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JEUNESSE v. THE NETHERLANDS
JEUNESSE v. THE NETHERLANDS
DECISION
Application no. 12738/10
Meriam Margriet JEUNESSE
against the Netherlands
THE FACTS
1. The applicant, Ms Meriam Margriet Jeunesse, is a Surinamese
national, who was born in 1967 and is currently living in The Hague. She is
represented before the Court by Ms G. Later, a lawyer practising in The
Hague.
The Netherlands Government (“the Government”) are represented by
their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign
Affairs.
2 JEUNESSE v. THE NETHERLANDS DECISION
final decision on this request, confirming an initial refusal, was given by the
Regional Court (rechtbank) of The Hague sitting in Utrecht on 12 July
2001. In the meantime, in September 2000, a child had been born of the
applicant’s marriage. Under the Netherlands nationality rules, this child is a
Netherlands national. The baby was born prematurely and, suffering from
heart and intestinal problems, required lengthy treatment in hospital.
1
Under this policy a residence title could be granted if a request for a residence permit had
not been determined within a period of three years for reasons not imputable to the
petitioner and provided that there were no contra-indications such as, for instance, a
criminal record.
4 JEUNESSE v. THE NETHERLANDS DECISION
grant the applicant’s request did not deprive her of a residence permit which
enabled her to exercise her family life in the Netherlands.
21. As to the question whether the applicant’s rights under Article 8
entailed a positive obligation on the Netherlands to grant her a residence
permit, the Minister found that the interests of the Netherlands State in
pursuing a restrictive immigration policy outweighed the applicant’s
personal interest in exercising her family life in the Netherlands. In
balancing these competing interests, the Minister took into account that
already in Suriname and before her arrival in the Netherlands the applicant
had been a relationship with her current spouse; that she had entered the
Netherlands without having been granted entry clearance as required under
the relevant immigration rules; and that she had created her family in the
Netherlands without holding a residence title. It having become clear in the
course of the proceedings that the applicant was pregnant, the Minister
further held that it had not been established nor appeared that the applicant
would be unable – should hospitalisation be necessary – to give birth in a
hospital in Suriname, or that there would be any insurmountable objective
obstacles to exercise the family life at issue in Suriname. On this point, the
Minister noted that Dutch was spoken in Suriname and he held that
therefore the transition would not be too difficult for the applicant’s children
who could thus pursue their education in Suriname normally.
22. The Minister added that the mere fact that the applicant’s spouse and
children were Netherlands nationals did not entail an automatic obligation
for the Netherlands authorities to grant the applicant a residence permit, or
would entail that the exercise of family life would solely be possible in the
Netherlands. The Netherlands authorities could not be held responsible for
consequences of the applicant’s personal choice to come to, settle and create
a family in the Netherlands without any certainty about her entitlement to
permanent residence. In the balancing exercise, the Minister attributed
decisive weight to the circumstance that the applicant had never resided
lawfully in the Netherlands and that there was no indication whatsoever of
an impossibility to exercise the family life at issue in Suriname.
23. The Minister further rejected the applicant’s argument that she ought
to be exempted from the provisional residence visa requirement, considering
inter alia that the length of the applicant’s stay in the Netherlands was a
consequence of her personal choice to stay. She had met with several
refusals of applications for a Netherlands residence title but had
nevertheless opted each time to file a fresh request thus accepting the risk
that at some point in time she would have to leave the Netherlands, at least
temporarily. The Minister further considered that the applicant had been
born and raised in Suriname where she had resided for most part of her life
and that, given her age, she should be regarded as capable of returning to
and fending for herself in Suriname, if need be with financial and/or
material support from the Netherlands pending the determination of an
JEUNESSE v. THE NETHERLANDS DECISION 7
detention centre where she was found to be pregnant, her due date being
14 December 2010.
32. On 11 April 2010, the applicant filed a request for release from
aliens’ detention which was rejected on 27 April 2010 by the Regional
Court of The Hague sitting in Rotterdam. It rejected the applicant’s
arguments to the effect that there were no reasonable prospects of her
removal within a reasonable delay as well as her complaint under
Article 5 § 1 (f) of the Convention that her placement in aliens’ detention
had been imposed for another purpose than her expulsion. The applicant’s
subsequent appeal to the Administrative Jurisdiction Division was
dismissed on 7 June 2010. The Administrative Jurisdiction Division
confirmed the ruling of 27 April 2010.
