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FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 59186/00
by Tarek ISMAIL EBRAHIM and Wafaa SERHAN EBRAHIM
against the Netherlands
The European Court of Human Rights (First Section), sitting on 12 April 2001 as a Chamber composed of
Mr L. Ferrari Bravo, President,
Mrs W. Thomassen,
Mr Gaukur Jörundsson,
Mr R. Türmen,
Mr C. Bîrsan,
Mr J. Casadevall,
Mr R. Maruste, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application introduced on 5 June 2000 and registered on 24 July 2000,
Having deliberated, decides as follows:
THE FACTS
The first applicant is a stateless person of Palestinian origin. He was born the Lebanon in 1981 and is currently detained in Senegal. The second applicant is his mother. She is a Dutch national of Palestinian origin, born in the Lebanon in 1961, and living in Alkmaar (the Netherlands). They are represented before the Court by Mr A. van Driel, a lawyer practising in Alkmaar.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
After the death of the first applicant’s father, who was active for the Palestine Liberation Organisation (“PLO”) in the Lebanon, the second applicant married A.E. Ebrahim, the brother of her husband. Between June 1982 and November 1983, the latter was detained by the Israeli authorities on grounds of his activities for the PLO. After his release, he was accused by the PLO of espionage for Israel. In 1986, A.E. Ebrahim and his family, consisting of the two applicants and a baby born in the meantime left the Lebanon for Germany, where they applied for asylum.
After having stayed in Germany and subsequently Denmark, the family moved to the Netherlands where, on 24 May 1991, they applied for asylum or, alternatively, a residence permit on humanitarian grounds. In the meantime, three further children had been born to the second applicant and her husband.
During their stay in the Netherlands serious tensions arose between the first applicant and his stepfather. In the latter’s opinion, the first applicant misbehaved by, inter alia, playing truant and having undesirable friends. He felt that he had no longer any authority over the first applicant. After the first applicant had broken into his school where he committed acts of vandalism, his stepfather decided to send him temporarily back to the Lebanon. The second applicant thought that the first applicant would only go to the Lebanon for a short period in order to become acquainted with his native country and culture. On 25 October 1994, the first applicant travelled to the Lebanon, where he moved in with his maternal grandmother in a refugee camp in South-Lebanon. The first applicant’s school and the Netherlands immigration authorities were informed of this fact.
Pending the appeal proceedings taken against the initial refusal to grant A.E. Ebrahim and his family asylum or a residence permit on humanitarian grounds, A.E. Ebrahim and his family - including the first applicant - did obtain a residence permit on 17 July 1995, on the basis of a policy allowing asylum seekers to remain in the Netherlands where asylum proceedings had lasted more than three years. They subsequently withdrew their appeal against the refusal to grant them asylum or a residence permit on humanitarian grounds. On 16 November 1996, all members of the family residing in the Netherlands were granted Dutch citizenship.
Wishing to return to the Netherlands, the first applicant applied on 23 October 1997 for a Dutch provisional residence visa (machtiging tot voorlopig verblijf) on grounds of family reunification with the Netherlands authorities in the Lebanon. This was necessary as, according to Article 14 § 2 of the Aliens Act (Vreemdelingenwet), a residence permit becomes void where the holder takes up permanent residence abroad.
On 23 July 1998, as his visa application remained undetermined, the first applicant filed an objection (bezwaar) with the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) against the implied refusal (fictieve weigering) to grant him a provisional residence visa.
On the same day, the first applicant further requested the President of the Hague Regional Court (Arrondissementsrechtbank) to issue an interim measure (voorlopige voorziening) ordering the Minister of Foreign Affairs to issue a provisional residence visa or a laisser passer allowing him to travel to the Netherlands together with his mother, who at that time was visiting him in the Lebanon.
On 14 August 1998 the Hague Regional Court set a deadline of 10 September 1998 for the Visa Department (Visadienst) of the Ministry of Foreign Affairs to determine the first applicant’s request for a visa.
