Tuquabo-Tekle and others v Netherlands
| Judge | JUDGE ZUPANCIC (PRESIDENT),JUDGES HEDIGAN,CAFLISCH,BIRSAN,GYULUMYAN,JAEGER AND MYJER,MR V BERGER (SECTION REGISTRAR) |
| Judgment Date | 01 December 2005 |
Human rights – Private and family life – Settled immigrant seeking to have daughter she left behind join her – National authorities refusing application – Whether Convention rights violated – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The first applicant fled to Norway from Ethiopia and was granted a residence permit on humanitarian grounds in 1990. She had left her daughter and her son in the care of relatives. The Norwegian authorities granted permission for the children to reside with her and she was successful in bringing the son to Norway. The first applicant subsequently married a man who had been granted refugee status in the Netherlands and she and her son moved there. Two further children were born to the couple. In 1997, the first applicant and her husband then sought a provisional residence visa in an attempt to have the daughter, then aged 15, join them from Eritrea. The visa was ultimately refused, inter alia, on the basis of the delay in the making of the application when Eritrean passports were available from 1994, that no close family ties with the daughter had been shown, and that the daughter had become integrated into the family unit of the relatives in Eritrea. The applicants complained to the European Court of Human Rights that their right to respect for family life under art 8 of the European Convention on Human Rights had been violated. The applicants also sought just satisfaction. An issue arose as to whether the court should find a violation, having regard to an earlier decision in which parents with settled immigrant status in the Netherlands had chosen to leave a daughter behind in the care of relatives for a number of years before they applied to be reunited with her when she was nine years old and who had had two children in the Netherlands in the intervening period. The applicants maintained that the national authorities were in breach of a positive obligation to permit the daughter to reside with them and that the daughter’s age made it more pertinent that she be allowed to join the family in the Netherlands because, in accordance with Eritrean custom, the relatives there had taken her out of school, and she was at an age when she could also be married off.
Held - (1) Having regard to the previous decision of the court relied on by the applicants, the government had failed to strike a fair balance between the applicants’ interests on the one hand and its own interest in controlling
immigration on the other. Although the first applicant disagreed with the choices made for the daughter and was unable to do anything in that regard whilst the daughter remained in Eritrea, those arguments did not, of themselves, justify the conclusion that the government was under a positive obligation to allow the daughter to reside in the Netherlands. However, the daughter’s age at the time when the application for family reunion was lodged, bearing in mind that she was still a minor at that time, was not such as to lead to a different conclusion to that in the earlier case.
Cases referred to in judgmentAbdulaziz v UK (1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.
Ahmut v Netherlands [1996] ECHR 21702/93, ECt HR.
Aktas v Turkey [2003] ECHR 24351/94, ECt HR.
Bankovic v Belgium (2001) 11 BHRC 435, ECt HR.
Barbera v Spain (art 50) [1994] ECHR 10588/83, ECt HR.
Benamar v Netherlands [2005] ECHR 43786/04, ECt HR.
Cakici v Turkey [1999] ECHR 23657/94, ECt HR.
Chandra v Netherlands [2003] ECHR 53102/99, ECt HR.
Gul v Switzerland (1996) 22 EHRR 93, ECt HR.
Ilascu v Moldova and Russia [2004] ECHR 48787/99, ECt HR.
IM v Netherlands [2003] ECHR 41266/98, ECt HR.
Issa v Turkey (2004) 17 BHRC 473, ECt HR.
K and T v Finland[2001] 2 FCR 673, ECt HR.
NC v Italy [2002] ECHR 24952/94, ECt HR.
Sen v Netherlands (2003) 36 EHRR 81, ECt HR.
Wilson v UK (2002) 13 BHRC 39, ECt HR.
ApplicationThe applicants alleged that the refusal by the Netherlands authorities to allow Mehret Ghedlay Subhatu to reside in the Netherlands constituted a breach of their right to respect for family life as guaranteed by 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 60665/00) 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 five Netherlands nationals, Goi Tuquabo-Tekle, Adhanom Ghedlay Subhatu, and Tarreke, Tmnit and Ablel Tuquabo, and one Eritrean national, Mehret Ghedlay Subhatu (the applicants), on 12 July 2000.
2. The applicants, who had been granted legal aid, were represented by Mr SD Lugt, a lawyer practising in Amsterdam. The Netherlands government (‘the government’) were represented by their agent, Mr RAA Bocker of the Ministry of Foreign Affairs.
