MOUNDELE YAMBA proti Nizozemsku

THIRD SECTION

DECISION

Application no. 26969/04
by Daisy-Lys MOUNDELE YAMBA
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 April 2006 as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr L. Caflisch,
Mr C. Bîrsan,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V. Berger , Section Registrar,

Having regard to the above application lodged on 15 July 2004,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Daisy-Lys Moundele Yamba, is a Congolese national who was born on 13 October 1983 and lives in Leiden. She is represented before the Court by Mr H.P.F. Feiner, a lawyer practising in Rotterdam. The respondent Government are represented by their Agent Mrs J. Schukking of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant, who was born in Zaire, as the country was then called, is the issue of a relationship between her mother, Ms N., and her step-brother. In order to keep the circumstances of the applicant’s birth secret, the applicant’s grandmother passed the applicant off as her own daughter. Throughout her childhood the applicant believed that Ms N. was in fact her elder sister not her mother.

Ms N. married a Mr L. in 1990. In 1994 they and their child, a daughter called M., travelled to the Netherlands; they were granted legal residence in 1994 and Netherlands nationality in 1999.

The applicant and her grandmother initially remained in Zaire. Later in 1994 they were forced to flee fighting that had broken out and ended up in the neighbouring Republic of Congo (“Congo-Brazzaville”). In 1997 fighting broke out in that country too; the applicant and her grandmother again tried to flee. The applicant’s grandmother was severely injured and unfit to travel and told the applicant to make her own way to safety. It was only at this point that she told the applicant that Ms N. was in fact her mother.

The applicant managed to make her way to France, where Ms N. collected her in September 1998. The applicant’s grandmother died in December 1998.

On 15 September 1998 the applicant lodged a request for a residence permit for the purpose of residing with her mother, Ms N., in the Netherlands. This request was refused on 22 February 2002, against which the applicant lodged an objection (bezwaar).

On 14 August 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) gave a decision dismissing the objection. It is found in the decision that since the applicant was brought up by her grandmother, family ties between the applicant and Ms N. had never existed in their country of origin; in any case, the applicant had by this time reached an age at which she could be expected to survive on her own in the Democratic Republic of Congo (as that country had been renamed).

The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of The Hague, which court gave its decision on 9 June 2004. It held that links amounting to family life between the applicant and Ms N. had been broken; any humanitarian reasons given by the applicant, such as the fact of her having resided with Ms N. for the last three years, having learnt the Dutch language and being educated in the Netherlands, were irrelevant, the decisive moment for such considerations being long past. The applicant was estopped from relying on Article 8 of the Convention on appeal, not having done so at the objection stage. The appeal was therefore dismissed.

On 28 October 2004 – subsequent to the lodging of the present application – the applicant was informed by the Minister for Immigration and Integration that the latter was prepared to use her discretionary power to grant a residence permit in view of the distressing circumstances in which the applicant found herself. The applicant made an application on this basis on 1 November 2004 and was granted a residence permit, valid from the aforementioned date until 18 June 2006, on 15 June 2005. The Court was not made aware of these developments until after notification of the application was given to the respondent Contracting Party on 28 November 2005 and the Government informed the Court on 19 January 2006 of the fact that the applicant had been granted a residence permit.

COMPLAINTS

The applicant complained under Article 8 of the Convention that the refusal of a residence permit allowing her to reside with her mother and the latter’s family in the Netherlands amounted to a failure by the Netherlands’ authorities to secure her right to respect for her “family life”. She complained under Article 14 of the Convention read in conjunction with Article 8 that the resulting denial of the right and the duty of Ms N. to care for her child, a right and a duty which Netherlands civil law recognises for mothers sharing Netherlands citizenship with their children, amounted to discrimination on the ground of nationality.

THE LAW

The applicant complained that the decision to refuse a residence permit for the purpose of residing with her mother contravened Article 8 of the Convention, which guarantees the right to respect for family life, and that she had been discriminated against on the grounds of nationality in breach of Article 14. However, the Court notes that the applicant has now been granted a residence permit. While this permit may not have been issued for the specific purpose of the applicant residing with her mother, it nevertheless allows her to do just that. In these circumstances, and having regard to Article 37 § 1 (b and c) of the Convention, the Court is of the opinion that the matter has been resolved and that it is no longer justified to continue the examination of application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights defined in the Convention and its Protocols which require the examination of the application to be continued.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Vincent Berger Boštjan M. Zupančič
Registrar President