On 2 September 1998, the second applicant was heard by a commission of the Immigration and Naturalisation Department (Immigratie en Naturalisatiedienst) on the grounds for the first applicant’s request to enter the Netherlands. In an undated decision taken on or around 10 September 1997, the Minister of Foreign Affairs rejected the first applicant’s objection of 23 July 1998.
On 17 September 1998, the first applicant filed an appeal against this decision with the Hague Regional Court. He further requested the President of the Hague Regional Court to issue an interim measure allowing him to travel to the Netherlands.
On 6 November 1998, the President of the Hague Regional Court rejected the request for an interim measure. The President did not find it established that the first applicant’s situation was of such gravity that he should be allowed to enter the Netherlands as a matter of urgency.
On 19 May 1999, following a hearing held on 18 February 1999, the Hague Regional Court declared the first applicant’s appeal of 17 September 1998 partly founded. Although the Regional Court agreed with the Minister of Foreign Affairs that, under the Netherlands immigration rules, the first applicant did not qualify for a residence permit on grounds of family reunification, it held, as to the first applicant’s complaint under Article 8 of the Convention, that the preparation of the decision taken by the Minister of Foreign Affairs had been negligent and that this decision lacked sufficient reasoning. It was found that the Minister had failed to examine the question of the Netherlands positive obligations under Article 8 of the Convention in a satisfactory manner in that a number of important elements had not or not sufficient been taken into account. Consequently, it quashed the challenged decision and ordered the Minister of Foreign Affairs to take a fresh decision.
As no fresh decision was taken within the prescribed statutory delay of six weeks, the first applicant filed an appeal on 5 July 1999 with the Hague Regional Court against a decision to be considered on a par with a decision not timely taken and requested an accelerated examination (versnelde behandeling).
In the course of the hearing held on 29 July 1999, the first applicant further requested the President of the Hague Regional Court to issue an interim measure allowing him to travel to the Netherlands. In its decision of 6 August 1999, the Hague Regional Court ordered the Minister of Foreign Affairs to determine the first applicant’s objection of 23 July 1998 with a period of ten weeks. It rejected any further claims made by the first applicant.
On 29 October 1999, the first applicant again appealed to the Hague Regional Court as no fresh decision had been taken within the set time-limit and requested an accelerated examination.
In its decision of 30 November 1999, the Hague Regional Court noted that no fresh decision had been taken by the Minister of Foreign Affairs. It further noted that, on 24 November 1999, the second applicant had been heard by a Commission of the Immigration and Naturalisation Department but that it had not appeared that this hearing had resulted in a determination of the first applicant’s objection. In the absence of a new decision on the merits of the objection, the Regional Court could only find that the Minister of Foreign Affairs had again failed to determine the objection timely. Consequently, it declared the first applicant’s appeal founded and ordered the Minister to determine the first applicant’s objection within two weeks.
On 14 December 1999 the Minister of Foreign Affairs rejected the first applicant’s objection of 23 July 1998. The Minister recalled that, in its decision of 19 May 1999, the Hague Regional Court had accepted that the first applicant did not qualify for a residence permit on grounds of family reunification under the relevant domestic immigration rules. Insofar as the first applicant submitted that he was subject to pressure from the side of the PLO and or El Fatah during his stay in the Lebanon, the Minister held:
“It has been submitted that <the first applicant> has encountered problems from the side of the PLO. This argument is substantiated by two summons of El Fatah of 25 January 1997 and 12 April 1998. By letter of 8 July 1999, I have requested the Ministry ... to verify these documents. By letter of 6 September 1999, the Ministry ... informs that these summonses have not been drafted in the usual manner. ... <The first applicant> has been confronted with this information and has indicated that the summons are authentic or that they are considered as such by him. I cannot share the contention that these summonses are indeed authentic because El Fatah can also draft documents in an unusual manner. It has further been stated at the hearing of 24 November 1999 that the first applicant has never received further summonses after these. This is rather surprising if <the first applicant> would indeed been searched for by El Fatah.
It has further appeared during the hearing that the <first applicant> lives in the camp in a house with his grandmother and an aunt. This aunt is married to an El Fatah fighter who also makes a big contribution to the subsistence costs of the <first applicant’s> grandmother. Having regard to this, it is not plausible that the <first applicant> is in fact wanted by El Fatah and that he is forced to go into in hiding constantly.
