TrustHLT/LaCour huggingface dataset:
GR1 (Government): Now, I will not repeat all the facts and observations that were already submitted to your court in the government's memorial of the 2nd of August, 2013.
GR1 (Government): Instead, I would like to draw your attention to a few points which, in the context of this specific case, we believe should be highlighted.
GR1 (Government): Now, allow me to begin with a few words on the facts of the case.
GR1 (Government): And I will then outline the framework for assessing the competing interests and demonstrate why, in the present case, the interests of the community as a whole should take precedence over the individual interests of the applicant.
GR1 (Government): I will also explain what weight we believe should be given to the best interest of the applicant's children.
GR1 (Government): And in assessing whether the refusal to grant the applicant a residence permit and her subsequent removal is proportionate for the purposes of Article 8.
GR1 (Government): In this context, I would also like to make a few remarks about the report of Professor Golvorboor, which, due to its late submission by the applicant, we could not comment on at an earlier stage.
GR1 (Government): Furthermore, I will go into the issue of protection of union citizens under Article 20 of the Treaty on the Functioning of the European Union and any derivative rights for third country nationals under that article.
GR1 (Government): And finally, I will conclude with some remarks in regards to the claim for compensation made by the applicant.
GR1 (Government): Now, what is the present case about?
GR1 (Government): The applicant and her husband, Mr. Walden,
GR1 (Government): are born and raised in Suriname.
GR1 (Government): They started a relationship when they were both still living there.
GR1 (Government): In 1991, Mr. Walden traveled from Suriname
GR1 (Government): to the Netherlands to stay with his father.
GR1 (Government): And between 1991 and 1995, the applicant applied five times for a visa for the purposes of visiting various family members in the Netherlands.
GR1 (Government): Now, all of these requests were rejected, ultimately based on the risk that the applicant would overstay the allowed visa period.
GR1 (Government): And her sixth request for a visa for the purpose of staying with her sister was finally granted.
GR1 (Government): And the applicant arrived in the Netherlands in March 1997, but did not return to Suriname when her visa expired.
GR1 (Government): Now, strikingly enough, none of those requests mentioned her partner, Mr. Walden.
GR1 (Government): The government cannot but think that the applicant did not mention her now husband deliberately with a view to settling in the Netherlands, knowing that she did not meet the requirements for a residence permit, and thus presenting the Dutch authorities with a fait accompli.
GR1 (Government): And this view is supported by the applicant's remark in these proceedings that she had no reason to stay in Suriname after her parents died.
GR1 (Government): And the fact that the applicant at no stage during her proceedings proved that she met all the requirements for a residence permit.
GR1 (Government): Now, the applicant married Mr. Walden in 1999,
GR1 (Government): and a year after their first child was born.
GR1 (Government): The child is a Dutch national, since Mr. Walden was granted
GR1 (Government): Dutch citizenship in 1993.
GR1 (Government): And between 1997 and 2010, the applicant filed five requests for a residence permit.
GR1 (Government): And apart from the first request, all requests were rejected because the applicant did not hold a valid provisional residence visa, and was not eligible for an exemption from the requirement to hold such a visa.
GR1 (Government): Now, the applicant's appeal against the refusal of her fifth request for a residence permit is at this moment still pending before the Council of State, which is the highest judicial instance in immigration matters.
GR1 (Government): Now, Mr. President, it is not in dispute
GR1 (Government): that there is family life within the meaning of Article 8, paragraph 1 of the Convention, between the applicant, her husband, and their children.
GR1 (Government): We stress, however, that contrary to what the applicant has said, she has at no time been entitled to a residence permit.
GR1 (Government): This case is clearly different in that respect from the applicant in the case of Rodriguez da Silva versus the Netherlands.
GR1 (Government): And we believe that since the disputed decision did not involve revoking an existing residence permit, there was no interference with the applicant's family life.