33. On 30 April 2010, the applicant sent a copy of her Surinamese
passport – issued in 2009 – to the Netherlands immigration authorities,
explaining that her first name had been misspelt in this passport. She had
sent it back to Suriname for correction.
34. On 11 May 2010, the applicant filed a fresh request for release,
relying on inter alia Article 3, Article 5 §§ 1 (f) and 4 and Article 8 of the
Convention. This request was rejected on 1 June 2010 by the Regional
Court of The Hague sitting in Rotterdam. It found that the applicant’s age
and pregnancy formed an insufficient basis for finding that her detention
was contrary to Article 3 and that she had not demonstrated that, against that
background, her conditions of detention were incompatible with that
provision. Further having noted, inter alia, that her grievances under
Articles 5 and 8 had already been rejected in the ruling of 27 April 2010
(see paragraph 32 above) and that a reminder had been addressed by the
Netherlands authorities to the Surinamese authorities on 12 May 2010, the
Regional Court found that there remained sufficient prospects of removal
within a reasonable delay and that the Netherlands authorities displayed due
diligence in their conduct of the proceedings. It added – noting that the
applicant had spent two months in aliens’ detention – that it was constant
case law that during the first six months of aliens’ detention it was generally
held that the alien’s personal interest in being released was outweighed by
the public interest in continuing aliens’ detention but that specific
circumstances could shift this balance before six months had elapsed. It did,
however, not find that the applicant’s arguments based on her pregnancy
carried such weight that on these grounds her detention should be
discontinued at this stage. No further appeal lay against this ruling.
35. On 24 June 2010 the applicant filed a new request for release from
aliens’ detention with the Rotterdam Regional Court. This request was
rejected on 8 July 2010. Noting the progress report submitted by the
Minister of Justice on 28 June 2010, it found that there remained sufficient
prospects of expulsion within a reasonable delay and that the Netherlands
authorities were pursuing the applicant’s removal with sufficient diligence.
JEUNESSE v. THE NETHERLANDS DECISION 9
(a) The Agreement between the Kingdom of the Netherlands and the Republic
of Suriname concerning the assignment of nationality
55. Formerly a country (land) within the Kingdom of the Netherlands,
Suriname became an independent republic on 25 November 1975. The
Agreement between the Kingdom of the Netherlands and the Republic of
Suriname concerning the assignment of nationality
(Toescheidingsovereenkomst inzake nationaliteiten tussen het koninkrijk der
Nederlanden en de Republiek Suriname) of 25 November 1975,
Tractatenblad (Netherlands Treaty Series) 1975, no. 132, [1976] 997 United
Nations Treaty Series (UNTS) no. 14598, as amended by the Protocol of
14 November 1994, Tractatenblad 1994, no. 280, in its relevant parts,
provides as follows:
“Article 2
Article 3
All Netherlands nationals of full age who were born in Suriname and whose
domicile or place of actual residence is in Suriname on the date of the entry into force
of this Agreement shall acquire Surinamese nationality.
Article 5
1. Netherlands nationals of full age who were born in Suriname ... and on the date
of the entry into force of this Agreement have their domicile or place of actual
residence outside the Republic of Suriname may acquire Surinamese nationality, even
outside the Republic of Suriname, by making a declaration signifying their desire for
such nationality prior to 1 January 1986.
JEUNESSE v. THE NETHERLANDS DECISION 13
1
http://www.gov.sr/sr/ministerie-van-juspol/diensten/hoofdafdeling-
vreemdelingenzaken.aspx, accessed on 7 August 2012;
http://www.consulaatsuriname.nl/, accessed on 7 August 2012
14 JEUNESSE v. THE NETHERLANDS DECISION
C. Language
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided
for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European
Parliament and in municipal elections in their Member State of residence, under the
same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State
of which they are nationals is not represented, the protection of the diplomatic and
JEUNESSE v. THE NETHERLANDS DECISION 15
consular authorities of any Member State on the same conditions as the nationals of
that State;
(d) the right to petition the European Parliament, to apply to the European
Ombudsman, and to address the institutions and advisory bodies of the Union in any
of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined
by the Treaties and by the measures adopted thereunder.”
