TrustHLT/LaCour huggingface dataset:
GR1 (Government): And I emphasize that obliged in this context means that the Union citizen has no other choice than to leave the territory of the EU.
GR1 (Government): And if the Union citizen involved is not forced to leave the EU, then there are no rights under Article 20.
GR1 (Government): Now, as to the role of Article 8 of the convention in this discussion, we observe the following.
GR1 (Government): The post-Zambrano case law makes clear that the right to protection of family life as such is not protected by Article 20 TFEU.
GR1 (Government): The ECJ has observed that the mere desirability of keeping a family together is not sufficient to conclude that the Union citizen is forced to leave the EU.
GR1 (Government): In other words, only where the third country national's residence is essential to ensure that the Union citizen is not forced to leave the EU must that third country national family member be granted residence.
GR1 (Government): Now, does this mean that the right to protection of family life is irrelevant?
GR1 (Government): No, not at all.
GR1 (Government): The ECJ has made clear that this right may play a role, but not under Article 20 TFEU, but by other national provisions or international law, such as Article 8 of the convention.
GR1 (Government): And this brings me back to the facts of this case.
GR1 (Government): Is the Zambrano test satisfied in this case?
GR1 (Government): And are the children forced to leave the EU in case their mother is not granted a residence permit?
GR1 (Government): The short answer is no.
GR1 (Government): There is no evidence that the children are forced to leave the EU.
GR1 (Government): The children have Dutch nationality and may stay in the Netherlands.
GR1 (Government): The father has Dutch nationality and could care for them.
GR1 (Government): There is no evidence that the children are completely dependent upon the applicant's exclusive care.
GR1 (Government): And therefore, the Zambrano exception does not come into play.
GR1 (Government): The mere desire to jointly enjoy family life within the EU does not give rights under Article 20.
GR1 (Government): Now, Mr. President, we would observe
GR1 (Government): that the question of a review in the light of EU law does not arise in the present proceedings before the court.
GR1 (Government): But be that as it may, we are of the opinion that the Zambrano ruling could and should not be given a broad interpretation.
GR1 (Government): The Zambrano case is exceptional and does not create an unrestricted right for third country family members to claim rights of residence in the EU.
GR1 (Government): A broad interpretation would have the undesirable effect that the scope of EU law would be affected and would go against the ECJ's case law.
GR1 (Government): Now, lastly, with regard to the applicant's claims for just satisfaction, we would simply refer to what has been said in the written observations on this issue.
GR1 (Government): And we would only draw your attention to the applicant's submission that a short trip to Disneyland Paris would be sufficient just satisfaction for non-pecuniary damage.
GR1 (Government): We find that somewhat surprising and wonder how appropriate it is to request for a trip to Disneyland in the light of the seriousness of the alleged violations as stated by the applicant.
GR1 (Government): But we will leave it to the court to decide upon this should that be necessary.
GR1 (Government): thank you for your attention.
Dean Spielmann (JudgeP): Thank you Mrs. Egmond.
Dean Spielmann (JudgeP): Are there any questions from the judges? Judge Power.
Ann Power-Forde (Judge): I have one question for the government and one question for the applicant.
Ann Power-Forde (Judge): To the government, you have explained and attempted to distinguish the Zambrano principle as it arises in this case.
Ann Power-Forde (Judge): But I would like you to comment on a submission made by the Immigrant Council of Ireland as to what effective legal protection actually requires.
Ann Power-Forde (Judge): Effective legal protection.
Ann Power-Forde (Judge): And you will see from their submissions that they deal with this under the heading of administrative and judicial decision-making bodies.
Ann Power-Forde (Judge): The submission is that if national authorities suggest that the family may move elsewhere in the EU or are not actually forced to leave the territory of the EU, then the law would require and would expect that the decision-making bodies adverted to this possible solution and to have adduced evidence as to its practicality, its feasibility and its proportionality for any particular member.
Ann Power-Forde (Judge): And I would ask the government, firstly, to comment on that submission, and secondly, to show where in the administrative and judicial decisions the practicality, feasibility and proportionality of a move or either within the territory has been made.
