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Akhtar, Johangir and Johangir v. The Netherlands

Publisher Council of Europe: European Commission on Human Rights
Publication Date 7 April 1993
Citation / Document Symbol No. 14852/89
Cite as Akhtar, Johangir and Johangir v. The Netherlands, No. 14852/89, Council of Europe: European Commission on Human Rights, 7 April 1993, available at: http://www.refworld.org/docid/3ae6b69718.html [accessed 18 September 2014]
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EUROPEAN COMMISSION OF HUMAN RIGHTS

AS TO THE ADMISSIBILITY OF
Application of AKHTAR AND JOHANGIR v. THE NETHERLANDS

REF. NO:

ORIGIN: COMMISSION

TYPE: DECISION

PUBLICATION:

TITLE: AKHTAR AND JOHANGIR v. THE NETHERLANDS

APPLICATION NO.: 14852/89

NATIONALITY: Dutch ; Pakistani ; Pakistani

REPRESENTED BY: CAARLS, G., lawyer, Amsterdam

RESPONDENT: Netherlands

DATE OF INTRODUCTION: 19890116

DATE OF DECISION: 19930407

APPLICABILITY:

CONCLUSION: Under Article 29 rejects the remaining part of the application

ARTICLES: 8

RULES OF PROCEDURE:

LAW AT ISSUE:

STRASBOURG CASE-LAW:

No. 11278/84, Dec. 1.7.85, D.R. 43, p. 216

AS TO THE ADMISSIBILITY OF

Application No. 14852/89 by Mohammad Johangir AKHTAR, Asad JOHANGIR, and Saqib JOHANGIR against the Netherlands

The European Commission of Human Rights sitting in private on 7 April 1993, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

SirBasil HALL

MM.F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr.M. de SALVIA, Deputy Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 January 1989 by Mohammad Johangir AKHTAR, Asad JOHANGIR and Saqib JOHANGIR against the Netherlands and registered on 31 March 1989 under file No. 14852/89;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant, M.J. Akhtar, born in 1945, is a naturalised Dutch citizen and resides in Zaandam, the Netherlands. The second and third applicants, A. and S. Johangir are his sons. They are Pakistani citizens, born on respectively 16 June 1967 and 5 September 1974, and reside in Jhelum, Pakistan. Before the Commission, the applicants are represented by Mr. G. Caarls, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the parties, may be

summarised as follows.

According to the first applicant, his first wife S. Begum, whom he married in Pakistan in 1962, died in 1977. Out of this marriage three children were born in 1964, 1967 (the second applicant) and 1974 (the third applicant). Until 1979 the applicants lived together with the first applicant's father, the first applicant's brother, the latter's wife and their five children, in one house in Pakistan.

In 1979, the first applicant went to the Netherlands, where he resided illegally until his expulsion to Pakistan on 2 December 1981. In the course of 1982 he returned to the Netherlands. On 13 September 1982 he married a Dutch woman, who already had three children from a previous marriage. This marriage made him eligible for a residence permit, which he in fact obtained on 11 November 1982. He obtained Dutch nationality by Royal Decree on 28 October 1987.

At present the first applicant does not live with his second wife anymore. She started divorce proceedings in the course of 1990.

As from 1979, the first applicant's children stayed with his

brother. The first applicant supported his children financially insofar as his financial means allowed and maintained regular contacts by correspondence, telephone and annual visits.

On 22 November 1985 the first applicant requested an authorisation for temporary stay (machtiging tot voorlopig verblijf) on behalf of his three children for family reunification. At the moment of this request the second and third applicants were respectively 18 and 11 years old. By decision of 24 January 1986, communicated to the applicants by letter of 24 February 1986 from the Netherlands Embassy in Islamabad, the Minister of Foreign Affairs rejected the request.

On 20 March 1986 the first applicant filed an appeal against this decision with the Judicial Division of the Council of State (Afdeling Rechtspraak van de Raad van State) in which he invoked Article 8 of the Convention.

