ECtHR - Sen v. the Netherlands, Application no. 31465/96, 21 December 2001
| Country of applicant: | Turkey |
| Court name: | European Court of Human Rights First Section |
| Date of decision: | 21-12-2001 |
| Citation: | Sen v. the Netherlands, Application no. 31465/96, 21 December 2001 |
Keywords:
| Keywords |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
|
Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
|
Dependant (Dependent person)
Description
“While there is no internationally recognized definition of dependency, UNHCR uses an operational definition to assist field staff in the work with individual cases: - Dependent persons should be understood as persons who depend for their existence substantially and directly on any other person, in particular because of economic reasons, but also taking emotional dependency into consideration. - Dependency should be assumed when a person is under the age of 18, and when that person relies on others for financial support. Dependency should also be recognized if a person is disabled not capable of supporting him/herself. - The dependency principle considers that, in most circumstances, the family unit is composed of more that the customary notion of a nuclear family (husband, wife and minor children). This principle recognizes that familial relationships are sometimes broader than blood lineage, and that in many societies extended family members such as parents, brothers and sisters, adult children, grandparents, uncles, aunts, nieces and nephews, etc., are financially and emotionally tied to the principal breadwinner or head of the family unit. 14. UNHCR recognizes the different cultural roots and societal norms that result in the variety of definitions of the family unit. It therefore promotes a path of cultural sensitivity combined with a pragmatic approach as the best course of action in the process of determining the parameters of a given refugee family.“ In the context of applications for protection, applications may be made on behalf of dependants in some instances per Art 6 APD. In the context of the Dublin II Regs dependency may be grounds for evoking the humanitarian clause (Art. 15) in order to bring dependent relatives together. In the context of family reunification a condition precedent in the case of some applicants is a relationship of dependency. “The principle of dependency requires that economic and emotional relationships between refugee family members be given equal weight and importance in the criteria for reunification as relationships based on blood lineage or legally sanctioned unions… |
Headnote:
The European Court of Human Rights found an infringement of the applicants’ right to respect for their family life, guaranteed by Article 8 of the European Convention on Human Rights, on account of the rejection of their application for a residence permit for their daughter.
Facts:
The first two applicants were beneficiaries of a residence permit in the Netherlands. They left their daughter (third applicant) in Turkey. They applied unsuccessfully for a residence permit for the third applicant. On account of the rejection of their application, they complained of an infringement of their right to family life, as enshrined in Article 8 of the Convention.
Decision & reasoning:
The Court reiterated the need to examine whether the country’s decision not to give a residence permit to the third applicant was taken while balancing the competing interests of the individual and of the society as a whole [31]. In order to establish the extent of the obligations of a State in relation to nationals of third countries, the Court considered it necessary to consider the facts of the case based on the applicable principles, which were set out in its judgements Gül (23218/94) and Ahmut (21702/93). In this context, the Court took into account the age of the child concerned, her situation in her country of origin and the level of dependence in relation to her parents [37]. It further noted that the present case had certain common points with the situation of the applicants in the case Ahmut where no violation of Article 8 had been found based on the facts of the case [38]. Concerning the case at hand, it took note of the fact that the third applicant was supported by her aunt and uncle after her mother’s departure to the Netherlands; she lived all her life in Turkey and had therefore strong links with the linguistic and cultural environment of her country. What is more, part of her family was still living there [39]. However, contrary to its judgement in the case Ahmut, the Court estimated that in the present case there was a major obstacle in returning the family Sen to Turkey. Beneficiaries of permits to stay in the Netherlands, the two first applicants had established their life as a couple in the Netherlands, where they had lived legally since many years and where two more children were born. Those two children lived their whole lives in the Netherlands, in the cultural and educational environment of this country. Therefore, they have little or no connection with their country of origin. Under these conditions, the most appropriate way to develop family life was, given the young age of the third applicant, by bringing her to the Netherlands [40].
Outcome:
Violation of Article 8
Observations/comments:
Concurring Opinion of Judge Türmen
Judge Türmen shared the majority’s opinion according to which the refusal to allow the third applicant to come and live in the Netherlands had not struck a fair balance between the competing interests of the applicants and the community. In his opinion, when migrant parents with a legal status in a country want to bring with them the child they left behind, it is inhuman to make them choose between the country of their establishment and the company of their child, which constitutes a fundamental right to family life.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| ECtHR - Johansen v Norway, Application No. 17383/90 |
| ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996 |
| ECtHR- Berrehab v. the Netherlands, Application no. 10730/84 |
| ECtHR - Mehemi v. France, no. 53470/99 |
| ECtHR - X., Y. and Z. v. United Kingdom, no. 21830/93 |
| ECtHR - Gül v. Switzerland, Application no. 23218/94 |
| ECtHR - Boughanemi v. France, Application no. 22070/93 |
Follower Cases:
Other sources:
ECtHR - Boughanemi v. France, Application no. 22070/93