Ann Power-Forde (Judge): And I would just draw attention to the fact that in the domestic decision of the court dated 8 December 2009, that's the regional court of The Hague sitting in Harlem, reference is made to EU law, but not to the possibility of moving within the territory, but rather to the fact that there's no obligation on the family, on the citizens to leave, EU citizens to leave, because the children could always stay in the Netherlands alone with their father.
Ann Power-Forde (Judge): And if that alternative is to be submitted, is to be relied upon, then how would that not in fact result in a constructive interference with family life, with an interference in that the family would be broken up?
Ann Power-Forde (Judge): That's the question that I would put to the government.
Ann Power-Forde (Judge): To the applicant, the case, as I understand it, is mainly pleaded in terms of an interference or a failure to comply with the positive obligations insofar as the applicant's family life is concerned.
Ann Power-Forde (Judge): And very little is made in terms of the claim under Article 8 to private life.
Ann Power-Forde (Judge): Now, this court in a number of judgments has elected to examine both aspects, and I would like the applicants to comment on the private life of the applicant and to what extent identity as the mother of Dutch children forms part of the applicant's private life.
Ann Power-Forde (Judge): So the applicant's identity as the mother of Dutch children, to what extent does that touch upon the applicant's private life?
Dean Spielmann (JudgeP): Thank you Judge Power-Forde. Judge López Guerra, please.
Luis López Guerra (Judge): I'd like to make two factual questions to both the applicant and the government.
Luis López Guerra (Judge): It seems that the reason for the denial of the residence to the applicant was the lack of a provisional residence visa.
Luis López Guerra (Judge): This provisional residence visa has to be applied for in the country of origin of the applicant, that is in Suriname.
Luis López Guerra (Judge): So if the regular proceedings were followed, the applicant should go back to Suriname, then apply, they should apply them for this provisional residence visa in order to be able to go back to the Netherlands.
Luis López Guerra (Judge): Now my questions are, first, if the applicant would do that, would go back to Suriname and ask for a provisional residence visa, first, what would be the criteria followed by the government to allow or not to allow this provisional visa?
Luis López Guerra (Judge): Secondly, if up to the point you can answer to that, what are the perspectives of getting this permission, this provisional residence visa?
Luis López Guerra (Judge): And finally, how much time would it be needed for these proceedings?
Luis López Guerra (Judge): I mean, how much time would it take from asking the provisional residence visa and then to get the response by the government?
Dean Spielmann (JudgeP): Thank you, Judge López Guerra, Judge Ineta Ziemele.
Ineta Ziemele (Judge): I have a question to the applicant and a question to the government, and it equally goes back to the facts of the case.
Ineta Ziemele (Judge): The parties have pleaded in front of the court the principle of the best interests of the child.
Ineta Ziemele (Judge): And to the applicant, I would like to know, in the set of proceedings that the applicant has initiated in the Netherlands with the view of obtaining the residence permit, in what manner and with what arguments did the applicant reason the best interests of the child, apart from the evident fact of the Dutch nationality of the children, what other arguments were advanced as concerns the need to protect the best interests of the child, and maybe in which of the numerous proceedings?
Ineta Ziemele (Judge): And the question to the government in the same context.
Ineta Ziemele (Judge): The government, in its observations, written observations and oral submissions, especially in paragraph 67 in your written memorial, you have mentioned several arguments showing that there was the best interests of the children have been taken into consideration.
Ineta Ziemele (Judge): Again, a factual question.
Ineta Ziemele (Judge): Are these the government's arguments in paragraph 67, or were these exactly the words, the reasoning used by the domestic courts or the administrative authorities?
Ineta Ziemele (Judge): If so, could you point to the court, could you direct the court to these judgments, decisions where exactly in the same manner the best interests of the child have been assessed and balanced in the proceedings?
Dean Spielmann (JudgeP): Thank you, Judge Ziemele and Judge Vincent De Gaetano.
Vincent A. De Gaetano (Judge): Two questions to clarify certain facts, if I may.
Vincent A. De Gaetano (Judge): They are mainly directed towards the government, but perhaps even the counsel for the applicant can refer to them.
