Sezen and another v Netherlands
| Judgment Date | 31 January 2006 |
Human rights – Private and family life – Refusal of residence permit following release from prison – Whether refusal violating right to family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
In October 1989, the first applicant, a citizen of Turkey, entered the Netherlands. In June 1990, the second applicant, who had been lawfully residing in the Netherlands since the age of seven, gave birth to his child. In October, they married and the first applicant requested a residence permit for the purpose of forming a family unit with his wife and working in the Netherlands. In February 1991, that permit was granted. In January 1992, the first applicant acquired the right to remain in the Netherlands indefinitely. On 31 July, he was arrested. On 20 January 1993, he was convicted of participating in an organisation aimed at committing offences and of being a co-perpetrator of intentionally being in the possession of 52 kilograms of heroin. He was sentenced to four years’ imprisonment. On 11 April 1995, he was released and went back to live with the second applicant and their child. Due to marital problems the first and second applicant ceased cohabiting for six months. On 14 May 1996, both applicants went to the Aliens’ Police Department as they wished to resume cohabitation and wanted to prolong the first applicant’s residence permit. In October 1996, a second child was born to the applicants. On 7 March 1997, the deputy minister of Justice informed the first applicant of her intention to impose a ten-year exclusion order on him by declaring him an undesirable alien. On 5 June, the request for prolongation of the residence permit was rejected on the ground that the first applicant had lost his indefinite right to remain when he had ceased to cohabit with the second applicant. Furthermore, in view of the first applicant’s criminal conviction the deputy minister considered that it was justified to deny the first applicant further residence and to impose an exclusion order. The interference with the first applicant’s right to respect for his family life was held to be justified in the interests of public order and the prevention of crime. On 19 March 1998, the first applicant’s objection against that decision was rejected. On 12 November, the regional court of The Hague allowed the first applicant’s appeal against the exclusion order but denied his appeal against the refusal of a residence permit. The applicants complained to the European Court of Human Rights that the refusal to allow the first applicant to reside in the Netherlands was in breach of
art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Held – Where continued residence was refused to an alien who had settled in a host country when already an adult, the court, when deciding whether refusal was necessary in a democratic society, would consider the following matters: the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he or she was to be expelled; the time elapsed since the offence had been committed and the applicant’s conduct during that period; the nationalities of the various persons concerned; the applicant’s family situation; whether the spouse knew about the offence at the time when she entered into the family relationship; whether there were children of the marriage; and the seriousness of the difficulties which the spouse was likely to encounter in the applicant’s country of origin. In the circumstances of the instant case, the authorities had failed to strike a fair balance between the applicants’ interests on the one hand and its own interest in preventing disorder or crime on the other. Accordingly, there had been a violation of art 8 of the Convention; Boultif v Switzerland [2001] ECHR 54273/00 considered.
Cases referred to in judgmentAmrollahi v Denmark [2002] ECHR 56811/00, ECt HR.
Baghli v France [1999] ECHR 34374/94, ECt HR.
Bouchelkia v France [1997] ECHR 23078/93, ECt HR.
Boultif v Switzerland [2001] ECHR 54273/00, ECt HR.
Dalia v France [1998] ECHR 26102/95, ECt HR.
Jakupovic v Austria[2003] 2 FCR 361, ECt HR.
Mehemi v France (No 2) [2003] ECHR 53470/99, ECt HR.
Mehemi v France [1997] ECHR 25017/94, ECt HR.
Radovanovic v Austria [2004] ECHR 42703/98, ECt HR.
Sen v Netherlands [2001] ECHR 31465/96, ECt HR.
Yildiz v Austria[2003] 2 FCR 182, ECt HR.
Yilmaz v Germany [2003] ECHR 52853/99, ECt HR.
ApplicationThe applicant Turkish nationals, Mr Mevlut Sezen and Mrs Emine Sezen-Oguz, alleged that the refusal to allow the first applicant to reside in the Netherlands was in breach of 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.
PROCEDURE1. The case originated in an application (no 50252/99) 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’) by two Turkish nationals, Mr Mevlut Sezen and Mrs Emine Sezen-Oguz (‘the applicants’), on 21 May 1999.
2. The applicants were represented by Mrs R Niemer, a lawyer practising in Amsterdam. The Netherlands government (‘the government’) were represented by their agent, Mrs J Schukking, of the Ministry of Foreign Affairs.
3. The applicants alleged that the refusal to allow the first applicant to reside in the Netherlands was in breach of art 8 of the Convention.
4. The application was allocated to the second section of the court (r 52(1) of the Rules of Court). Within that section, the chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
5. By a decision of 14 September 2004, the court declared the application admissible.
6. On 1 November 2004 the court changed the composition of its Sections (r 25(1)), but this case remained with the chamber constituted within the former Second Section.
7. On 15 November 2004 the government replied to a number of questions put by the court (r 59(1)). The applicants did not avail themselves of the opportunity to submit comments on the government’s reply.
THE FACTS I. The circumstances of the case8. The applicants were born in 1966 and 1972 respectively and live in Amsterdam.
9. The first applicant entered the Netherlands in October 1989. From his relationship with the second applicant, who has been lawfully residing in the Netherlands since the age of seven and holds a permanent residence permit, a child, Adem, was born on 27 June 1990. The applicants married on 25 October 1990. One month later, the first applicant filed a request for a residence permit for the purposes of forming a family unit with his wife and working in the Netherlands. This permit was granted on 12 February 1991. On 24 January 1992 the first applicant acquired the right to remain in the Netherlands indefinitely ex jure pursuant to art 10(2) of the Aliens Act 1965.
10. On 31 July 1992 the first applicant was arrested and placed in detention on remand. The regional court of Amsterdam convicted the first applicant on 20 January 1993 of participating in an organisation aimed at committing offences and of being a co-perpetrator of intentionally being in the possession of about 52kg of heroin, committed on or around 31 July 1992. The first applicant was sentenced to four years’ imprisonment. In respect of the determination of this sentence, the regional court held as follows:
Լ in the decision to impose a sentence involving a deprivation of liberty and the duration thereof, the regional court is in particular taking account of the fact that the accused has for a long time let his house be used as a safe house for quantities, of considerable size and suitable for further
distribution, of a substance harmful to public health, so that only a prison sentence of considerable duration is appropriate.’
The first applicant was released on 11 April 1995. He went back to live with his wife and child and found a job.
11. Due to marital problems, the applicants did not live together for some time in 1995/1996. On 28 November 1995 the first applicant’s name was removed from the municipal register as living at the same address as his spouse. He was registered as once again living in the matrimonial home on 25 June 1996.
12. On 14 May 1996 both applicants went to the Aliens’ Police Department as they were going to resume cohabitation and wanted to prolong the first applicant’s residence permit. However, an official at that department told them it would be better if the first applicant applied for an independent residence permit. For that reason, an application was made for prolongation of the first applicant’s residence permit or for an amendment of the restrictions attached to that permit so that it would enable him to reside in the Netherlands for the purpose of working in salaried employment without being required to live with his spouse.
13. On 14 October 1996 a second child, Mahsun, was born to the applicants. Both children have Turkish...
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