During the hearing ... of 24 November 1999 it has also appeared that, unlike the allegation made, the <first applicant> does not constantly change his place of residence but that he has first stayed a year in a village with his maternal grandparents and left from there on grounds of problems with the family, after which he moved in with his paternal grandparents with whom he is staying to date.
In addition it should be noted ... that it must be found unlikely that the <first applicant> would face problems on account of his stepfather who left the Lebanon already in 1986. In this it is noted that the father’s sister apparently does not encounter any problems nor does the mother of the stepfather.
Having regard to the above, it has now appeared that the <first applicant> can be considered as able to maintain himself in the Rachidie camp. Taking into consideration that his grandmother resides there and in any event an aunt and an uncle, the <first applicant> is not deprived of social contacts. There is therefore no reason to grant him residency on grounds of compelling reasons of a humanitarian nature.”
Insofar as the applicant relied on Article 8 of the Convention, the Minister accepted that there was family life between the first applicant and his family living in the Netherlands, but did not find that there were facts or circumstances on grounds of which it should be held that the Netherlands were under a positive obligation under this provision to grant the first applicant a residence permit. On this point the Minister held that the fact that the first applicant’s family had lived in the Netherlands since 1991 and held the Netherlands nationality did not in itself give rise to such a positive obligation. Further noting that it had appeared that the choice to send the first applicant back to the Lebanon for a period of one year had been a conscious one, the Minister considered that the applicants should have realised that this choice entailed a risk that the first applicant would not be readmitted to the Netherlands. Having noted, inter alia, that the second applicant had visited the Lebanon several times in order to visit the first applicant, the Minister further did not find it established that there were any objective obstacles for the exercise of the applicants’ family life in the Lebanon. As to the fact that the first applicant’s siblings had the Netherlands nationality and were attending school in the Netherlands, the Minister held that this was a subjective rather than an objective obstacle for the exercise of family life elsewhere. Finally noting that the first applicant had attained the age of eighteen in the meantime and that, as from a young age, he had decided for himself including to end his schooling and to relocate in the Lebanon, the Minister held that the first applicant could be regarded as being capable, to a great extent, to maintain himself independently and concluded that the general interests of the Netherlands in pursuing a restrictive immigration policy outweighed the applicants’ interests.
The first applicant filed an appeal with the Hague Regional Court, before which a hearing was held on 17 March 2000.
In its decision of 7 April 2000, the Hague Regional Court rejected the appeal. It accepted the finding of the Minister that it had not been established that, on the basis of his personal circumstances, the applicant could not be expected to remain in the Lebanon and should be admitted to the Netherlands on humanitarian grounds. It did not find it established that the first applicant was in fact wanted by El Fatah and for that reason was continuously forced to go into hiding. Noting that the first applicant was housed and financially supported by his uncle, that further members of his family are living in the Lebanon and that the second applicant could continue to provide him with support, the Regional Court concluded that the finding of the Minister could not be regarded as unjust.
As to the argument raised under Article 8 of the Convention, the Regional Court concluded that, in the light of its findings as to the first applicant’s personal situation, the interests of the Netherlands Government in pursuing a restrictive immigration policy outweighed the applicants’ interests in exercising their family life in the Netherlands. The Regional Court did not find it established that there were any objective obstacles preventing the applicants from enjoying their family life in the Lebanon in that no facts or circumstances had been established that would form an obstacle to the return of the first applicant’s family to the Lebanon. It noted on this point that the asylum request of the first applicant’s stepfather had been rejected and that he had obtained a residence permit on grounds of a special policy allowing asylum seekers to remain where asylum proceedings had lasted longer than three years. The Regional Court further rejected the argument that the fact that the first applicant’s siblings had integrated into Dutch society should be regarded as constituting an objective obstacle.
On 6 January 2001, the first applicant travelled on a false passport via Senegal to Belgium intending to continue to the Netherlands. He was arrested in Belgium and placed in aliens’ detention.