Vincent A. De Gaetano (Judge): If I remember correctly, if I understood correctly, counsel for the government said that the husband's criminal record is no obstacle to him entering and settling in Suriname.
Vincent A. De Gaetano (Judge): In view of the fact that, as far as I can understand, the husband has lost Surinamese nationality and the criminal record referred to something which was not really trivial, could government elaborate on that?
Vincent A. De Gaetano (Judge): The second question is, apart from the repeated applications for residence, what exactly were the reasons or the reason why it took so long for the government to actually take action to expel applicant from Dutch territory?
Dean Spielmann (JudgeP): Thank you, Judge De Gaetano. Are there any... Judge Silvis?
Johannes Silvis (Judge): I have a question for the representative of the applicant.
Johannes Silvis (Judge): On page 10 of your written submissions, you state that in the context of immigration cases, children carry no responsibility for choices made by parents.
Johannes Silvis (Judge): And in order to underline this position, referral is made to three cases of our court.
Johannes Silvis (Judge): First, the Nunez case, in which deportation and exclusion orders would effectively result in a mother guilty of immigration law breaches being separated from her young children for two years.
Johannes Silvis (Judge): Second, the case of Mubilanzila Mayeka and Kaniki Mitunga, which concerns detention and deportation of a five-year-old child without her family.
Johannes Silvis (Judge): And third, Osman versus Denmark.
Johannes Silvis (Judge): You mentioned this case also in your oral submissions today, in which refusal to renew residence permit of a minor who had been sent abroad against her will is the case.
Johannes Silvis (Judge): All of these cases concern a situation in which not finding a violation would result necessarily in accepting a breach of family life.
Johannes Silvis (Judge): And it would therefore need further explanation as to how this case law would support the applicant seeking a permanent residence in the Netherlands.
Johannes Silvis (Judge): Do you think this case law is also relevant in case the refusal to give permanent residence to your client would not necessarily lead to a separation, a rupture of the family?
Dean Spielmann (JudgeP): Thank you, Judge Silvis.
Dean Spielmann (JudgeP): Judge Kalaydjieva.
Zdravka Kalaydjieva (Judge): I have a question to the government, and it is related to the questions of judges and Power-Forde, and in a dissimilar.
Zdravka Kalaydjieva (Judge): The government is, as far as I understand, submitting that, first of all, acknowledging that Article 8 rights are under considerations in the present case.
Zdravka Kalaydjieva (Judge): They are also submitting that the Dutch government have not overstepped their margin of appreciation in examining this case, and that Article 8 issues have been thoroughly considered by the national authorities, whether you refer to the courts or the minister in deciding the applicant's case appears not to be quite clear, as their reasoning in the several accounts of applications seem to vary.
Zdravka Kalaydjieva (Judge): But as a whole, from your submissions during the hearing today, it seems that you're saying that the consideration of Article 8 rights was already accepted as one involving a potential risk of alternative interference with Article 8 rights in both cases, whether the applicant should be separated from her family or whether it would result, a decision negative to the interests of the applicant would result in sending four Dutch citizens, including three children, to a country outside the territory where they were born and brought up.
Zdravka Kalaydjieva (Judge): Do you see this as a matter of inevitable result as in view of the necessity to protect the public interests and the community interests?
Zdravka Kalaydjieva (Judge): I would like the government to provide us with more information or views whether this is the manner in which they see that the potential interference with Article 8 rights has been thoroughly considered in your opinion.
Dean Spielmann (JudgeP): Thank you, Judge Kalaydjieva, Judge Šikuta.
Ján Šikuta (Judge): Thank you, Mr. President.
Ján Šikuta (Judge): I do have one concrete question to the applicant.
Ján Šikuta (Judge): According to the chronology of events list we do have at our disposal in our files, it seems that the applicant, for the very first time, applied for a tourist visa to Netherlands on 19th of February 91.
Ján Šikuta (Judge): But her partner left to Netherlands at the end of October 91.
Ján Šikuta (Judge): So it was more than half a year before the partner left, and much more before they got married and had children.
