
came to the Netherlands on 16 August 1998 and applied for asylum.
Although his request was rejected, he was granted a provisional
residence permit (voorwaardelijke vergunning tot verblijf). On
8 January 2001 his request for renewal of this permit was denied. The
applicant's objection against this refusal was dismissed, as was his
subsequent appeal. The final decision in these proceedings was taken
on 11 July 2002 by the Regional Court (rechtbank) of The
Hague.
- Meanwhile,
in 1998, the applicant had started a relationship with a Ms A.A.,
a settled immigrant of Somali origin. The couple had two children,
born on 11 November 1999 and 27 February 2002 respectively. The
applicant and Ms A.A. were married on 4 November 2002.
- On
21 August 2002 the applicant requested a residence permit for the
purpose of residing in the Netherlands with his (future) spouse. This
request was denied by the Minister for Immigration and Integration
(Minister voor Vreemdelingenzaken en Integratie) on 28
November 2002 for the reason that the applicant did not hold the
required provisional residence visa (machtiging tot voorlopig
verblijf), which had to be applied for at a representation of the
Netherlands in the country of origin or, if there was no such
representation in the country of origin, at the representation
situated closest to that country.
- The
applicant filed an objection (bezwaar) against this decision,
arguing that he ought to be exempted from the visa requirement as he
was unable to return to Somalia or, given that there were no
representations of the Netherlands in that country, to one of
Somalia's neighbouring countries. In addition, his wife was disabled
and required his assistance in the care for their two children.
- In
order to be able to await the outcome of the objection proceedings in
the Netherlands, the applicant also applied for a provisional measure
(voorlopige voorziening). By a decision of 5 November 2003,
the provisional-measures judge (voorzieningenrechter) of the
Regional Court of The Hague, sitting in Arnhem, rejected the request
for a provisional measure and, at the same time, dismissed the
applicant's objection. The judge reiterated that the ratio of the
visa requirement lay in preventing the national authorities, prior to
a decision on a person's request for admission having been taken,
from being confronted with a fait accompli as a result of that
person's illegal presence in the Netherlands. If an alien, who had
entered the Netherlands without a visa but with the intention of
settling there, could be exempted from the visa requirement simply by
asserting that it was impossible to return, this would have serious
negative repercussions on the policy. Finally, the Regional Court
considered that the refusal to exempt the applicant from the
obligation of first applying for a visa did not constitute an
interference with his right to respect for family life because this
refusal did not deprive him of a residence permit on the basis of
which he had been able to have family life in the Netherlands.
Neither were the authorities under a positive obligation to exempt
the applicant from the visa requirement, as it could reasonably be
expected that he apply for a visa in his country of origin and await
the outcome of that application there. The applicant had not
substantiated his claim that such would not be possible for him, but
had merely argued that he had to assist his disabled partner in the
care for their children, which, in the view of the Regional Court,
was insufficient. It had not appeared that there were any objective
impediments to family life being developed in the country of origin.
Finally, the Regional Court added that the impugned decision did not
constitute a definite refusal of family life being exercised in the
Netherlands.
No
further appeal lay against this decision.
B. Developments after the application was declared
admissible
- On
4 November 2005 the respondent Government informed the Court that the
applicant had been granted a residence permit for the purpose of
asylum pursuant to a temporary “policy of protection for
certain categories” (categoriaal beschermingsbeleid, see
paragraph 13 below) adopted by the Minister on 24 June 2005 in
respect of asylum seekers coming from certain parts of Somalia.
II. RELEVANT DOMESTIC LAW
- A
temporary residence permit for the purpose of asylum may be issued to
persons whose return to their country of origin is considered by the
responsible (Deputy) Minister to constitute exceptional harshness in
view of the general situation pertaining in that country (article
29(1)(d) of the Aliens Act 2000 (Vreemdelingenwet 2000)).
Pursuant to this provision, the (Deputy) Minister may pursue a policy
of protection for a particular category of asylum seekers. The
criterion of exceptional harshness, laid down in this provision, is
not a formal one, such as the declaration of a state of siege, a
state of war or the existence of some form of armed conflict, but a
material one. It relates to whether the risks that could arise on a
person's return, in connection, inter alia, with armed
conflict or the like would be unreasonable from a humanitarian
perspective or from the perspective of the law of armed conflict. In
general, protection for certain categories is justified only if armed
conflict (including armed civil conflict) has disrupted daily life to
such an extent that such humanitarian risks arise.
- A
person who has held a temporary permit pursuant to article 29(1)(d)
of the Aliens Act 2000 for a period of five years may be eligible for
an indefinite residence permit for the purpose of asylum
(article 34(4) of the Aliens Act 2000).
