TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): and had enough income to cover the cost of living for them both.
AP1 (Applicant): Of course, at that time, both parties were not married.
AP1 (Applicant): And since their relationship started in 87, it could be considered a steady relationship.
AP1 (Applicant): There was no criminal background, and the house they lived in was according to the rules at that time for a residence permit.
AP1 (Applicant): So if in 97 the ministry had considered the application on the merits, there was no reason not to grant a residence permission then.
AP1 (Applicant): Since 20 October, 97, Mrs. Jornet is trying to receive a residence permit.
AP1 (Applicant): This can be seen from the document from the town hall of registration of the Hague.
AP1 (Applicant): She has been registered in that administration since 20 October, 97, first living in her first house in Rotterdam and later on since 20 July, 98, during five months in the first house in the Hague, and since 17 December, 98, in the house where she has been living since.
AP1 (Applicant): You can see that every document shows this address, salary slips, school papers, et cetera.
AP1 (Applicant): The government repeats itself in the memorial of 2 August concerning the facts, also that part of the facts that cannot follow from the file and have been clarified before.
AP1 (Applicant): For example, in a reply of 5 February, 2012.
AP1 (Applicant): Mrs. Jornet has not requested a residence permit for work,
AP1 (Applicant): but to stay with her partner, who she knew since 87, as can be seen in the court judgments and even in the different decisions from the ministry itself.
AP1 (Applicant): In every procedure, the family life with her husband and children was the item.
AP1 (Applicant): Contrary to the statement of the government, the only issue was the provisional residence visa.
AP1 (Applicant): Since our new Aliens Act 2000, effective since 1 March 2001, there had to be clear that the reasons not to need a provisional residence permit in this kind of cases had to be found in exceptional hardship.
AP1 (Applicant): But at this moment, Article 8 of the Convention might as well be a reason not to require a professional residence visa, since the rules have been changed after your court decided, inter alia, in the Rodriguez da Silva case, the way of deciding in these kind of cases was excessive, formalistic.
AP1 (Applicant): In order to decide on that exemption, there has to be a full review on Article 8 of the Convention.
AP1 (Applicant): According to the Dutch jurisprudence, the ministry has to argue now whether or not Article 8 of the Convention is applicable concerning the professional residence visa.
AP1 (Applicant): If Article 8 is not applicable, then the exceptional hardship still has to be considered.
AP1 (Applicant): A professional residence visa that was not required in 97, when the former Dutch Mrs. Jonesse
AP1 (Applicant): started her battle to be allowed to stay in the Netherlands with her Dutch husband and her Dutch children.
AP1 (Applicant): The government argues decisions have been made within a reasonable time.
AP1 (Applicant): The applicant has already replied on the 5th of February, 2012, paragraph 2.8,
AP1 (Applicant): and in the memorial of 5 August, paragraph 4, there was not decided within a reasonable time.
AP1 (Applicant): And there were no attempts to extradite her since 97.
AP1 (Applicant): Besides the repeating of partly wrong facts, the government is focusing on the leave of a nearly complete Dutch family to outside the EU without having in mind any rights in international law or humanitarian law these individuals obtain.
AP1 (Applicant): And I want to cite Article 13 of our Aliens Act 2000.
AP1 (Applicant): A request for a residence permit will only be granted in case of international obligations, in case the presence of the applicant is essential in the Netherlands, or in the event of compelling humanitarian reasons.
AP1 (Applicant): Words that seem to have no impact on a policy that is used.
AP1 (Applicant): Looking at the response of the government in the memorial, it cannot be seen that there is any balancing of interests.
AP1 (Applicant): What should have been given in 97 is still denied in 2013 without considering what this means for the Dutch husband and the three Dutch children, who have to be able also to rely on the government to take care of their interests.
AP1 (Applicant): You had a question your court asked about the exemption of exceptional hardship.
AP1 (Applicant): You asked from the government how often that is granted in practice, for example, in the last five years.
AP1 (Applicant): The government cannot answer the question.
AP1 (Applicant): But I can tell you, from every decision, there exists a minute.