Ján Šikuta (Judge): So my concrete question is, what was the reason for the applicant to apply for tourist visa in February 91?
Dean Spielmann (JudgeP): Thank you, Judge Šikuta, Judge Gyulumyan.
Alvina Gyulumyan (Judge): My question is for both parties.
Alvina Gyulumyan (Judge): At that time when applicant entered into Netherlands in 1997, the regulations in force did not require her to have obtained a provisional visa in Suriname before applying for a residence in the Netherlands.
Alvina Gyulumyan (Judge): Why that law is not applicable in this case?
Dean Spielmann (JudgeP): Well, we will have a break now for, let's say, 15 minutes.
Dean Spielmann (JudgeP): And we will resume our hearing accordingly in the quarter to 11.
Dean Spielmann (JudgeP): So, the hearing is suspended.
Dean Spielmann (JudgeP): Mr. Later, please.
Dean Spielmann (JudgeP): Ah.
Dean Spielmann (JudgeP): Mr. Eertink.
AP2 (Applicant): Thank you very much, Mr. President.
AP2 (Applicant): In answer to the question of the Honorable Judge of Ireland, the applicant wishes to answer as follows.
AP2 (Applicant): Nationality can be considered part of someone's identity and therefore be part of private life.
AP2 (Applicant): Being a mother can as well form part of someone's identity and therefore as well be part of private life.
AP2 (Applicant): In this case, the identity as a mother is therefore relevant and part of her private life.
AP2 (Applicant): In answer to the question of the Honorable Judge of Malta, the applicant wishes to answer as following.
AP2 (Applicant): Although a criminal record could in general perhaps not be an impediment to moving to Suriname, the question remains however whether access to Suriname would be obtained for this predominantly of Dutch citizens composed family with at that time no income because it has been argued by the applicant that if the whole family were to move to Suriname, this would mean that the father would lose his job and income.
AP2 (Applicant): In answer to the question of the Honorable Judge of the Netherlands, the applicant wishes to answer as following.
AP2 (Applicant): The case law was merely used to underline a principle which the applicant wished to put forward, this principle being the principle as also laid down in the Convention on the Rights of the Child that a child cannot be held responsible for choices made by their parents.
AP2 (Applicant): The case law was merely an instruction, an illustration of this principle and in the applicant's view this principle should apply as well in this case.
AP2 (Applicant): I would like to ask my colleague Ms. Latter to answer questions that are more of a factual
AP2 (Applicant): nature.
Dean Spielmann (JudgeP): Thank you, Mr. Eertink, Mrs. Later-
AP1 (Applicant): I want to say something about, I think it's the Honorable Church from Latvia asked me about the rights of the child in the procedure.
AP1 (Applicant): I have, if we look at the procedure that started on 23rd of January, 2007, I have pleaded, all in the procedure is always a lot written about the interests of the child and I have invoked Article 9, Article 3, Article 4, Article 8 in conjunction with the Stapita case, Article 9, and there are very many different factual information in that case and also what the interests of the father are and what our advice committee for strangers cases said.
AP1 (Applicant): And everywhere in the procedure that's going on and in the next procedure that started on 26th September, 2007, I started a very urgent request to the ministry for my clients, both parents and the children and all the arguments about people who could take care of the children, also the psychiatric background from members of the family is explicitly mentioned there and we have put the obligation, the interest of the state and the interest of the children and the family behind each other and actually since then in all the papers we have been talking about the interest of the child in where the father had to be here to provide the income and there's no possibilities of family members in the country of origin of my client, her brother who has presonile dementia and is not on one place and a sister who's not on one place and probably psychiatric problems too, there's no contact.
AP1 (Applicant): That's the background where the people would go to.
AP1 (Applicant): And the school is mentioned in the case that was pending in 2009.
AP1 (Applicant): We have spoken about all the different sides of the children, article two of the children's convention.
AP1 (Applicant): I have done a lot concerning the interest of the child in the file.
AP1 (Applicant): I hope it's so short so I haven't been able to write everything down exactly.