GR1 (Government): Now, the relevant question is, therefore, whether the Dutch authorities have a positive obligation to allow the applicant to reside in the Netherlands to enable her to enjoy family life with her husband and children.
GR1 (Government): Now, according to the court's case law, regardless of whether a positive or negative obligation exists, a fair balance must be struck between the interests of the alien concerned and the public interests of the state party to the Convention.
GR1 (Government): Now, in the present case, there was, on the one hand, the applicant's right to respect for family life within the Netherlands.
GR1 (Government): And on the other hand, the public interest involved regulating immigration.
GR1 (Government): Now, we are convinced that in deciding that in this case, the latter interest should prevail, the authorities did not overstep their margin of appreciation.
GR1 (Government): And we feel this position is strengthened by the following considerations.
GR1 (Government): The applicant established her family life at a time she had no grounds whatsoever for believing that she would be issued with a residence permit to stay in the Netherlands.
GR1 (Government): And nor was she given any reason to believe that she would be issued such a permit.
GR1 (Government): And following your court's case law, it is only in the most exceptional circumstances that family life built up during unlawful residence imposes an obligation on the state to permit residence within its territory.
GR1 (Government): And are such most exceptional circumstances present in the applicant's case?
GR1 (Government): Well, we believe not.
GR1 (Government): There are no objective impediments to Mrs. Jeunesse exercising her right to family life
GR1 (Government): in Suriname.
GR1 (Government): Nor are there otherwise insurmountable obstacles for doing so.
GR1 (Government): Both the applicant and her husband are of Surinamese origin.
GR1 (Government): The applicant lived in Suriname until she was 30 years old, almost twice as long as her stay in the Netherlands.
GR1 (Government): And her ties with Suriname must therefore be strong.
GR1 (Government): The applicant still has relatives living in Suriname.
GR1 (Government): There is no reason to assume that the applicant or her husband may not be able to find a job, find housing, and build up their lives in Suriname.
GR1 (Government): And this brings me to the interest of the applicant's children.
GR1 (Government): Now, there is no doubt that we agree with the applicant that it is generally important for children to grow up in the vicinity of both parents.
GR1 (Government): And in this case, however, that is not an issue, since there is no question of the family being ruptured.
GR1 (Government): Like I said before, there are no objective impediments or insurmountable obstacles to exercising family life elsewhere.
GR1 (Government): The children are still young and may be expected to adjust to the Surinamese culture.
GR1 (Government): The children would not have to learn a new language, since Dutch is the common language in Suriname and is also the language taught in the educational system.
GR1 (Government): And this will help the children to adjust to their new school, which they will be able to attend in Suriname.
GR1 (Government): Now, we emphasize that no evidence has been admitted to suggest that there are special ties or highly exceptional circumstances linking them to the Netherlands, going beyond the mere integration in the Netherlands.
GR1 (Government): Now, the present case is clearly different from the cases of Rodriguez da Silva versus the Netherlands and Nunes versus Norway.
GR1 (Government): In those two cases, the court held that there were exceptional circumstances, which justified the conclusion that expulsion of the mothers would be in breach of Article 8 of the Convention.
GR1 (Government): What were the facts in those cases?
GR1 (Government): The children and father in both cases had Dutch and Norwegian nationality, and the mothers did not.
GR1 (Government): The parents in both those cases were separated.
GR1 (Government): And it was shown that, apart from being integrated in their respective countries, they had become vulnerable after the separation of their parents and the changes in their care and home situation.
GR1 (Government): Furthermore, in both cases, a family court deemed it in the best interest of the children to stay in their respective countries and also they could not follow their mothers to their countries of origin as a result of custody and access arrangements that had been put in place by a family court.
GR1 (Government): The expulsion of the mothers in those highly exceptional circumstances would have resulted in the family life of those involved being ruptured.
GR1 (Government): Now, in the present case, there is no question of a broken relationship between the parents and therefore no custody or access arrangements.