AP1 (Applicant): In these minutes can be seen how often the exemption is granted.
AP1 (Applicant): When you get to the decision where nothing is happening, it's one page.
AP1 (Applicant): You get a residence permission.
AP1 (Applicant): So in that kind of cases, there is this minute.
AP1 (Applicant): The government mentions four very severe cases, but lesser severe cases exist when no professional residence visa is required, often since the change of law because of Article 8 of the convention.
AP1 (Applicant): And I can give you a few examples.
AP1 (Applicant): A Surinamese lady with a Dutch child, born 13 May 2010, is extradited and re-enters with a short visa for visit in 2011.
AP1 (Applicant): Not with a professional residence visa.
AP1 (Applicant): She applies for a residence permit in 2012 with Dutch child, which application is granted without a professional residence visa.
AP1 (Applicant): The father, Dutch, but Surinamese origin, works, pays alimony.
AP1 (Applicant): There is a joint custody and are visiting rights with the child living with the mother.
AP1 (Applicant): So it looks like the case.
AP1 (Applicant): And the next one, it's the neighbor of my client.
AP1 (Applicant): She comes from Ghana.
AP1 (Applicant): She has two children, born 29 June 2001 and 15 April 2007.
AP1 (Applicant): And she has a partner who has also the Ghanese nationality, and he has a residence permit.
AP1 (Applicant): She has medical problems, but they can be treated in Ghana.
AP1 (Applicant): Nevertheless, she receives a residence permit without professional residence visa to stay with her eldest son.
AP1 (Applicant): And the third one, a man born in 20 February in 79 from Sierra Leone had asylum, but that was withdrawn because of changed policy.
AP1 (Applicant): Final decision 10 February 2009.
AP1 (Applicant): He married a Dutch.
AP1 (Applicant): That is not right.
AP1 (Applicant): Yeah, he married a Dutch lady from Sierra Leone origin.
AP1 (Applicant): More than two years later on 15 July 2011.
AP1 (Applicant): And then he applied for a residence permission, which was given without a professional residence visa on 11 September 2012.
AP1 (Applicant): In these three examples, no professional residence visa was required because of Article 8 of the convention.
AP1 (Applicant): In these three examples, there was not said that the family life could take place in the country of origin.
AP1 (Applicant): Why not?
AP1 (Applicant): Often, a decision is made and no professional residence visa is asked.
AP1 (Applicant): No one argues why not.
AP1 (Applicant): If Article 8 is involved, a positive decision on Article 8 is given without making the problems, as in the case of the applicant.
AP1 (Applicant): Yeah, then the legal issues, Article 8.
AP1 (Applicant): Of course, we are happy that the government agrees that the applicant has a family life, paragraph 49.
AP1 (Applicant): But according to paragraph 61 of the memorial, the family can settle in Suriname since this family is no broken family, since there are no special educational health issues, and since the fact of being born and grown up in the Netherlands, of having the Dutch nationality is insufficient exceptional.
AP1 (Applicant): Why would the decision in Antwerp versus Norway be applicable here?
AP1 (Applicant): Wasn't there the criminal behavior of the applicant important?
AP1 (Applicant): The use of a false identity?
AP1 (Applicant): They were married in Ghana.
AP1 (Applicant): Mrs. Jones has always been clear about her identity,
AP1 (Applicant): and besides, she is a former Dutch citizen.
AP1 (Applicant): Her children have no ties with her country of origin.
AP1 (Applicant): They've never been there.
AP1 (Applicant): The extended family lives in the Netherlands.
AP1 (Applicant): In this case, there are five persons involved, four persons of Dutch nationality, one person of former Dutch nationality, and present Surinamese nationality.
AP1 (Applicant): These four Dutch citizens have a family and private life, according to article 8 as well.
AP1 (Applicant): In article 8, paragraph 2, I like to say it here.
AP1 (Applicant): There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protections of the rights and freedoms of others.
AP1 (Applicant): Nowhere in the arguments of the government is seen any reference to these important rules.
AP1 (Applicant): Why should a Dutch father with his three Dutch sons leave the country because the government is not willing to grant her a residence permit for 16 years?
