ECtHR - G.R. v Netherlands, Application No. 22251/07

Facts:

The applicant arrived in the Netherlands in December 1997 to join his wife and two children who had arrived from Afghanistan five months earlier. A number of requests for asylum refused, he applied for a residence permit in order to reside with his family. At the same time, he requested an exemption from the obligation to pay the statutory administrative charges (leges) of 830 euros (EUR).He argued that he had a legitimate claim under Article 8 and that he had provided sufficient proof that he did not have the resources to pay the charges: since the withdrawal of his residence permit he himself was no longer eligible for social assistance and his family had to survive on social assistance intended for a single-parent family. There were no relatives or third persons prepared or able to pay the charges for him. He submitted a copy of his wife’s social assistance pay slip for the month of December 2005 (stating a total payable amount of EUR 988.71), an official extract from the register of marriages dated 29 December 2005 showing him to be married to his wife, and an official document showing him, his wife and their children to be registered at the same address. The Minister decided not to process the application for a residence permit, as the applicant had failed to pay the required charge.

Decision & reasoning:

The Courtfound it more appropriate to consider the case under Article 13 of the Convention rather than under Article 8 as submitted by the applicant.

The Court took the view that the essential question in the case is whether the applicant had had effective access to the administrative procedure by which he might, subject to fulfilling the conditions prescribed by domestic law, obtain a residence permit which would allow him to reside lawfully with his family in the Netherlands. In order to be effective, the remedy required by Article 13 must be available in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. The Court then observed that an exemption from having to pay the EUR 830 administrative charge was available to the applicant in law, subject to his satisfying the Minister for Immigration and Integration that he was actually unable to raise the money himself. In the event, the applicant submitted a copy of his wife’s most recent social assistance pay slip, from which it appeared that the monthly income of his family was EUR 988.71. The Minister for Immigration and Integration nonetheless turned down his request on the ground that he had failed to submit a declaration of income and assets, verified by that same municipality, along with proof of his and his wife’s attempts to obtain funds from other sources. It is therefore apparent that, for lack of these documents, the Minister never considered whether the applicant’s state of indigence was such as to qualify him for an exemption from the obligation to pay the administrative charge.

 In the circumstances of the present case, characterised as they are moreover by the disproportion between the administrative charge in issue and the actual income of the applicant’s family, the Court found that the extremely formalistic attitude of the Minister – which, endorsed by the Regional Court, also deprived the applicant of access to the competent administrative tribunal – unjustifiably hindered the applicant’s use of an otherwise effective domestic remedy. There has therefore been a violation of Article 13 of the Convention.

Outcome:

A violation of Article 13 of the Convention.

The applicant’s claim for just satisfaction was dismissed.

Observations/comments:

Of its own motion, the Court raised the question whether the applicant had been denied the effective remedy guaranteed by Article 13 of the Convention and assessed the complaint in light of Article 13 instead of Article 8 as indicated by the applicant.