FOURTH SECTION
CASE OF PORMES v. THE NETHERLANDS
(Application no. 25402/14)
 
 
JUDGMENT
 
Art 8 • Respect for private life • Denial of residence permit to alien unlawfully staying in host State from an early age, who became recidivist once adult and aware of precarious immigration status • Applicable principles similar to those formulated in cases concerning family life • Applicant neither a “settled migrant”, nor an “alien” aware of his precarious immigration status from the outset • Applicant able to manage by himself in Indonesia despite lack of strong ties there • Adequate balancing exercise by domestic authorities
 
 
STRASBOURG
28 July 2020
 
FINAL
 
14/12/2020
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Pormes v. the Netherlands,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Iulia Antoanella Motoc,
 Carlo Ranzoni,
 Stéphanie Mourou-Vikström,
 Georges Ravarani,
 Jolien Schukking,
 Péter Paczolay, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 25402/14) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Indonesian national, Mr Hein Pormes (“the applicant”), on 27 March 2014;
the decision to give notice of the application to the Dutch Government (“the Government”);
the parties’ observations;
Having deliberated in private on 21 April and 23 June 2020,
Delivers the following judgment, which was adopted on that 
last-mentioned date:
INTRODUCTION
1. In his application, the applicant alleged that the refusal by the national authorities to grant him a residence permit in the Netherlands, where he had been living from a very young age, amounted to a violation of his right to respect for his private and family life as guaranteed by Article 8 of the Convention. THE FACTS
2. The applicant was born in 1987 and lives in Assen. The applicant was represented by Mr B. van Dijk, a lawyer practising in Groningen. 3. The Government were represented by their former Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
the circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was born in Indonesia. His mother was Indonesian; she died in January 1991. On 13 April 1991 the applicant, at the age of almost four, travelled to the Netherlands on an Indonesian passport containing a tourist visa for the Netherlands, together with his presumed father, who was a Dutch national. The local police were notified of his presence in the Netherlands on 13 May 1991. On 18 July 1991 the validity of the tourist visa was extended until 1 August 1991, but the applicant stayed in the Netherlands after that date. His presumed father subsequently returned to Indonesia at frequent intervals, leaving the applicant in the care of a paternal uncle and aunt who were both Dutch nationals. His presumed father died in April 1999. The applicant continued living with the aforementioned aunt and uncle, to whom he refers as foster parents, and he grew up together with their four children. 6. The applicant attended primary and secondary school and completed pre-vocational secondary education (voorbereidend middelbaar beroepsonderwijs) in metal works in 2002/03. At some subsequent point in time he enrolled in culinary school (koksopleiding). 7. On 13 August 2004 the applicant, suspected of having committed an assault on 5 February 2004, agreed to an out-of-court settlement (transactie) involving ten hours of community service. 8. Also in 2004, the applicant’s foster father was informed by a local truant officer that the applicant was required to submit an extract from his registration in the Municipal Personal Records Database (Gemeentelijke Basisadministratie) to his school. It then transpired that the applicant was not registered in that database. The applicant’s presumed half-sister (a daughter from a previous marriage of his presumed father) subsequently found amongst her father’s possessions the applicant’s Indonesian passport that had been issued in 1991. Having thus become aware that he was staying in the Netherlands without a legal status, the applicant, who felt he was a victim of circumstance, started experiencing problems and stress and he took to using drugs for a while. He was unable to concentrate and discontinued the training course in which he was enrolled. 9. On 1 August 2006 the applicant was convicted of indecent assault, defined as a criminal offence in Article 246 of the Criminal Code (Wetboek van Strafrecht; see paragraph 29 below) and four counts of attempted indecent assault, committed in September and October 2005, and he was sentenced to 240 hours’ community service, a twenty-two hour training order and a six-month prison sentence suspended for a probationary period of two years. Four of these offences involved the applicant having followed young women whilst they were cycling, with the aim of making them stop or fall and tolerate him perpetrating lewd acts on them. 10. On 28 September 2006 the applicant applied for a temporary residence permit for the purpose of extended family reunion (verruimde gezinshereniging) with his foster father. He submitted, inter alia, that he had always assumed that he had Dutch nationality. 