ECtHR- Tuquabo-Tekle And Others v The Netherlands, Application no. 60665/00, 1 March 2006
| Country of applicant: | Ethiopia |
| Court name: | European Court of Human Rights Third Chamber |
| Date of decision: | 01-03-2006 |
| Citation: | Tuquabo-Tekle And Others v. The Netherlands, Application no. 60665/00, 1 March 2006 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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.” |
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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… |
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Family member
Description
"Generally, persons married to a migrant, or having a relationship legally recognised as equivalent to marriage, as well as their dependent children and other dependants who are recognised as members of the family by applicable legislation. In the context of the Family Reunification Directive 2003/86/EC (and 2003/109/EC, Long-Term Residents), a third-country national, as specified in Article 4 of said Directive and in accordance with the transposition of this Article 4 into national law in the Member State concerned, who has entered the EU for the purpose of Family Reunification… In the context of Asylum, and in particular Council Regulation (EC) 343/2003 (Determining responsible Member State for Asylum claim), this means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States: (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried." |
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Family reunification
Description
"The establishment of a family relationship which is either: (a) the entry into and residence in a Member State, in accordance with Council Directive 2003/86/EC, by family members of a third-country national residing lawfully in that Member State (""sponsor"") in order to preserve the family unit, whether the family relationship arose before or after the entry of the sponsor; or (b) between an EU national and third-country national established outside the EU who then subsequently enters the EU." |
Headnote:
The European Court of Human Rights found that the authorities in the Netherlands had violated the right to family life of five Ethiopian nationals by not allowing them to be reunited in the Netherlands.
Facts:
The first applicant fled from Ethiopia to Norway during the civil war and applied unsuccessfully for asylum. Subsequently, she was given a residence permit on humanitarian grounds. After permission was granted by the Norwegian authorities for the applicant’s children to reside with her, her son (the second applicant) entered Norway.
After marrying the third applicant, a recognised refugee living in the Netherlands, the first applicant was granted a residence permit in the Netherlands and moved there with her son. Some years later, the first applicant filed a request for a provisional residence permit for her daughter still residing in Eritrea (the fifth applicant). Her request was rejected by the Minister of Foreign Affairs and on appeal by the Regional Court.
Invoking Article 8 of the Convention, the applicants complained that the Netherlands’ authorities had violated their right to family life, by not allowing the fifth applicant to reside in the Netherlands with the rest of her family.
Decision & reasoning:
In its ruling, the Court assessed the question whether Article 8 of the Convention imposed on the respondent State a positive obligation to allow the fifth applicant to reside in the Netherlands with the rest of her family.
In examining whether the Government’s had correctly balanced the applicants’ interests and its own interests in controlling immigration, the Court took into consideration the applicant’s age, her situation in her country of origin and the level of dependency on her parents.
Taking cue from its jurisprudence, the Court noted that the fact that parents leave their children in their country of origin while they settle abroad is not to be perceived as meaning that they abandon the idea of a future family reunion. Turning to the case at hand, it acknowledged the first applicant’s intention to unify with the daughter who was still living in Eritrea (fifth applicant) [45]. What is more, it accepted that the delays occurred derived from the lack of understanding on the requirements for applying for family reunification in the Netherlands [46].
With regards to the question of whether settlement in the Netherlands would be the most adequate means for the ensuring the applicants’ family unity, the Court took note of the lack of ties between the two youngest children and their parents’ country of origin [ 47]. In addition, the Court observed that the fifth applicant was at the time of the application and still , a minor. It further observed that the first applicant did whatever possible to be reunited with her daughter. Therefore, it concluded that the respondent State had violated Article 8 of the Convention with regards to the applicants’ right to family life.
Outcome:
Violation of Article 8.
Subsequent proceedings:
In September 2010, the CoE Committee of Ministers adopted a final resolution (CM/ResDH (2010)108) wherein it found that adequate execution measures had been taken by the Netherlands. Indeed, on the individual level, the daughter of Mrs Tuquabo-Tekle was firstly issued from the embassy a laissez-passer and an entry visa for the Netherlands, and subsequently she was issued a residence permit. On the general level, the Ministry of Justice adopted a new policy according to which it is now assumed that a child has factual family ties with the parent concerned if family life within the meaning of Article 8 of the ECHR exists.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Aliens Act 1994 (Vreemdelingenwet) |
Cited Cases:
| Cited Cases |
| ECtHR - Bankovic and Others v Belgium and 16 other Contracting States [GC], Application No. 52207/99 |
| ECtHR - K. and T. v Finland [GC], Application No. 25702/94 |
| ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81 |
| ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996 |
| ECtHR - Sen v.the Netherlands, no. 31465/96 |
| ECtHR - Gül v. Switzerland, no. 23218/94 |
| ECtHR - Benamar v. the Netherlands (dec.), no. 43786/04 |
| ECtHR - I.M. v. the Netherlands (dec.), no. 41266/98 |
| ECtHR - Chandra and Others v. the Netherlands (dec.), no. 53102/99 |
| ECtHR - Issa and Others v. Turkey, no. 31821/96 |
| ECtHR - N.C. v. Italy [GC], no. 24952/94 |