He subsequently applied for asylum in Belgium. On 9 January 2001, via his lawyer in the Netherlands, the first applicant requested the Netherlands authorities to take over his asylum request from Belgium. After the Belgian authorities had rejected the first applicant’s request for asylum, he was expelled to Senegal on 16 February 2001.
Upon his arrival in Senegal, the first applicant was taken into detention as he held no documents allowing him to stay in Senegal. The Senegalese authorities provided him with the possibility to call the second applicant. On 19 February 2001, the first applicant - via his lawyer in the Netherlands - informed the Netherlands authorities of his situation and requesting them to intervene and to allow him to travel to the Netherlands.
COMPLAINTS
The applicants complain that the decision by the Netherlands authorities not to allow the first applicant to re-enter the Netherlands is contrary to Article 3 of the Convention in that this decision obliges him to remain in a country where he tries to survive under dangerous circumstances. The applicants submit that the PLO wants to recruit the first applicant and intimidates him to this effect. As both his father and stepfather have fought for the PLO, the same is now being expected from him and to refuse to do so would render him suspect. The applicants further refer to the general situation in Palestinian refugee camps in the Lebanon.
The applicants complain under Article 6 of the Convention that the first applicant’s request for a provisional residence visa has not been dealt with in an adequate manner and that the proceedings on this request have been very lengthy.
The applicants finally complain that the refusal by the Netherlands authorities to allow the first applicant to be reunited with his family in the Netherlands is in violation of their right to respect for their family life within the meaning of Article 8 of the Convention.
THE LAW
1. The applicants complain that the decision by the Netherlands authorities not to allow the first applicant to re-enter the Netherlands is contrary to Article 3 of the Convention in that this decision obliges him to remain in a country where he tries to survive under dangerous circumstances.
Article 3 of the Convention reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court notes at the outset that it does not appear that, in the domestic proceedings, the applicants have argued that to deny the first applicant re‑entry to the Netherlands would expose him to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention. It has, in particular, not been argued that the pressure to which he was allegedly subjected from the side of the PLO or his general living conditions in the Lebanon should be regarded as amounting to treatment contrary to Article 3 of the Convention.
The Court considers that the mere fact that all remedies have been tried does not in itself constitute compliance with the requirement of Article 35 § 1 of the Convention that the domestic remedies must have been exhausted. It is also required that applicants must have raised before the national authorities, at least in substance, the complaints they wish to bring before the Court (cf. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, § 66).
However, the Court does not find it necessary to determine the question whether the applicants have exhausted domestic remedies on this point as this complaint is in any event manifestly ill-founded for the following reasons.
The Court notes that it has not been found established in the domestic proceedings that the first applicant was in fact subjected by pressure from the side of the PLO in that this allegation was contradicted by facts having become apparent in the course of the proceedings and which have not been disputed by the applicants. In these circumstances, the Court finds no indication that the first applicant is in fact being intimidated or searched by the PLO.
As to the general living conditions of the first applicant in the Lebanon, the Court is of the opinion that the applicants’ submissions on this point do not disclose that these conditions are such that they should be regarded as amounting to treatment incompatible with Article 3 of the Convention.
It follows that this complaint must be rejected for being manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention
2. The applicants complain under Article 6 of the Convention that the first applicant’s request for a provisional residence visa has not been dealt with in an adequate manner and that the proceedings on this request have been very lengthy.
The Court recalls that proceedings on and decisions taken as regards the entry, stay and deportation of aliens fall outside the scope of Article 6 of the Convention in that such proceedings do not concern a determination of civil rights or obligations or of a criminal charge within the meaning of this provision (cf. Maaouia v. France [GC], no. 39652/98, § 40, to be published in ECHR 2000-X).
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.
3. The applicants finally complain that the refusal by the Netherlands authorities to allow the first applicant to be reunited with his family in the Netherlands is in violation of their right to respect for their family life within the meaning of Article 8 of the Convention.
Article 8 of the Convention provides, insofar as relevant:
“Everyone has the right to respect for his ... family life ...”
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of the complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaint concerning the alleged breach of Article 8 of the Convention;
Declares inadmissible the remainder of the application.
Michael O’Boyle Luigi Ferrari Bravo
Registrar President