11. His application was rejected by a decision of the Deputy Minister of Justice (Staatssecretaris van Justitie; “the Deputy Minister”) of 18 December 2007, which was sent to the applicant’s lawyer on 28 December 2007. In response to the applicant’s statement that he had assumed he was a Dutch national, the Deputy Minister noted that the applicant had not submitted any documents to substantiate this alleged Dutch nationality despite having been given the opportunity to do so, and he was therefore to be considered as an alien. The Deputy Minister held, inter alia, that because of the nature and seriousness of the offences he had committed, the applicant constituted a danger to public order, which was a ground for rejecting an application for a residence permit under domestic law (see paragraph 26 below). Next, the Deputy Minister examined whether obligations arising from international agreements nevertheless required that the application for a residence permit be granted (see paragraph 27 below). To the extent that it had to be assumed that family life within the meaning of Article 8 of the Convention existed between the applicant and his uncle, the Deputy Minister considered that the refusal to allow the applicant to reside in the Netherlands did not entail divesting him of any residence permit that had enabled him to enjoy family life in the Netherlands. It had, moreover, not appeared that there were any facts or circumstances of such seriousness that the right to respect for family life entailed a positive obligation on the part of the State to admit the applicant. The Deputy Minister noted that the applicant had been living in the Netherlands since he was four years old and that it had been argued that he was completely integrated into Dutch society; however, no rights could be derived from a period of residence without a residence permit. 12. The applicant lodged an objection (bezwaar). 13. On 27 June 2008 the applicant was convicted of two counts of indecent assault and three counts of attempted indecent assault, committed in May, November and December 2007, and was sentenced to fifteen months’ imprisonment, of which five months were suspended for a probationary period of two years. Four of these offences involved the applicant having followed young women whilst they were cycling and making them stop or fall, or attempting to do so, in order to perpetrate lewd acts on them. In addition, the execution of the six-month suspended prison sentence imposed on 1 August 2006 (see paragraph 9 above) was ordered. 14. After a hearing before an official board of inquiry (ambtelijke hoorcommissie) on 22 May 2008, the applicant’s objection against the refusal of his application for a residence permit was rejected by the Deputy Minister on 17 July 2008. 15. The Deputy Minister firstly observed that the applicant had once again been convicted (see paragraph 13 above); the grounds for rejecting the application for a residence permit thus pertained. As for the applicant’s claims under Article 8 of the Convention, the Deputy Minister maintained her previous position. In that context she considered it decisive that the applicant had never been lawfully resident in the Netherlands. His presumed biological father or his foster parents ought to have ensured that the applicant obtained lawful residence after his arrival in the Netherlands; this responsibility could not be passed on to the national authorities. Given that an application for a tourist visa had been made prior to the applicant’s arrival, the Deputy Minister failed to see how the presumed biological father or the foster parents could not have realised that the applicant was not a Dutch national. 16. When it came to balancing the interests at stake, the Deputy Minister attached decisive importance to the nature and seriousness of the offences which the applicant had repeatedly committed; the interest in the protection of public order therefore outweighed the applicant’s interest in being able to enjoy family and private life in the Netherlands. According to the Deputy Minister, there was no objective impediment to family life being continued in Indonesia. Holding, moreover, that the applicant was an adult who should be considered capable of managing by himself in his country of origin, the Deputy Minister found no indications that he had more than the usual dependence on, and emotional ties with, his foster parents. The fact that the applicant might experience certain problems in adapting to life in Indonesia, where he had no family and did not speak the language, was not considered an unacceptable consequence of the decision. In any event, contact between the applicant and his foster parents need not be ruptured as the latter could visit him in Indonesia. 17. On 21 July 2008 the applicant lodged an appeal with the Regional Court of The Hague, sitting in Zwolle. In support of his appeal he submitted, inter alia, school reports and certificates to the effect that he had successfully participated in various sporting activities, a traffic examination and a first-aid course. 