EHRM, 03-10-2014, nr. 12738/10

On 20 October 1997, the applicant applied for a residence permit. According to the applicant, she had done so for the purpose of taking up residence with her Netherlands-national partner Mr W. According to the Government, the applicant's stated aim had been to take up ‘paid employment’. On 16 February 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) decided not to process the application (buiten behandeling stellen) as the applicant had on two occasions failed to appear in person before the immigration authorities for the purpose of giving further information about her application. When, on 13 February 1998, the applicant's lawyer had requested a new appointment on the ground that she would be unable to attend the interview scheduled for 16 February 1998, she was informed by the immigration authorities that — despite her lawyer's absence — the applicant should appear in person. The applicant did not appear on 16 February 1998. The Deputy Minister's decision of 16 February 1998 was notified to the applicant on 23 February 1998 and she was ordered to leave the Netherlands within seven days.

The applicant filed an objection (bezwaar) against the decision of 16 February 1998. As this objection was denied suspensive effect, she applied for a provisional measure (voorlopige voorziening) in the form of a court injunction preventing her expulsion pending the determination of her objection. This application was rejected on 23 December 1999 by the Acting President of the Regional Court (rechtbank) of The Hague sitting in Haarlem. The applicant's objection against the decision of 16 February 1998 was rejected by the Deputy Minister on 17 January 2000. The applicant's appeal against this decision to the Regional Court of The Hague and her accompanying application for a provisional measure were rejected on 12 July 2001 by the Regional Court of The Hague sitting in Utrecht. No further appeal lay against this ruling.

In the meantime, the applicant had married Mr W. on 25 June 1999 and, in September 2000, a son was born of this marriage. Under the Netherlands nationality rules, the applicant's child is a Netherlands national. Since the child was unwell, he required lengthy treatment in hospital. He is currently attending secondary school and has no health problems.

On 20 April 2001, the applicant applied unsuccessfully for a residence permit on the basis of the so-called three-year policy (driejarenbeleid) or for compelling reasons of a humanitarian nature. Under this three-year policy a residence permit could be granted if a request for such a 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. In the course of the proceedings on this request, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Amsterdam granted the applicant's request for a provisional measure (injunction on removal) on 23 February 2004. The final decision was given on 17 May 2004 by the Regional Court of The Hague sitting in Amsterdam.

On 10 December 2005, a second child was born of the applicant's marriage. This child also holds Netherlands nationality.

On 23 January 2007, the applicant filed a request for a residence permit for the purpose of stay with her children in the Netherlands. This request was rejected because the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa has to be applied for at a Netherlands mission in the petitioner's country of origin and it is a prerequisite for the grant of a residence permit (verblijfsvergunning) which confers more permanent residence rights. The applicant was not exempted from the obligation to hold a provisional residence visa. She challenged this decision unsuccessfully in administrative appeal proceedings in which the final decision was taken by the Regional Court of The Hague sitting in Haarlem on 19 April 2007.

On 7 May 2007, the applicant requested the Deputy Minister of Justice to reconsider (heroverwegen) the negative decision on her last request. On 28 September 2007, the applicant filed a complaint with the Deputy Minister on account of the latter's failure to reply to her request for reconsideration. By letter of 12 November 2007, the Deputy Minister informed the applicant that although her complaint concerning delay was well-founded there was no reason for a reconsideration of the decision.

On 28 September 2007, the applicant applied for a grant of a residence permit at the discretion of the Deputy Minister (conform beschikking staatssecretaris) based on grounds of special and individual circumstances (vanwege bijzondere en individuele omstandigheden).

On 7 July 2008, the Deputy Minister of Justice rejected this application. The applicant filed an objection with the Deputy Minister against this decision as well as an application to the Regional Court of The Hague for a provisional measure (injunction on removal pending the objection proceedings). On 17 November 2008, having noted that this request was not opposed by the Deputy Minister, the Regional Court of The Hague granted the provisional measure. On 11 March 2009, after a hearing on the applicant's objection held on 15 January 2009, the Deputy Minister rejected the applicant's objection.