GR1 (Government): Neither did a family court consider that it would be in the best interest of the children to stay in the Netherlands.
GR1 (Government): There are no objective impediments to exercising the right to family life outside the Netherlands.
GR1 (Government): Now, in summary, the interests of the applicant's children have been thoroughly considered by the immigration authorities and national courts.
GR1 (Government): And Mr. President, this brings me
GR1 (Government): to the Culverboer report, which the applicant submitted in her memorial of the 5th of August, 2013, to support her contention that the return of Mrs.
GR1 (Government): Jeunesse to Suriname would have a highly adverse effect on her children.
GR1 (Government): Now, first of all, we would like to express our profound surprise that this report was submitted unannounced at such a late stage of the proceedings.
GR1 (Government): The applicant's first child was born in 2000.
GR1 (Government): And this case was lodged before your court in 2010.
GR1 (Government): For reasons unknown, the applicant waited until mid-2013 to request an investigation to be carried out regarding her children.
GR1 (Government): We cannot help but wonder if the referral of this case to the Grand Chamber had anything to do with that.
GR1 (Government): But by acting as she did, Ms. Jeunesse
GR1 (Government): has deprived the government of the opportunity to take this report into consideration in the national proceedings, and more importantly, to respond to the report as it would have wished.
GR1 (Government): Now, even though we have little time to reflect upon this report, I would like to make a few general remarks and as well respond to its substance.
GR1 (Government): First, some remarks concerning the report in general.
GR1 (Government): Professor Kalverboer's reports are well known in the Netherlands.
GR1 (Government): She has, on a number of occasions, drawn up general reports with regards to the residence and forcible return of asylum seekers' children under the age of 18.
GR1 (Government): Now, Professor Kalverboer's general view is that the forcible expulsion of asylum seekers' children who have lived in the Netherlands for more than five years is hardly ever acceptable in view of the emotional and psychological damage caused by enforced departure from the Netherlands.
GR1 (Government): Also in the report, in the present case, Professor Kalverboer refers to this general view.
GR1 (Government): First of all, the government would like to point out that it doesn't follow this general view.
GR1 (Government): But furthermore, the applicants' children are not asylum seekers' children, and we believe that they cannot be considered similarly.
GR1 (Government): Asylum seekers' children live under very different circumstances in the Netherlands compared to the applicants' children.
GR1 (Government): And therefore, we cannot accept a reference to Professor Kalverboer's general view regarding asylum seekers' children in the context of the present case.
GR1 (Government): The opposite would mean that any child having established roots in the Netherlands over five years could no longer be expected to leave the country together with his family on the grounds that it would be harmful for the child.
GR1 (Government): And we believe that this goes way too far, and there is no support for this principle in the court's case law.
GR1 (Government): And we cannot endorse the conclusion that putting down roots in itself prevents any expectation being made to the applicant and her children to return to Suriname.
GR1 (Government): Immigration is by no means an unknown phenomenon.
GR1 (Government): Now, concerning the substantive findings of the report, I would like to make four remarks.
GR1 (Government): Firstly, we doubt the objectivity of the conclusions of the report.
GR1 (Government): The report was drawn up on the basis of information provided by the applicant and her children, and it is likely that the information given to Professor Kalverboer was influenced by their wish to remain in the Netherlands.
GR1 (Government): Secondly, the report presents a different picture of the applicant's family situation than that presented in the proceedings until then.
GR1 (Government): According to the report, the children's development is being adversely affected by the situation in which they find themselves.
GR1 (Government): And this surprises us, since documents submitted by the applicant earlier in the proceedings emphasize how well the children are doing and how well they are faring and their development is going well in spite of the situation and the uncertainty surrounding the applicant's residence permit.
GR1 (Government): No explanation is given for this difference.
GR1 (Government): Now, as for the apprehension and detention of the applicant by the aliens police, we do not deny that this event can have an impact, especially on young children.