AP1 (Applicant): Why should a 13-year-old boy leave his school and his friends because of unclear arguments of the government?
AP1 (Applicant): Why should a seven-year-old boy at school in a special class because he is reading at the level of a 12-year-old leave his school, his friends, his swimming lessons?
AP1 (Applicant): And why should a nearly three-year-old leave his preschool with his first friends?
AP1 (Applicant): Why should these children born in the Netherlands, grown in the Netherlands, leave their country because their government is not there for them?
AP1 (Applicant): Research has been done about the effects of the treatment by the government of their mother.
AP1 (Applicant): The child's best interest did not work for them, was not used for them, when the police broke the front door and took their mother and themselves to the police custody.
AP1 (Applicant): Trauma should not be brought to children by the government and its organs.
AP1 (Applicant): Children should be protected by their government, a necessity according to the Convention on the Rights of the Child.
AP1 (Applicant): Besides, as the Immigrant Council of Ireland writes, sub 2.3, Article 3, Protocol 4 of the Convention
AP1 (Applicant): prohibits the expulsion and exclusion of all nationals.
AP1 (Applicant): And they say it should also be taken into consideration in case a citizen of a state is not expelled by the state, but is confronted with a stark choice between constructive exile by effectively being forced to leave his or her own state to be with his or her family members, or foregoing family life with non-national family members, including spouse and children.
AP1 (Applicant): It has to be taken in consideration as well that it concerns here a former Dutch citizen who is 16 years in the Netherlands, who has a Dutch husband and three Dutch children with no ties in Suriname.
AP1 (Applicant): Yet the Immigrant Council of Ireland argues that in accordance with the law in Article 8 of the Convention is also in accordance with the European law.
AP1 (Applicant): In the case O.S. and L., both the Court of Justice
AP1 (Applicant): and the Advocate General asserted the importance of the dependency of the minor EU citizen on a third country national seeking residence.
AP1 (Applicant): In this case, the Finnish children were not legally or financially or emotionally dependent of their stepfathers.
AP1 (Applicant): They were dependent on their mothers, who were their custodians and who had a permanent residency in Finland.
AP1 (Applicant): Thus, the failure to grant residence permits to the stepfathers would not have compelled the Union to grant a residence permit to the youngest child.
AP1 (Applicant): The youngest child would have to leave the territory of the Union and would be unable to exercise the substance of the rights conferred by his European citizenship.
AP1 (Applicant): Refusing a residence permit to the applicant would therefore constitute an interference that is not in accordance with the law within the meaning of Article 8 paragraph 2 of the Convention.
AP1 (Applicant): Secondly, the applicant shares the view that a third-party intervention by Immigration Council of Ireland that simply require a family predominantly composed of European EU citizens to relocate to a territory elsewhere or outside the EU without giving due considerations to the interests involved could be disproportional and would not meet the test articulated in Zambrano and De Regi of giving effective legal protection to minor EU citizens rights enshrined in Article 20 of the Treaty on the Functioning of the European Union.
AP1 (Applicant): And then if the father would join to Suriname, when would anybody be able to return?
AP1 (Applicant): There will be no income in the Netherlands.
AP1 (Applicant): So how can the children exercise their EU rights?
AP1 (Applicant): The parties memorial should deal in particular with the question, as you quite formulated it, what weight is to be given to the best interest of the applicant's children in assessing whether the refusal to grant the applicant a residence permit and her consequential removal is proportionate for the purpose of Article 8 of the Convention.
AP1 (Applicant): In addressing the question, what weight should be given to the best interest of the children, the applicant has referred to the landmark judgment of your grand chamber in the case of Neulingen and Sjoerhoek concerning the best interest of the child principle.
AP1 (Applicant): In this judgment, the grand chamber noted that there is currently a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interest must be paramount.
AP1 (Applicant): Your grand chamber noted that a child's interest comprises two limbs.
AP1 (Applicant): And we refer to paragraph 136 and 138.
AP1 (Applicant): For example, that a child's ties with its family must be maintained and to ensure its development in a sound environment.