On 24 November 1987 the first applicant requested the President of the Judicial Division of the Council of State to grant an interim measure (voorlopige voorziening), which was rejected by the President's decision of 22 January 1988.

In its decision of 19 July 1988 the Judicial Division of the

Council of State rejected the first applicant's appeal of 20 March 1986. It considered that the Minister of Foreign Affairs, in weighing all the interests involved, had given a reasonable decision. In respect of Article 8 of the Convention it considered that at the time of the contested decision no family life between the first applicant and his three children existed anymore, as they had been taken into the family of the first applicant's brother on a permanent basis, whereas the first applicant had founded a new family in the Netherlands, of which the three children from his previous marriage never formed a part. The Judicial Division held furthermore that the first applicant had failed to demonstrate how he was involved in the upbringing of these three children and that, even if he visited them annually and even if they were financially dependent on him, this would not alter the decision having regard in particular to the already advanced age of the children concerned.

In their further observations on the merits, the Government state that, in connection with renewed requests on the part of the first applicant for family reunion with various persons from Pakistan including S. Johangir, the third applicant, a number of new facts have come to light.

On 21 December 1990, the first applicant and his Dutch spouse

were formally divorced. The first applicant submitted a renewed application for family reunion, in which he requested admission for Mrs. T. Akhtar, whom he claims to have married in 1991, his son S. Johangir (the third applicant) from his previous marriage with S. Begum and Mrs. T. Akhtar's four children from a previous marriage.

According to the Government, an investigation by the Netherlands Embassy in Islamabad into the authenticity of the documents submitted by the first applicant in support of his new application for family reunion resulted in the following information:

-the first applicant and Mrs. S. Begum were never married; nor was

the first applicant the father of any children born to Mrs. Begum;

-the first applicant married Mrs. T. Akhtar in 1973, which

marriage has not, to date, been dissolved. They have three children, of whom the third applicant is one.

The Government state that the first applicant has been informed of the results of this investigation and that, at his own request, he has been given until the end of February to submit authentic documents in support of his request for family reunion.

COMPLAINT DECLARED ADMISSIBLE

The applicants complain under Article 8 of the Convention that, by refusing the third applicant access to the Netherlands, the Netherlands authorities have prevented a family reunification of the first applicant with this child. The applicants are of the opinion that the concept of family life has been interpreted too narrowly by the respondent State.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 January 1989 and registered on 31 March 1989.

On 7 May 1990 the Commission decided to communicate the application to the respondent Government and to invite them to submit written observations on the admissibility and merits of the application.

The Government's observations were submitted on 4 September 1990 and the applicants' reply thereto on 19 October 1990.

The Commission decided on 29 June 1992 to declare admissible the first and third applicants' complaint under Article 8 of the Convention and inadmissible the remainder of the application.

The Government submitted further observations on 7 October 1992 and supplementary observations on 13 January 1993.

Following the applicants' request to be allowed to react on the Government's further observations, they were invited to submit their observations before 1 February 1993.

By letter of 4 February 1993, the Commission informed the

applicants that their observations in reply had, so far, not been received and transmitted the Government's supplementary observations. The applicants were requested to include these supplementary observations in their observations in reply.

Following the applicants' request for an extension of the timelimit for the submissions of their observations in reply, the President of the Commission agreed to extend the time-limit until 19 March 1993.

The applicants have not made any submissions since then.

THE LAW

1.The applicants complain under Article 8 (Art. 8) of the

Convention that, by refusing the third applicant access to the Netherlands, the Netherlands authorities have prevented a family reunification of the first applicant with his child. The applicants are of the opinion that the concept of family life has been interpreted too narrowly by the respondent State.

The Commission recalls its decision of 29 June 1992 to declare admissible the first and third applicants' complaint under Article 8 (Art. 8) of the Convention and inadmissible the remainder of the application.