- The
requirement to hold a provisional residence visa when an application
is made for a residence permit for non-asylum related purposes (for
the purpose of exercising family life, for example) does not apply
when the person concerned held a temporary or indefinite residence
permit for the purpose of asylum immediately prior to the lodging of
that application (article 17(1)(e) of the Aliens Act 2000).
THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant claimed to be the victim of a violation of Article 8 of the
Convention, the relevant parts of which provide:
“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 national security, public safety or 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
Court notes that the applicant has been granted a residence permit
(see paragraph 12 above) and the question therefore arises whether
there is an objective justification for continuing to examine this
complaint or whether it is appropriate to apply Article 37 § 1
of the Convention, which provides as follows:
“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.”
- In
a letter of 25 November 2005, the applicant requested the Court to
continue its examination of the present application, notwithstanding
the fact that he was now residing lawfully in the Netherlands. In the
opinion of the applicant, the residence permit he had been granted
provided insufficient protection of his right to respect for family
life, given that it could be withdrawn whenever the Minister decided
that the situation in Somalia no longer justified pursuing a
protection policy.
- As
it is thus clear that the applicant wishes to pursue his application,
the Court must, in order to ascertain whether Article 37 § 1 (b)
applies to the present case, answer two questions in turn: first,
whether the circumstances complained of directly by the applicant
still obtain and, second, whether the effects of a possible violation
of the Convention on account of those circumstances have also been
redressed (see Sisojeva and Others v. Latvia (striking
out) [GC], no. 60654/00, § 97, 15 January 2007, and El
Majjaoui and Stichting Touba Moskee v. the Netherlands (striking
out) [GC], no. 25525/03, § 30, 20 December 2007). In the
present case, that entails first of all establishing whether the
applicant is still required to apply for a provisional residence visa
in Somalia or a neighbouring country before he may be eligible for a
residence permit allowing him to reside with his wife and children in
the Netherlands; after that, the Court must consider whether the
measures taken by the authorities constitute sufficient redress for
the applicant's complaint.
- As
to the first question, it is clear that the applicant is currently
lawfully residing in the Netherlands and that there is no question of
his having to apply for a provisional residence visa.
- As
regards the second question, the Court reaffirms that Article 8
cannot be construed as guaranteeing, as such, the right to a
particular type of residence permit. Where the domestic legislation
provides for several different types, the Court must analyse the
legal and practical implications of issuing a particular permit. If
it allows the holder to reside within the territory of the host
country and to exercise freely there the right to respect for his or
her private and family life, the granting of such a permit represents
in principle a sufficient measure to meet the requirements of that
provision. In such cases, the Court is not empowered to rule on
whether the individual concerned should be granted one particular
legal status rather than another, that choice being a matter for the
domestic authorities alone (see Sisojeva and Others, cited
above, § 91).
- In
this context the Court notes that although the residence permit
granted to the applicant may not have been issued for the specific
purpose of allowing him to reside in the Netherlands with his wife
and children, it nevertheless enables the applicant to enjoy family
life in the Netherlands. Moreover, while the policy pursuant to which
the applicant was granted a residence permit may, at some point in
the future, be amended or revoked, it is far from certain that the
applicant will then once again be required to apply for a provisional
residence visa abroad (see paragraphs 14-15 above) or that, in the
circumstances pertaining at that time, such a requirement would be
capable of raising an issue under Article 8 of the Convention.
- Having
regard to the fact, therefore, that the applicant has been granted a
residence permit in the Netherlands, enabling him to exercise freely
in that country his right to respect for his family life as protected
by Article 8 of the Convention and interpreted in the Court's
established case-law (see, mutatis mutandis, Boughanemi v.
France, judgment of 24 April 1996, Reports 1996-II, pp.
607-08, § 35; C. v. Belgium, judgment of 7 August
1996, Reports 1996-III, pp. 922-23, § 25; Boujlifa v.
France, judgment of 21 October 1997, Reports 1997-VI, p.
2263, § 36; and Buscemi v. Italy, no. 29569/95, §
53, ECHR 1999-VI), the Court considers that his complaint has been
adequately and sufficiently remedied (see Sisojeva and Others,
cited above, § 102).
- Consequently,
the Court finds that both conditions for the application of Article
37 § 1 (b) of the Convention are met. The matter giving rise to
the applicant's complaint can therefore now be considered to be
“resolved” within the meaning of Article 37 § 1 (b).
Finally, no particular reason relating to respect for human rights as
defined in the Convention requires the Court to continue its
examination of the application under Article 37 § 1 in fine.
- Accordingly,
the application should be struck out of the Court's list of cases.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that the matter giving rise to the applicant's complaint
has been resolved and decides to strike the application out of
its list of cases.
Done in English, and notified in writing on 10 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