AP1 (Applicant): As was rightly observed in the third party intervention of Defense for Children, the method for determining the best interest of the child combines two of the four essential general principles of the Convention on the Rights of the Child, namely, Article III, best interest of the child shall be a primary consideration in all actions concerning children, and paragraph 6-2, Article 6-2, the rights to development.
AP1 (Applicant): As appears from the judgment in Neulingen and Sjoerhoek and from the general command number 14 of the Committee on the Rights of the Children, the best interest of the children must be assessed on a case-by-case basis.
AP1 (Applicant): The concept of the child's best interest is flexible and adaptable.
AP1 (Applicant): It should be adjusted and defined on an individual basis according to the specific situation of the child or children concerned, taking into account their personal context, situation, and needs.
AP1 (Applicant): For individual decisions, the child's best interest must be assessed and determined in the light of the specific circumstances of the particular child.
AP1 (Applicant): As to the interest of the applicant's children, not only their interest is preserving their family unit and their ties with both their parents, but also their right to private life.
AP1 (Applicant): And their interests, from a personal development perspective, should be addressed and be given due consideration.
AP1 (Applicant): This is particularly true with regard to the applicant's 13-year-old son, Jesse J. Romeo,
AP1 (Applicant): and a nearly eight-year-old son, Joshua Max.
AP1 (Applicant): We refer to the decision in the case Plaza versus Poland.
AP1 (Applicant): As children mature and become, with the passage of time, able to formulate their own opinions, the courts should give due weight also to their views and feelings as well as to their rights to respect for their family life.
AP1 (Applicant): Or Osman versus Denmark.
AP1 (Applicant): Nevertheless, in respecting parental rights, the authorities cannot ignore a child's interest, including its own rights to respect to private and family life.
AP1 (Applicant): The applicant has put forward an expert report from Professor Carl Verboer and her research group of the University of Groningen, as you know.
AP1 (Applicant): This report contains a full assessment of the best interest of the applicant's children, based on the so-called best interest of the child model.
AP1 (Applicant): As appears from the third party intervention of Defense for Children, this model connects the rights from Article 3 and Article 6 of the Convention on the Rights of the Child to each other.
AP1 (Applicant): With this model, it's possible to analyze the best interest of the child in the light of his or her development perspective.
AP1 (Applicant): In this particular case, the government has not made a full assessment of the best interests of the applicant's children, in accordance with Neulingen-Schuruch and a general command number 14, as mentioned.
AP1 (Applicant): It is disturbing to note that the government, in her memorial, paragraph 58, does not acknowledge the roots and links of Dutch children to the Netherlands.
AP1 (Applicant): This is the more inappropriate, since the children's Dutch nationality and their relationship to the Dutch society is part of their identity and their private life.
AP1 (Applicant): In addition, the government has not granted primary consideration to the best interest of the children.
AP1 (Applicant): From paragraph 58 and further in the memorial, it appears that the state has given paramount consideration to its own interest.
AP1 (Applicant): The government holds that there is no objective impediment to exercise a shared family life in Suriname.
AP1 (Applicant): The government further holds that the children are of an adaptable age.
AP1 (Applicant): These considerations, however, cannot be accepted, nor be decisive, without a full and balanced assessment of the relevant interests involved in this case.
AP1 (Applicant): Even if the whole family should leave for Suriname, what perspectives are waiting for the children?
AP1 (Applicant): No home, no job anymore for their father, no income.
AP1 (Applicant): Only debts remain.
AP1 (Applicant): Deterioration of the quality of their education, as Carl Verboer writes.
AP1 (Applicant): Separation from family and friends in the Netherlands.
AP1 (Applicant): As has been stated before, a refusal of a residence permit to the applicant would inevitably lead to a separation between the children and one of their parents.
AP1 (Applicant): With regard to the question as to what weight should be given to the best interest of the children, it's important to realize that the applicant has been in contact with the ministry through their procedures since 1997, all the time.
AP1 (Applicant): Has been registered in the town hall administration as well, all the time.