In their supplementary observations of 13 January 1993 the Government submitted that, following his divorce from his Dutch spouse, the first applicant submitted a renewed application for family reunion, in which he requested admission for Mrs. T. Akhtar, whom he claims to have married in 1991, his son S. Johangir (the third applicant) from his previous marriage with S. Begum and Mrs. T. Akhtar's four children from a previous marriage.

The Government further submit that an investigation by the Netherlands Embassy in Islamabad into the authenticity of the documents submitted by the first applicant in support of his new application for family reunion resulted in the following information:

-the first applicant and Mrs. S. Begum were never married; nor was

the first applicant the father of any children born to Mrs. Begum;

-the first applicant married Mrs. T. Akhtar in 1973, which

marriage has not, to date, been dissolved. They have three children, of whom the third applicant is one.

The Government state that the first applicant has been informed of the results of this investigation and that, at his own request, he has been given until the end of February to submit authentic documents in support of his request for family reunion.

According to the Government, the information gathered by them has shown that certain of the facts on which the first applicant has based his application are untrue. The Government submit that their Embassy in Islamabad has noted that all but one of the documents produced by the first applicant are false and that the first applicant must have been aware of these forgeries.

The Government finally submit that, if it had been known in 1982, when the first applicant married a Dutch national - through which he acquired the right of residence - , that he was already married, this marriage could never have taken place, as bigamy is prohibited in the Netherlands.

The Government, therefore, ask the Commission to apply Article 29 (Art. 29) of the Convention and to reject the application on the basis of abuse of the right of petition within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

Article 29 (Art. 29) of the Convention provides:

"After it has accepted a petition submitted under Article

25 (Art. 25), the Commission may nevertheless decide by a majority of two-thirds of its members to reject the petition if, in the course of its examination, it finds that the existence of one of the grounds for non-acceptance provided for in Article 27 (Art. 27) has been established.

In such a case, the decision shall be communicated to the parties."

The Commission notes that the applicants have not disputed the Government's findings and, therefore, considers that the new facts concerning the applicants' family life should be taken into consideration in the examination of the applicants' complaint under Article 8 (Art. 8) of the Convention.

The Commission recalls that the Convention does not guarantee a right to enter or reside in a particular country. However, the Commission has also held that, in view of the right to respect for family life ensured by Article 8 (Art. 8) of the Convention, the exclusion of a person from a country in which his close relatives reside may raise an issue under this provision of the Convention (cf. No. 11278/84, Dec. 1.7.85, D.R. 43 p. 216).

Article 8 (Art. 8) of the Convention, insofar as relevant,

provides as follows:

"1. Everyone has the right to respect for his (...) family

life (...)."

In its decision of 29 June 1992 the Commission considered that there was family life between the first applicant and S. Johangir, which had been interfered with by reason of the authorities' refusal to allow this son to join his father in the Netherlands.

However, it appears that the third applicant has substantial links with Pakistan, where he has always lived and where also his mother and two brothers reside. The third applicant, who at present is eighteen years old, has not lived with his father since 1979, when the latter moved to the Netherlands.

The Commission considers that in these circumstances the decision by the Dutch authorities to refuse the third applicant access to the Netherlands does not amount to lack of respect for the applicants' family life within the meaning of Article 8 (Art. 8) of the Convention.

It follows that the complaint must be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

Under these circumstances, the Commission is of the opinion that the remaining part of the application should be rejected under Article 29 (Art. 29) of the Convention since one of the grounds for inadmissibility provided for in Article 27 (Art. 27) of the Convention has been established.

For these reasons, the Commission, by a majority of two-thirds,

Acting under Article 29 (Art. 29) of the Convention,

REJECTS THE REMAINING PART OF THE APPLICATION.

Deputy Secretary to the Commission President of the Commission

(M. de Salvia) (C.A. Nørgaard)

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