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THIRD
SECTION
CASE OF
SAID BOTAN v. THE NETHERLANDS
(Application
no. 1869/04)
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 Said Botan 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. 1869/04) 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, Mrs
Sahra Said Botan (“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 her right to respect for her
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 1969 and lives in Nijmegen.
- The
applicant came to the Netherlands on 2 January 1995 and applied for
asylum. Her request was rejected, the final decision in this respect
being taken by the Regional Court (arrondissementsrechtbank)
of The Hague on 17 April 1997.
- Meanwhile,
in 1996, the applicant had started a relationship with a Mr F.A.,
also of Somali origin. In 1998 Mr F.A. obtained Netherlands
nationality. The applicant and Mr F.A. were married on 30 January
2001. They had three children, born on 2 November 2000, 17 April 2002
and 5 October 2004 respectively, who have Netherlands
nationality.
- On
15 May 2001 the applicant requested a residence permit for the
purpose of staying with her spouse, who was in full-time gainful
employment. This request was denied by the Deputy Minister of Justice
(Staatssecretaris van Justitie) on 15 October 2001 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 she ought to be exempted from the visa requirement as
she 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. Not only would this contravene the
rights of her Dutch children in the Netherlands, it was also
realistically impossible for her to travel: as there was no
functioning Somali Government, she could not obtain a travel
document.
- After
the Deputy Minister rejected her objection on 27 February 2002, the
applicant appealed to the Regional Court of The Hague, sitting in
Arnhem, which court upheld the appeal on 24 April 2003.
- The
Minister for Immigration and Integration (Minister voor
Vreemdelingenzaken en Integratie; the successor to the Deputy
Minister of Justice) lodged an appeal against the Regional Court's
decision. In a decision of 18 July 2003, the Administrative
Jurisdiction Division of the Council of State (Afdeling
Bestuursrechtspraak van de Raad van State; herein after “the
Division) found in favour of the Minister. The Division 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. Noting
that family life had been started at a time when the applicant was
not residing lawfully in the country, the Division further found that
insisting on the visa requirement did not violate Article 8 of the
Convention. It added that the impugned decision did not constitute a
definite refusal of family life being exercised in the Netherlands,
but merely an enforcement of legal requirements. Finally, it had not
appeared that there were any objective impediments to family life
being developed abroad. For these reasons, the Division quashed the
decision of the Regional Court and rejected the appeal which the
applicant had lodged with that latter court.
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 14 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 13 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 she was now residing lawfully in the Netherlands. In
the opinion of the applicant, the residence permit she had been
granted provided insufficient protection of her 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 her 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 either Somalia or a neighbouring country before she may be
eligible for a residence permit allowing her to reside with her
husband 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
her 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 her to reside in the Netherlands with her husband
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 15-16 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 her to exercise freely
in that country her right to respect for her 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 her 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