18. On 5 February 2009 the applicant submitted an application under the Kingdom Act on Netherlands Nationality (Rijkswet op het Nederlanderschap) to the Regional Court of The Hague for an order confirming that, as from his birth, he had been in possession of Dutch nationality. 19. The Regional Court of The Hague, sitting in Zwolle, decided on 10 February 2009 to adjourn the proceedings on the appeal against the refusal to grant the applicant a residence permit until his request for confirmation of Dutch nationality had been decided. 20. On 14 February 2011 the Regional Court of The Hague rejected the application for an order confirming that the applicant had acquired Dutch nationality at birth. Having established that the applicant’s mother and his presumed biological father had not been married to each other at the time of the applicant’s birth, and noting further that they had not married subsequently either but that the applicant’s presumed father had married another woman on 4 March 1988 and that the applicant had not been registered as a child of the presumed father on the latter’s personal record card (persoonskaart), the Regional Court found that it had not been satisfactorily demonstrated that he had obtained Dutch nationality at birth through descent from a Dutch father. 21. While the applicant’s main address was still with his foster parents, he also started living with another uncle in a different part of the country, where it was possible for him to carry out unpaid, non-commercial activities in order to establish some structure to his days. The case file does not disclose when he moved there, but according to an email from his foster father to his lawyer dated 7 June 2011, the applicant had done so “recently”. 22. The applicant’s appeal against the decision to refuse him a residence permit was upheld by the Regional Court of The Hague, sitting in Zwolle, on 30 January 2012. It found, firstly, that it was not in dispute that there was family life within the meaning of Article 8 of the Convention between the applicant and his foster parents. Next, it noted that the case did not concern an interference within the meaning of Article 8 § 2 of the Convention since the applicant had not been divested of a residence permit which had enabled him to enjoy private or family life in the Netherlands. That being the case, it followed from the established case-law of the European Court of Human Rights that a balancing of interests was to be conducted in order to assess whether, in the concrete circumstances of the case, the right to respect for family life within the meaning of Article 8 nevertheless entailed a positive obligation on the part of the State to allow the applicant to remain in the country. The Regional Court considered that the Deputy Minister’s decision did not demonstrate that an express and transparent balancing exercise between all the interests at stake had been conducted. It noted that the Deputy Minister had summarily reasoned that what was decisive was that the applicant constituted a danger to public order and that he had never held a residence permit enabling him to enjoy family life in the Netherlands, without indicating in a careful and sufficiently transparent manner what weight was to be attached to the circumstances that the applicant had grown up in the Netherlands, had received his schooling in that country and had built up his social, cultural and family ties there. 23. The Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) lodged a further appeal against the ruling of the Regional Court. This further appeal was upheld by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), which, in a ruling of 13 November 2013, held as follows, in so far as relevant:
“2.3  From the case-law of the [European Court of Human Rights] – inter alia, the judgments in Rodrigues da Silva and Hoogkamer v. the Netherlands [no. 50435/99, ECHR 2006-I], Osman v. Denmark [no. 38058/09, 14 June 2011], Nunez v. Norway [no. 55597/09, 28 June 2011], and Butt v. Norway [no. 47017/09, 4 December 2012] – and the case-law of the Administrative Jurisdiction Division ... it follows that in the balancing exercise within the framework of the right to respect for private and family life as protected by Article 8 of the European Convention on Human Rights a fair balance must be found between the interest of the alien concerned and his or her family on the one hand and the Dutch general interest served by the pursuance of a restrictive immigration policy on the other hand. To that end, it must be shown that all facts and circumstances that are of relevance to that balancing exercise have been taken into account. As can be deduced from the Butt judgment, strong immigration policy considerations in principle militate in favour of identifying children with the conduct of their parents, given the risk that parents exploit the situation of their children in order to secure a residence permit for themselves. If either the alien concerned or his or her parents could – or should – have been aware that the alien’s immigration status was precarious, it is only in exceptional circumstances that there will be cause to conclude that Article 8 of the Convention imposes an obligation to allow the continuation of private and/or family life.