64. In its judgment of 8 March 2011, Case C-34/09, Gerardo Ruiz
Zambrano v. Office national de l’emploi (ONEm), the Court of Justice of
the European Union ruled as follows:
“Article 20 [of the Treaty on the Functioning of the European Union] is to be
interpreted as meaning that it precludes a Member State from refusing a third country
national upon whom his minor children, who are European Union citizens, are
dependent, a right of residence in the Member State of residence and nationality of
those children, and from refusing to grant a work permit to that third country national,
in so far as such decisions deprive those children of the genuine enjoyment of the
substance of the rights attaching to the status of European Union citizen.”
COMPLAINTS
65. The applicant complained that the obligation to return to Suriname in
order to obtain a provisional residence visa and the resulting separation
from her children in the Netherlands which could harm their development,
her placement in aliens’ detention, the refusal – as a consequence of the
insistence on a provisional residence visa – to admit her to the Netherlands,
and the conditions in which she was held in aliens’ detention amounted to
treatment proscribed under Article 3 of the Convention. She further
complained that, as regards this grievance, she did not have an effective
remedy as guaranteed by Article 13 of the Convention.
66. The applicant further complained that her placement in aliens’
detention was contrary to Article 5 §§ 1 (f) and 4 of the Convention and
thus entitled her to compensation pursuant to Article 5 § 5 of the
Convention.
67. The applicant argued that not exempting her from the obligation to
hold a provisional residence visa issued by the Netherlands mission in
Suriname before she is able to apply for a residence permit in the
Netherlands is contrary to her rights guaranteed by Article 8 of the
Convention. Apart from the fact that the processing of such an application
could take anything from three months to a year or more, there is no
guarantee that a visa will actually be granted. She further complained that,
on this point, she did not have an effective remedy within the meaning of
Article 13 of the Convention.
16 JEUNESSE v. THE NETHERLANDS DECISION
THE LAW
2. 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 interests 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 protection of the rights and freedoms of others.”
children were Netherlands nationals and had never been in Suriname; they
did not speak the language.
81. The applicant submitted that Article 20 of the Treaty on the
Functioning of the European Union, as interpreted by the Court of Justice of
the European Union in its Zambrano judgment, entitled her to remain in the
European Union on the strength of the Netherlands nationality of her
dependent children.
82. In light of the parties’ submissions, the Court finds that this part of
the application raises issues of fact and law that require an examination of
the merits and that it is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention. It further finds that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be
secured without discrimination on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The Government denied this.
88. The Court finds that the applicant has failed to establish the truth and
accuracy of her assertion that spouses of non-Netherlands European Union
nationals are exempted from the requirement of a provisional residence visa.
89. It follows that this complaint is also manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
90. The applicant also complained that the decision to order her
placement in aliens’ detention as well as the conditions in which she was
held in aliens’ detention violated her rights under Article 3 of the
Convention and that, in this respect, she did not have an effective remedy
within the meaning of Article 13 of the Convention. Article 3 reads as
follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
91. The Government submitted that the applicant was no longer a victim
of any violation to the extent that she had obtained rulings in her favour
from the Appeals Board of the Council for the Administration of Criminal
Justice and Juvenile Protection (see paragraph 44 above) and that her
complaints were unfounded for the remainder.
92. To the extent that, in view of the rulings referred to by the
Government, the applicant can still be considered a “victim” within the
terms of Article 34 of the Convention in respect of her complaint under
Article 3, the Court reiterates that to fall within the scope of this provision,
ill-treatment must attain a minimum level of severity. The assessment of
this minimum level of severity is relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its physical
and mental effects and, in some cases, the sex, age and state of health of the
victim. The suffering and humiliation involved must in any event go beyond
the inevitable element of suffering or humiliation connected with a given
form of legitimate treatment or punishment. Under this provision the State
must ensure that a person is detained in conditions which are compatible
with respect for his or her human dignity, that the manner and method of the
execution of the measure do not subject him of her to distress or hardship of
an intensity exceeding the unavoidable level of suffering inherent in
detention and that, given the practical demands of imprisonment, his or her
20 JEUNESSE v. THE NETHERLANDS DECISION
health and well-being are adequately secured (see Enea v. Italy [GC],
no. 74912/01, §§ 55-58 with further references, ECHR 2009-...; and
Zakharkin v. Russia, no. 1555/04, §§ 120-121 with further references,
10 June 2010).
93. The Court notes that the applicant was held in aliens’ detention from
10 April 2010 to 5 August 2010. Not taking into account the applicant’s
complaints accepted as founded by the Appeals Board of the Council for the
Administration of Criminal Justice and Juvenile Protection, the Court has
found no indication in the contents of the case file that during her placement
in aliens’ detention the applicant was denied adequate medical or other care
required by her pregnancy, or that the conditions in which she was held in
aliens’ detention warrant a finding that these amounted to treatment
proscribed by Article 3.