GR1 (Government): But however, when all proportionate means to bring about the expulsion have been employed to no avail, the apprehension of aliens by the police is an inevitable consequence of unlawful residence.
GR1 (Government): The fact that children might witness such an event cannot be a reason for not carrying out forcible expulsions if all other efforts have failed.
GR1 (Government): Thirdly, we believe that the report is incomplete with regards to an essential element.
GR1 (Government): Professor Kalverboer only considers two scenarios in her report.
GR1 (Government): The first is that in which the applicant returns to Suriname alone.
GR1 (Government): And the second scenario is that in which the applicant returns to Suriname together with her children.
GR1 (Government): But nothing is said, however, about the whole family, including the father returning to Suriname.
GR1 (Government): And because it does not address this scenario, the report fails to shed light on what impact it would have on the children's development.
GR1 (Government): We find this all the more surprising since the authors of the report attach great value to the continuity, stability, and care provided within the family as a whole.
GR1 (Government): Fourthly, it is unclear on what grounds Professor Kalverboer bases her conclusion that the applicant would struggle to support herself and her children in Suriname.
GR1 (Government): As far as we are aware, Professor Kalverboer has no specific expertise in respect of the general situation in Suriname with regards to education, work, opportunities for development, and other circumstances.
GR1 (Government): But moreover, there is no evidence that the family's individual situation upon return to Suriname has been given any consideration.
GR1 (Government): And we can, therefore, not attach much value to that conclusion.
GR1 (Government): Now, for all these reasons, we believe that the report fails to give sufficient concrete and individual grounds to substantiate the conclusion that there are highly exceptional circumstances that leaving to live in Suriname would seriously jeopardize their development.
GR1 (Government): Now, the government believes that this case is more akin to Antwi versus Norway, in which the court ruled that there were no insurmountable obstacles to the family settling together in the father's country of origin.
GR1 (Government): And contrary to what the applicant has said in her pleadings, the decisions show a full balancing of interests.
GR1 (Government): Now, in sum, I would like to repeat that the applicant had at no time possessed a residence permit.
GR1 (Government): She chose to intensify her family life despite the uncertainty about her immigration status.
GR1 (Government): And the children are not tied to the Netherlands due to custody or access arrangements, and nor is their stay in the Netherlands considered in their best interest by a family court.
GR1 (Government): It is not effectively possible for the applicant and her family to exercise family life in Suriname.
GR1 (Government): Sorry, I meant to say it's not effectively impossible, of course.
GR1 (Government): There are no impediments for the applicant, her husband, and children as a family to rebuild their lives in Suriname.
GR1 (Government): The Dutch language is spoken there.
GR1 (Government): They have a social network, and the children will be able to attend school.
GR1 (Government): The husband's criminal conviction is no obstacle to the family's exercise of its rights to family life in Suriname.
GR1 (Government): And there is no evidence of any exceptional circumstances relating to the children.
GR1 (Government): To put it bluntly, in this case, only the fact that the children have Dutch nationality and have resided in the Netherlands since their birth could constitute exceptional circumstances.
GR1 (Government): And in our view, that is insufficiently exceptional in the light of the court's established case law.
GR1 (Government): Now, if the court were to rule that Article 8 had been violated in this case, we believe that that would mark a far-reaching shift in the court's established case law.
GR1 (Government): In conclusion, taking all the above-mentioned factors into account, there are no facts or circumstances to suggest that the applicant's right to respect for family life requires that the weighing of interests should be decided to her advantage.
GR1 (Government): And there was no obligation to allow her to stay in the Netherlands.
GR1 (Government): And therefore, we believe that the decision to refuse her a residence permit was in accordance with Article 8.
GR1 (Government): Now, Mr. President, you have granted leave
GR1 (Government): to the Immigrant Council of Ireland to make written submissions as to the possible rights under Article 20 of the TFEU.
