Konstatinov v Netherlands
| Judge | JUDGE ZUPANCIC (PRESIDENT),JUDGES BIRSAN,FURA-SANDSTROM,MYJER,THOR BJORGVINSSON,ZIEMELE AND BERRO-LEFEVRE,MR S QUESADA (SECTION REGISTRAR) |
| Judgment Date | 26 April 2007 |
Human rights – Private and family life – Residence – Applicant seeking residence in respondent state territory – Applicant’s partner and child resident in respondent state territory – Respondent state refusing residence on financial and public order grounds – Whether refusal violating applicant’s right to private and family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant, who was of Roma origin, was born in Serbia. She was known to the national authorities of the respondent state by several aliases. In 1986, the applicant contracted a traditional Roma marriage with G, who had been residing in the respondent state following the grant of a residence permit in 1977. In February 1987, the applicant was expelled for reasons unknown. On 25 October 1988, G was granted a permanent residence permit, and, the following day, the applicant applied for a residence permit for the purposes of stopping with her partner. In April 1989, they had a son, L. That request was rejected by the Deputy Minister of Justice (the minister) on the basis that, inter alia, G failed to meet the minimum income requirement under the applicable immigration rules. Subsequently, she left the respondent state. She returned during 1991, and, on 10 September, she officially married G in accordance with domestic law. On 1 November, she submitted a request for residence. However, that request was not considered for seven years. Between September 1992 and 23 March 1998, the applicant was convicted of theft and/or robbery on six occasions, and sentenced to several periods of imprisonment. On 27 November 1998, the minister rejected the applicant’s residency application, on the grounds, inter alia, that G did not meet the minimum income requirement and the fact of the applicant’s convictions. Her attempt to activate a three year time limit rule in relation to the determination of her application was dismissed on the ground of her ineligibility on account of her convictions. The applicant was declared an undesirable alien, and a five year exclusion order was imposed. On 29 May 2001, the applicant’s objection against that decision was heard. She maintained, inter alia, that her son L suffered from asthma, that since her last conviction she had had no further dealings with the criminal justice system, and that she fell to be treated as a stateless person for the purposes of art 8 of the European Convention on Human Rights. That objection was dismissed by the minister. The applicant appealed. On 18 November 2002 the regional court dismissed the appeal. It held that the minister had correctly performed the balancing exercise required by art 8 of the Convention. The interests of society as a whole outweighed those of the applicant. The applicant complained to the European Court of Human Rights that her expulsion from the respondent state constituted an unjustified interference with her right to private and family life contrary to art 8 of the Convention.
Held – Article 8 did not entail a general obligation to respect immigrants’ choice of their country of residence. Nevertheless, in a case which concerned considerations of family life, in addition to those of immigration, the extent of a state’s obligations to admit to its territory relatives of persons residing there varied according to the particular circumstances of the persons involved and the wider public interest. Factors to be taken into account included the extent to which family life was effectively ruptured, the extent of the ties in the contracting state, whether there were insurmountable obstacles in the way of the family living in the country of origin of one or more of them, and whether there were factors of immigration control or considerations of public order weighing in favour of exclusion. A further important consideration was whether the family life in issue 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, was precarious from the outset. In the instant case, the applicant had never held a provisional admission or residence title, and the relationships upon which she relied in support of her application had been formed at a time when it was known that her immigration status was precarious. The applicant’s requests had been refused upon the grounds of G’s failure to meet the minimum income requirements, and the applicant’s various convictions for criminal offences attracting custodial sentences. Moreover, the applicant’s arguments in relation to her statelessness had not been supported by evidence, and had merely been based upon conjecture. In those circumstances, the respondent state had been entitled to refuse the residence application upon the grounds cited. The authorities had performed the requisite balancing exercise, and had had struck a fair balance between the rights of the applicant, and their own interests in controlling immigration and the prevention of disorder or crime. Furthermore, the exclusion had not been permanent. Accordingly, there had been no violation of the applicant’s right to private and family life contained within art 8 of the Convention; Uner v Netherlands[2006] 3 FCR 340 and Da Silva v Netherlands[2006] 1 FCR 229 considered.
Cases referred to in judgmentDa Silva v Netherlands[2006] 1 FCR 229, ECt HR.
Ezzouhdi v France [2001] ECHR 47160/99, ECt HR.
Tuquabo-Tekle v Netherlands [2005] 3 FCR 649, ECt HR.
Uner v Netherlands[2006] 3 FCR 340, ECt HR.
ApplicationThe applicant, Jadranka Konstatinov, lodged an application against the Kingdom of the Netherlands, complaining that her expulsion from the respondent state constituted an unjustified interference with her right to private and family life contrary to art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The facts are set out in the judgment of the court.
26 April 2007. The European Court of Human Rights delivered the following judgment.
PROCEDURE1. The case originated in an application (no 16351/03) against the Kingdom of the Netherlands lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) on 20 May 2003 by Ms Jadranka Konstatinov (‘the applicant’), who was born in Serbia; at that time forming a part of the former Socialist Federal Republic of Yugoslavia of which the applicant was a citizen.
2. The applicant was represented by Mr P Baudoin, a lawyer practising in ‘s-Hertogenbosch. The Dutch government (‘the government’) were represented by their agent, Mr RAA Bocker, of the Ministry for Foreign Affairs.
3. On 31 January 2006 the court decided to give notice of the application to the government. Under the provisions of art 29(3) of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
4. The government of the State Union of Serbia and Montenegro, having been informed by the Section Registrar of their right to intervene (art 36(1) of the Convention and r 44 of the Rules of Court), notified the court on 4 May 2006 that they would not avail themselves of that right.
THE FACTS I. The circumstances of the case5. The applicant, who is of Roma origin, was born in 1964 in Rgotina (Serbia) and is currently living in ‘s-Hertogenbosch. She is also known to the Netherlands authorities under the names of Arenka Sarkevic, Violetta Sarof, Harenka Sarof and Harenka Sharkevits.
6. As a young child and after the death of her mother, the applicant left Serbia with her father to travel. In 1986, the applicant contracted a traditional Roma marriage with Mr G, who was born in Rome in 1967 and who was living in the Netherlands where he had been granted a residence permit in 1977. His nationality, if any, is unknown.
7. On 16 February 1987, the applicant—under...
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Upper Tribunal (Immigration and asylum chamber), 2015-03-16, AA/01519/2009 & Ors.
...on the support of a Scottish local authority.” The Strasbourg Court applied the same reasoning in Konstatinov v. The Netherlands [2007] 2 FCR 194, holding “[A]ccording to its well-established case-law under Article 8, relationships between adult relatives do not necessarily attract the prot......
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R (MM (Lebanon)) v Secretary of State for the Home Department
...in principle of the MIR is reinforced by the treatment of a similar issue by the Strasbourg court in Konstatinov v Netherlands [2007] 2 FCR 194, which also concerned minimum income requirements. The applicant was of Roma origin with a rather mixed background, including several aliases, an e......
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Om For Judicial Review
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