2.4  In accordance with paragraph B2/10.2.3.1. of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000), as in force at the relevant time and in so far as relevant, the principles set out in the Court’s judgments in Boultif v. Switzerland [no. 54273/00, ECHR 2001-IX] and Üner v. the Netherlands [[GC], no. 46410/99, ECHR 2006-XII] must be included in the balancing exercise when public order aspects are involved in the refusal to grant – continued – residence. ...
2.5  Even though, having regard to the age at which he came to the Netherlands and the duration of his stay in the country, the alien must be considered to have very strong ties with the Netherlands, the Deputy Minister has – not incorrectly and with adequate reasoning – taken the view that Article 8 of the Convention does not entail a positive obligation on the State of the Netherlands to allow the alien to reside in the country. The following is relevant in this context. The private life and the family life, respectively, of the alien were created at a time when his foster parents – whose actions or omissions may in principle be held against the alien, having regard to paragraph 2.3 above – were aware, or ought to have been aware, that his immigration status was precarious. Nevertheless, since, as is not in dispute, the immigration status of the foster parents does not depend on the right of residence of the alien, this does not constitute a decisive element in the balancing exercise that is to be conducted. In the balancing exercise carried out in the context of Article 8 of the Convention, the Deputy Minister has not made an error of assessment in attaching great weight to the offences committed by the alien. By a judgment of a criminal court of 1 August 2006 the alien was convicted of having committed on multiple occasions the offence set out in Article 246 of the Criminal Code or of attempting to commit that offence, and he was sentenced to a six-month suspended prison sentence. By a judgment of 27 June 2008 the execution of that prison sentence was ordered, and the alien was convicted and sentenced to fifteen months’ imprisonment, of which five months were suspended. The Deputy Minister was not wrong to take account of both the seriousness and the nature of these offences, as well as of the fact that the alien is a recidivist and that, when he committed the offences, the alien was aware that he did not have a residence permit. Having regard to the case-law of the Court (inter alia, Balogun v. the United Kingdom [no. 60286/09, 10 April 2012]), it is moreover relevant that the alien was an adult when he committed the aforementioned offences. The Deputy Minister was furthermore entitled to attach relevance to the fact that the alien is an adult and that he has not substantiated that there are more than the normal emotional ties between his foster parents and himself. In addition, in her assessment the Deputy Minister was entitled to take into account the fact that there is no objective impediment for the alien to enjoy family life with his foster parents in Indonesia and that – even though the circumstances that he does not have any family in Indonesia at the present time and does not know the language spoken there may lead to problems of adjustment – he should be considered, given that he is of adult age, capable of managing by himself in that country.”
24. The Administrative Jurisdiction Division therefore quashed the decision of the Regional Court and itself dismissed the appeal which the applicant had lodged with the Regional Court. Developments after the introduction of the application
25. On 1 August 2016 the applicant left the Netherlands for Indonesia with assistance from the International Organization for Migration (IOM). Just prior to his departure, at Amsterdam Schiphol Airport, he signed an IOM departure declaration, by which he agreed to the discontinuation of any pending proceedings aimed at obtaining a residence permit (beëindiging van nog openstaande verblijfsrechtelijke procedures). RELEVANT LEGAL FRAMEWORK
immigration law
26. Pursuant to section 16(1)(d) of the Aliens Act 2000 (Vreemdelingenwet 2000), an application for a temporary residence permit may be rejected if the alien poses a threat to public order or national security. An alien is considered to constitute a threat to public order if, inter alia, he or she has been convicted of a crime (misdrijf) and has been sentenced to an unsuspended term of imprisonment or if he or she has agreed to an out-of-court settlement in relation to a crime (section 3.77(1)(c) of the Aliens Decree 2000 (Vreemdelingenbesluit 2000)). 27. Section 13 of the Aliens Act 2000 states that aliens may qualify for admission to the Netherlands on the basis of obligations arising from international agreements. Respect for private and/or family life, as enshrined in Article 8 of the Convention, constitutes such an obligation. 