The applicant's appeal against the decision of 11 March 2009 to the Regional Court of The Hague and her accompanying application for a provisional measure in the form of an injunction on her removal pending the determination of her appeal were rejected on 8 December 2009 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. In its relevant part, this ruling reads as follows:

On 2 August 2009, upon his return to the Netherlands from a trip to Suriname for the funeral of his foster mother, the applicant's husband had been found to have swallowed cocaine pellets. He was placed in pre-trial detention. On 8 October 2009, a single-judge chamber (politierechter) of the Haarlem Regional Court convicted him of offences under the Opium Act (Opiumwet) and sentenced him to seven months' imprisonment. On the basis of this conviction, the Netherlands Royal Constabulary (Koninklijke Marechaussee) included his name on a blacklist provided to airline companies operating direct flights between the Netherlands and Aruba, the former Netherlands Antilles, Suriname and Venezuela. His name was to remain on the list for a period of three years, the aim being to prevent him from reoffending. On 31 December 2009, after having served his sentence, the applicant's husband was released from prison. His name was removed from the airline blacklist on 2 August 2012.

The applicant's appeal of 7 January 2010 to the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State) against the judgment of 8 December 2009 of the provisional-measures judge of the Regional Court of The Hague was dismissed on 6 July 2010. The Administrative Jurisdiction Division found that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

In the meantime, the applicant filed a fifth request on 16 April 2010 for a residence permit with the Minister of Justice (Minister van Justitie) for the purpose of stay with a child, arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances.

This request was rejected on 11 May 2010 by the Minister, who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to Article 8 of the Convention. While accepting that there was family life within the meaning of Article 8 between the applicant, her husband and their children, the Minister found that there was no interference with the right to respect for family life as the refusal to grant the applicant's request for exemption did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands.

As to the question whether the applicant's rights under Article 8 entailed a positive obligation for 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 right to family life in the Netherlands. In balancing these competing interests, the Minister took into account the following: already in Suriname and before her arrival in the Netherlands the applicant had been in a relationship with her current spouse; she had entered the Netherlands without having been granted entry clearance for joining her partner as required under the relevant immigration rules; and she had created her family in the Netherlands without holding a residence permit. When it transpired in the course of the proceedings that the applicant was pregnant, the Minister further held that it had not been established, nor did it appear 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 the exercise of family life in Suriname. On this point, the Minister noted that Dutch was spoken in Suriname and that the transition would not therefore be particularly difficult for the applicant's children, who could continue their education in Suriname in a normal manner.

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 lead to the conclusion that the exercise of family life would only be possible in the Netherlands. The Netherlands authorities could not be held responsible for the consequences of the applicant's personal choice to come to, settle and create a family in the Netherlands without any certainty as to her entitlement to permanent residence. In the balancing exercise, the Minister attributed decisive weight to the fact that the applicant had never resided lawfully in the Netherlands and that there was no indication whatsoever that it would be impossible to exercise family life in Suriname.

The Minister further rejected the applicant's argument that she ought to be exempted from the visa requirement, on the basis that inter alia the length of the applicant's stay in the Netherlands was a consequence of her personal choice to continue to remain there. She had met with several refusals of her applications for a Netherlands residence permit 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 most of her life and, 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 application for a provisional residence visa to be filed by her in Suriname. The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the visa requirement constituted exceptional hardship within the meaning of section 3.71 § 4 of the Aliens Decree 2000.

On 17 May 2010, the applicant filed an objection against this decision with the Minister. She filed additional grounds for her objection and furnished further information by letters of 20 and 25 May and 8 June 2010.

On 2 July 2010, the applicant requested the Regional Court of The Hague to issue a provisional measure (injunction on expulsion pending the outcome of the objection proceedings).

On 3 August 2010, following a court hearing held on 28 July 2010 and having regard to pending proceedings taken by the applicant seeking deferral of her removal under section 64 of the Aliens Act 2000 (see paragraph 53 below), the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam rejected the request for a provisional measure on the basis that it was moot.