AP1 (Applicant): The honorable judge from Slovakia I think asked a request about a visa.
AP1 (Applicant): My client and her now husband requested at the same time for a visa.
AP1 (Applicant): He asked a visa with his Dutch father and she asked a visa with her sister being in the Netherlands and I don't know, maybe Dutch nationality, the division between members of family after the takeover in 75.
AP1 (Applicant): When you do a request for a tourist visa, it takes many, many months to decide.
AP1 (Applicant): And it was about same time when her now husband got a positive decision and she got a negative decision.
AP1 (Applicant): I remember she asked a visa to stay with her sister and she asked later on a visa to stay with her father-in-law.
AP1 (Applicant): And then her father-in-law, Mr. Walden's father,
AP1 (Applicant): was interviewed by the police and the police wrongly wrote down that the applicant's father-in-law was a cousin or an uncle.
AP1 (Applicant): That was wrongly written down because it was her father-in-law.
AP1 (Applicant): And to answer something what the government said, we've always been discussing all these procedures around a visa.
AP1 (Applicant): In that time, in 97, if you ask for a tourist visa, as someone from Surinamese background, you came here and you applied for a residence permission, there was no problem.
AP1 (Applicant): So that was very normal to do so.
AP1 (Applicant): And the claim that she never appealed, yeah, if you are in Suriname, it is really difficult to understand that you can appeal and where can you appeal.
AP1 (Applicant): So that is...
AP1 (Applicant): You have more?
AP1 (Applicant): Huh?
AP1 (Applicant): I think I've asked the question about best interest.
AP1 (Applicant): I hope I can say.
AP1 (Applicant): Yeah?
AP1 (Applicant): Did you answer all the questions?
AP1 (Applicant): Well, about, yeah, the last question about professional residence visa, I don't know whether it was a question for us, but we had this professional residence visa all the time.
AP1 (Applicant): And I remember that through that jurisprudence for the law that was valuable in 82, we finally fought out in the courts that if the people were fulfilling all the conditions, then there was no reason not to get a residence permission because of the lack of a professional residence visa.
AP1 (Applicant): That's why I made in my pleading note in the beginning the different arguments for a residence permission, and they fulfilled every argument.
AP1 (Applicant): So in 97, normally, if they would have looked at the case itself, there would have been granted a residence permit.
AP1 (Applicant): In the law between 94 and 2001, the same, the aliens law, the same thing happened.
AP1 (Applicant): Later on, under the law that's now applicable since the 1st of March, 2001, the government takes a very harsh point of view and says no, no resident, no, no professional residence visa, finish.
AP1 (Applicant): And I think that's not correct if you look at the rights of the child and Article 8 as we have been pleading here.
GR1 (Government): First, I would like to go into the questions from the court.
GR1 (Government): And then afterwards, if time permits, I have a few points in reply to the applicant's submissions.
GR1 (Government): Regarding Judge Power's question relating to ICI's third party intervention, we believe that ICI misinterprets ECJ's court's case law.
GR1 (Government): As stated before, the Zambrano test focuses on the question whether the EU citizen involved would be obliged to give up residence in the EU if the non-EU national were to be removed from the EU.
GR1 (Government): In other words, the Zambrano test does not create a general right of family life within the EU.
GR1 (Government): And as to the present case, if the children have no other choice than to leave the EU territory, then they can claim rights under Article 20.
GR1 (Government): But the children are not completely dependent upon the applicant, and they can stay in the Netherlands as they are Dutch nationals.
GR1 (Government): And their father can take care of them.
GR1 (Government): Judge Lopez-Guerra's question was, what are the criteria to obtain a residence permit?
GR1 (Government): Now, in reply, we would answer that, first of all, I would like to point out that the same requirements have to be met when filing a request for a provisional residence visa in Suriname compared to filing a request for a permanent residence visa in the Netherlands.
GR1 (Government): And the requirements include an income requirement, a civic integration requirement, and a valid passport and documents regarding the marriage, for example.
GR1 (Government): And then a full assessment is made of Article 8 of the convention.
GR1 (Government): And a decision is taken within the statutory decision period of 90 days.