3. The applicants alleged that the refusal by the Netherlands authorities to allow Mehret Ghedlay Subhatu to reside in the Netherlands constituted a breach of their right to respect for family life as guaranteed by 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 19 October 2004 the court declared the application admissible.
6. The applicants and the government each filed observations on the merits (r 59(1)). The chamber having decided, after consulting the parties, that no hearing on the merits was required (r 59(3) in fine), the parties were invited to reply in writing to each other’s observations. Neither party availed itself of this opportunity.
7. On 1 November 2004 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed third section (r 52(1)).
THE FACTS I. The circumstances of the case8. The applicant Goi Tuquabo-Tekle was born in 1963 and her son Adhanom Ghedlay Subhatu in 1978. Mrs Tuquabo-Tekle’s husband, Tarreke Tuquabo, was born in 1952, and their children Tmnit and Ablel in 1994 and 1995, respectively. These applicants live in Amsterdam. The applicant Mehret Ghedlay Subhatu—a daughter of Mrs Tuquabo-Tekle—was born on 12 November 1981 and lives in Adi Hanso, Eritrea.
9. In 1989, after the death of her first husband and during the civil war, Mrs Tuquabo-Tekle fled from Ethiopia to Norway, where she applied for asylum. She submitted that she had been harassed and detained by the Ethiopian authorities on account of her husband’s activities for the Eritrean People’s Liberation Front. Although denied asylum, she was granted a residence permit on humanitarian grounds in 1990. Her eldest child, Adhanom, had stayed behind in Addis Ababa with a friend of his mother’s, and she had left her other two children, Mehret and Michael, in the care of an uncle and their grandmother (in what subsequently became the State of Eritrea). After permission was granted by the Norwegian authorities for the children to reside with Mrs Tuquabo-Tekle, and with the assistance of those authorities and the UNHCR, her son Adhanom entered Norway in October 1991. It did not prove possible at that time to procure the departure of the other children from Eritrea, but it was Mrs Tuquabo-Tekle’s intention to bring them to Norway later.
10. In June 1992 Mrs Tuquabo-Tekle married Mr Tuquabo, who was living in the Netherlands where he had been admitted as a refugee. On 19 July 1993 Mrs Tuquabo-Tekle and her son Adhanom moved to the Netherlands to live with Mr Tuquabo. Mrs Tuquabo-Tekle was granted a residence permit in
order to reside in the Netherlands with her husband on 21 July 1993. Two children, Tmnit and Ablel, were subsequently born to the couple.
11. On 16 September 1997, Mrs Tuquabo-Tekle and Mr Tuquabo filed a request for a provisional residence visa for Mehret, in an attempt to have their (step)daughter, who was then 15 years old, join them in the Netherlands. Such a visa is normally a prerequisite for the grant of a residence permit, which confers more permanent residence rights.
12. On 25 March 1998 the Minister of Foreign Affairs rejected their request. The Minister concluded that there were no grounds to authorise family reunion in the Netherlands since the close family ties between Mrs Tuquabo-Tekle and her daughter were considered to have ceased to exist and such ties had never existed between Mr Tuquabo and his stepdaughter. Ever since Mrs Tuquabo-Tekle had left Eritrea, Mehret had been living with an uncle and her grandmother; she was deemed to have been integrated into the latter’s family and thus no longer actually belonged to Mrs Tuquabo-Tekle’s family unit. There was no indication that this situation could not be maintained. Moreover, after marrying Mr Tuquabo, Mrs Tuquabo-Tekle had started a new family unit in the Netherlands to which her daughter had never belonged. Furthermore, the couple had not shown that they had been sufficiently involved with the upbringing and care of their (step)daughter. According to the information available, it was Mrs Tuquabo-Tekle’s parents who had custody of Mehret.
13. On 20 April 1998 Mrs Tuquabo-Tekle and Mr Tuquabo filed an objection through counsel with the Minister of Foreign Affairs, emphasising that Mehret could no longer lead a normal existence in Eritrea now that she had reached marriageable age and her grandmother had decided that, for that reason, Mehret should stop going to school. There were, moreover, sound reasons why Mrs Tuquabo-Tekle had been unable to bring her daughter to Norway or the Netherlands prior to September 1997. At the time when she had been granted leave to remain in Norway and permission to be joined by her children, contacts with Eritrea were impossible and it was for this reason that only Adhanom, who had been...
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