94. It follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
95. To the extent that, in this context, the applicant further relied on
Article 13 of the Convention, it is the Court’s well-established case law that
a complaint may only be made under Article 13 in connection with a
substantive claim which is “arguable” (see, for example, Hatton and Others
v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003-VIII; and
Ashworth and Others v. the United Kingdom (dec.), no. 39561/98,
20 January 2004). The Court has found that the applicant’s complaints
under Article 3 in respect of her placement in aliens’ detention are
manifestly ill-founded. Consequently, those complaints cannot be said to be
“arguable” within the meaning of the Convention case law.
96. It follows that this complaint is also manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and must be rejected
pursuant to Article 35 § 4.
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition. ...
JEUNESSE v. THE NETHERLANDS DECISION 21
5. Everyone who has been the victim of arrest or detention in contravention of the
provisions of this Article shall have an enforceable right to compensation.”
99. The Government submitted that the applicant’s detention was
entirely in line with domestic law, that any delays complained of were
explainable by the applicant’s own uncooperative attitude, and that the
applicant had had available – and had availed herself – of the guarantees
offered by domestic procedure. Moreover, the applicant had been released
following a weighing of her interests against the public interest.
100. The Court finds that the applicant, after she had failed to respect an
order to report regularly to the aliens’ police as well as a subsequent
summons to report to the police for the purposes of her removal, was
detained “with a view to deportation” within the meaning of Article 5 § 1 (f)
of the Convention. The Court recalls that Article 5 § 1 (f) requires that
“action is being taken with a view to deportation”. It is therefore immaterial,
for the purposes of this provision whether the underlying decision to expel
can be justified under national or Convention law. However, any
deprivation of liberty under Article 5 § 1 (f) will be justified only for as long
as deportation proceedings are in progress. If such proceedings are not
pursued with due diligence, the detention will cease to be permissible under
Article 5 § 1 (f) of the Convention (see Saadi v. the United Kingdom [GC],
no. 13229/03, § 72, ECHR 2008-...).
101. As to the question whether the applicant’s placement in aliens’
detention was lawful for the purposes of Article 5 § 1 (f) of the Convention,
the Court recalls that where the lawfulness of detention is in issue, including
the question whether a “procedure prescribed by law” has been followed,
the Convention refers essentially to the obligation to conform to the
substantive and procedural rules of national law, but it requires in addition
that any deprivation of liberty should be in keeping with the purpose of
Article 5, namely to protect the individual from arbitrariness (see A. and
Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009-...).
102. The Court observes that, in its three judgments given on 27 April
2010, 1 June 2010 and 8 July 2010 (see paragraphs 32, 34 and 35 above),
the Rotterdam Regional Court rejected the applicant’s argument that her
placement in aliens’ detention was unlawful under the relevant statutory
provisions and concluded that in reason there were sufficient grounds
justifying depriving the applicant of her liberty. Noting the reasons given by
the Regional Court in these decisions for this finding, the Court cannot
consider these decisions to be unreasonable or arbitrary or otherwise
contrary to the applicant’s rights under Article 5 § 1 (f) of the Convention.
103. Insofar as the applicant relies on Article 5 § 4 of the Convention,
the Court notes that, following requests for release filed by the applicant, the
22 JEUNESSE v. THE NETHERLANDS DECISION
D. Other complaints
106. In so far as the applicant also complained that the refusal to exempt
her from the obligation to return to Suriname in order to obtain a provisional
residence visa and the resulting separation from her family in the
Netherlands was contrary to Article 3 which prohibits inter alia inhuman
treatment, and Article 3 § 1 of Protocol No. 4 which prohibits the expulsion
of nationals, the Court finds – in the light of all the material in its possession
and in so far as the matters complained of are within its competence – that
these complaints do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
107. It follows that these complaints are manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.