GR1 (Government): Before going into the question what possible rights the applicant may derive from that article, I would first draw your attention to the fact that ICI notes in its third-party submission of 18 September 2013 that Article 3 of Protocol Number 4 may be engaged in the present case.
GR1 (Government): And ICI also invokes Article 14 in conjunction with Article 8 of the convention, stating that EU citizens and their third country national family members are better protected if they have made use of the right of free movement compared to EU citizens and their third country national family members who have never left the member state of which they have the nationality.
GR1 (Government): As ICI acknowledges, these parts of the application were declared inadmissible by the court in its decision the 4th of December 2012.
GR1 (Government): Now, it is obvious that ICI cannot bring forward these complaints in the proceedings, since apart from the fact that ICI is not a party to these proceedings, the case referred to the Grand Chamber by virtue of Article 43 can be no more and no less than the case as it has been declared admissible by the chamber.
GR1 (Government): And according to the court's decision, and in particular paragraph 82, the present case concerns Article 8 of the convention and nothing but Article 8.
GR1 (Government): Nevertheless, I will briefly respond to the merits of the complaint based on Article 8 taken together with Article 14.
GR1 (Government): ICI claims that there was an unlawful distinction between Union citizens not having used their rights of free movement and Union citizens having used their rights of free movement.
GR1 (Government): I make two observations in this regard.
GR1 (Government): Firstly, the claim of ICI fails to take into account an important characteristic of the case law of the Court of Justice of the European Union.
GR1 (Government): Namely, Union citizens who have never exercised their rights of free movement and have always resided in a member state of which there are nationals are not covered by secondary EU law.
GR1 (Government): I refer to a ruling in the case of de Russi.
GR1 (Government): And this may lead to what Advocate General Sharpstone calls reverse discrimination.
GR1 (Government): But under the current case law of the ECJ, this is not prohibited.
GR1 (Government): And secondly, viewed from the perspective of Article 14, we submit there is no discrimination.
GR1 (Government): And this is for the simple reason that the principle of equal treatment requires that comparable situations must not be treated differently unless such treatment is objectively justified.
GR1 (Government): Union citizens not having used their free movement rights are not comparable to Union citizens having used their rights.
GR1 (Government): And these are different situations and may, therefore, be treated differently.
GR1 (Government): And this leads me to the main question, whether any rights may be derived from Article 20 TFEU.
GR1 (Government): ICI suggests, on the basis of the case law of the ECJ, that Article 20 TFEU gives rise to an unrestricted right of family life with the third country national family members of EU citizens who have not made use of their rights to free movement.
GR1 (Government): And in our view, ICI misinterprets the ECJ's case law.
GR1 (Government): The Zambrano case does not create a general right of family life within the EU.
GR1 (Government): To the contrary, as we have stated in our written observations, the Zambrano case only applies to very exceptional circumstances.
GR1 (Government): Namely, it only applies to situations in which national measures have the effect of depriving Union citizens of their genuine enjoyment of the substance of the rights conferred by virtue of that status.
GR1 (Government): Now, the ECJ held, in Zambrano, that the genuine enjoyment of the substance of the rights conferred by the virtue of Union citizenship was at risk.
GR1 (Government): And let's have a look at the facts in that case.
GR1 (Government): The minor children had Belgian nationality, and their parents were both third country nationals.
GR1 (Government): And to refuse the parents a right of residence would de facto mean that the minor children would be forced to leave the territory of the EU with their parents.
GR1 (Government): And that would lead to the denial of the genuine enjoyment of the substance of the EU rights conferred to the children.
GR1 (Government): Now, under these exceptional circumstances, the ECJ held that the parents should be given a right to stay within Belgium.
GR1 (Government): Now, in summary, what is the Zambrano test?
GR1 (Government): It is a test that focuses on the question whether the Union citizen involved would be obliged to give up residence in the EU if the non-EU national were to be removed from the EU.