28. Section B2/10.1. of the Aliens Act 2000 Implementation Guidelines as in force at the relevant time provided that, before the refusal of an application for a residence permit for the purpose of family reunion or family formation, an assessment was to be carried out as to whether such a refusal would be compatible with the right to respect for private and family life as guaranteed by Article 8 of the Convention. Section B2/10.2.2. specified that, in general, the decision to refuse a residence permit to an alien who had not previously held one was not considered to amount to interference with his or her right to respect for family or private life, even if the alien had in fact already been staying in the Netherlands for some time and had been enjoying family and/or private life there. If an alien had started enjoying family life during a time when no residence permit had been required or pending a decision on an application for a residence permit, he or she had done so at his or her own risk and in the knowledge that he or she might subsequently have to leave the Netherlands. In such cases the national authorities had not expressly consented – by means of the granting of a residence permit – to that alien’s continuous stay in the Netherlands, such as to enable him or her to enjoy family life there. Whilst in such a situation a balancing exercise between the interests of the State and those of the alien should nevertheless be carried out, the fact that an alien had never previously been lawfully resident would be a factor counting against him or her.
criminal law
29. Article 246 of the Criminal Code reads as follows:
“Any person who, by an act of violence or any other act or by threat of violence or threat of any other act, compels another person to engage in or to tolerate lewd acts, shall be guilty of indecent assault and shall be liable to a term of imprisonment not exceeding eight years or a fine of the fifth category.”
THE LAW
THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
30. The Government requested the Court to strike the application out of its list of cases given that the applicant had left the Netherlands of his own volition and had agreed to end all pending proceedings aimed at obtaining a residence permit in the Netherlands. 31. The applicant submitted that he had not genuinely wanted to leave the Netherlands but had felt in despair at not being able to participate in society. He had been presented with the IOM departure declaration just prior to his departure to Indonesia and had signed it in order to qualify for that organisation’s financial assistance; he had had no intention, however, of discontinuing the present proceedings. 32. The Court considers that this issue falls to be examined in the light of Article 37 § 1 of the Convention, which reads as follows in so far as relevant:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a)  the applicant does not intend to pursue his application; or
(b)  the matter has been resolved; or
(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application. However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
33. Article 37 § 1 (a) of the Convention covers the situation where the applicant wishes to withdraw his or her application. While it is true that an applicant’s undertaking to withdraw from proceedings which he or she has initiated before the Court is capable of justifying the striking out of that application, in accordance with Article 37 § 1 of the Convention, such a waiver, in order to be valid, must be unequivocal (see Association SOS Attentats and de Boery v. France (dec.) [GC], no. 76642/01, § 30, ECHR 2006‑XIV). 34. The Court observes that in the IOM departure declaration signed by the applicant he agreed to the discontinuation of “any pending proceedings aimed at obtaining a residence permit” (see paragraph 25 above). It is not immediately apparent to the Court that the terms of this agreement cover the present proceedings. The Court accepts that the applicant’s ultimate aim in lodging an application under Article 34 of the Convention will have been for the Dutch authorities to allow him to reside in the Netherlands by granting him a residence permit. However, his application to the Court, in which he complained of a violation of his right to respect for his private and family life as guaranteed by Article 8 of the Convention, cannot be equated with an application for a residence permit. Firstly, neither Article 8 nor any other provision of the Convention and its Protocols guarantees, as such, a right to a residence permit (see Bonger v. the Netherlands (dec.), no. 10154/04, 15 September 2005). Moreover, in accordance with Article 19 of the Convention, the only task of the Court is to ensure the observance of the obligations undertaken by the Parties in the Convention. When the Court concludes that a State has breached the Convention, that State is in principle free to choose the means whereby it will comply with the Court’s judgment (see, amongst other authorities, Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 80, ECHR 2014). Accordingly, the Court does not have the power to direct that a residence permit be issued to an applicant.
35.

Outcome for Article 8: no_violation