AP1 (Applicant): It was not before 2010 that the ministry started exedution procedures, 13 years after starting her procedures.
AP1 (Applicant): Like in the Nunez case, paragraph 82, it does not appear that the government fulfilled the interests of swiftness and efficiency of immigration control.
AP1 (Applicant): Or in the Butt case, paragraph 85, it was questionable whether general immigration policy considerations would carry sufficient weight to regard the refusal of residence necessary in a democratic society.
AP1 (Applicant): The applicant also wishes to refer to the circumstances mentioned under paragraph 10 of her memorial.
AP1 (Applicant): First of all, children cannot be held responsible for choices made by their parents.
AP1 (Applicant): Rooting in the Netherlands, eight, Jesse J is 13 years old, his brother, Ashun Max, nearly eight, and their Dutch citizenship.
AP1 (Applicant): There has to be a conservation about their European Union citizenships and their rights under the European Union law.
AP1 (Applicant): Fourth, a fact of the threat of living separated from the mother, and the shocking, stressful, and possibly even traumatic experiences because of the police raiding their home and arresting their mother.
AP1 (Applicant): Far-reaching and dramatic consequences for the children's personal development, their education, and their future perspectives, their private life, and well-being in the case of extradition of their mother.
AP1 (Applicant): And then the inactivity of the government during the procedures that took so many years.
AP1 (Applicant): The applicant has, unlike of the cases, Antwi Nunez Avelo Aponte, no criminal records.
AP1 (Applicant): And the applicant's husband cannot join to Suriname.
AP1 (Applicant): There is furthermore sufficient income, and Mr. Walden has to stay in the Netherlands to provide.
AP1 (Applicant): The residence permit in 97 would have not been a problem if considered.
AP1 (Applicant): References further made to paragraph eight and nine of the applicant's memorial of August on the principle of the best interest of the child, and the convention on the rights of the child, especially the general comment number 14 on the best interest taken as a primary consideration.
AP1 (Applicant): As is said above, why would the decision of Antwi versus Norway be applicable here.
Dean Spielmann (JudgeP): Excuse me, your time has already expired.
Dean Spielmann (JudgeP): May I ask you to conclude?
AP1 (Applicant): Okay. I have one.
AP1 (Applicant): I'm so sorry.
AP1 (Applicant): Well, without a full assessment and fair balancing of all interests, the refusal cannot be considered as necessary in a democratic society. The government did not
AP1 (Applicant): make a full assessment. And nowhere becomes clear why the interest of the State
AP1 (Applicant): outweighs the rights of the applicant's children and their parents, in this case under these various exceptional circumstances. It cannot be said there is a fair
AP1 (Applicant): balance that has been struck. In the applicant's view, the outcome is not proportional
AP1 (Applicant): and not necessary within the meaning of Article 8, paragraph 2 of the Convention, completely not according to the best interests of the children, which should be a primary consideration according to Article 3. And as in the Rodriguez-LaSilva case, if considered,
AP1 (Applicant): a residence permission would have been granted in 1997.
AP1 (Applicant): It is necessary to make a full assessment of all the circumstances and interests involved, especially those of the children. And it is necessary to observe also the
AP1 (Applicant): other conditions for a residence permit, if you want to use a formality to interfere with the right under Article 8 of the Convention. Not to do so is, to our opinion,
AP1 (Applicant): excessive formalistic. If we look at the cases mentioned above and also the other
AP1 (Applicant): cases mentioned in the answers of the question of your Court of 5 August, it cannot be seen that only in cases with exceptional circumstances a professional residence permission visa is not required. And even if that would be true, the case
AP1 (Applicant): of Mrs. Genest shows very exceptional circumstances.
Dean Spielmann (JudgeP): Thank you very much, Miss Later.
Dean Spielmann (JudgeP): I call Miss Egmond.
GR1 (Government): was the decision by the Dutch authorities to refuse Mrs. Schoeness's residence permit
GR1 (Government): because she did not comply with the requirements in accordance with Article 8?
GR1 (Government): That is the question to be answered in this case, and the government of the Netherlands strongly believes that the answer to this question should be affirmative.