On 19 December 2011 the Minister rejected the applicant's objection of 17 May 2010. An appeal by the applicant against that decision was rejected on 17 July 2012 by the Regional Court of The Hague sitting in Dordrecht. In so far as relevant, its judgment reads:

The Regional Court went on to find that the applicant had not substantiated her alleged medical problems or why these problems should lead to exempting her from the obligation to hold a provisional residence visa. The court further found that the applicant had not demonstrated her claim that, apart from the requirement to hold a provisional residence visa, she met all requirements for the issuance of a residence permit.

On 14 August 2012, the applicant filed a further appeal with the Administrative Jurisdiction Division. No further information about the proceedings on this latest request for a residence permit has been submitted by the parties.

The applicant claimed that the refusal to exempt her from the obligation to hold a provisional residence visa and the refusal to admit her to the Netherlands breached her right under Article 8 of the Convention. Her intention had been from the outset to settle in the Netherlands with her partner, later her husband, and this had at all relevant times been known to the Netherlands immigration authorities. The applicant submitted that the Court should place emphasis on the question as to whether a fair balance had been struck between the competing interests involved. She considered that in her case no fair balance had been struck for the following reasons.

In the first place, the applicant and her family, i.e. her husband and their three children, had lived together as a family in the Netherlands for the past sixteen years. They had lived in the same family home since 1999. All her children had been born in the Netherlands and both her husband and her children were Netherlands nationals. The applicant, herself, was a former Netherlands national prior to the independence of Suriname.

To refuse the applicant a Netherlands residence permit would inevitably result in the family becoming separated. Her husband was gainfully employed in the Netherlands and he was the sole financial provider for the family. His income was required to support the family and to pay for debts incurred because the applicant was never permitted to work in the Netherlands and thus to contribute to the family income. The distance between the Netherlands and Suriname was obviously too far for her husband to commute and he did not have a job in Suriname.

The applicant further submitted that, whilst she had never been granted a residence permit, she had in fact been lawfully present during a large part of her time in the Netherlands in that she had been allowed to remain whilst awaiting the outcome of the proceedings on her requests for a residence permit which, moreover, had been unnecessarily protracted. She argued that the years that had passed since her first lawful admission into the Netherlands must be taken into consideration. Even during periods when she was eligible for removal, no practical steps had been taken by the authorities to ensure her effective removal. During this time her family life had been established and developed. She also pointed out that she had never lied about her identity and, unlike the situation of the applicants in the cases of Nunez v. Norway, (no. 55597/09, 28 June 2011); Arvelo Aponte v. the Netherlands, (no. 28770/05, 3 November 2011); and Antwi and Others v. Norway, (no. 26940/10, 14 February 2012), she had no criminal record.

The applicant considered that it was in the best interests of her children that she be permitted to reside in the Netherlands. She was their primary carer and they needed their mother to be with them. Her husband was working shift work, at times, and this prevented him from returning home every day. The children depended on her emotionally and psychologically and it was in their best interests to have her stay with them and a separation would have adverse effect on their development. She relied upon an expert report that was supplied to the Court in support of her claim that the children had already been adversely affected by the separation that they had endured during their mother's placement in aliens' detention. To grant the applicant a residence permit would give the children the stability, certainty and a sense of security they needed.

The applicant contended that it was also in the best interests of her children — who were rooted in the Netherlands — to preserve their family unit in the Netherlands. Leaving the Netherlands with their mother to move to Suriname would have a negative impact upon them. The children were settled in schools and had their friends there. They were all doing very well at school. They had no friends in Suriname and they were not used to Surinamese schools.

The applicant also argued that it would be contrary to the rights of her children under Article 20 of the TFEU if they would be compelled to leave the Netherlands and the European Union as a result of the applicant being refused residence in the Netherlands. Article 20 of this Treaty, as interpreted by the Court of Justice of the European Union in its Ruiz Zambrano judgment (see paragraph 71 above), entitled her to remain in the European Union on the strength of the Netherlands nationality of her dependent children. The applicant's children could not be held responsible for choices made by their parents.

The applicant thus concluded that, in the circumstances of her case, the general interests of the Netherlands State did not outweigh the rights of the applicant and her family under Article 8 and that insufficient weight had been given to the best interests of her children. The outcome reached by the Netherlands authorities was not in line with Article 3 of the United Nations Convention on the Rights of the Child nor was it proportionate for the purposes of Article 8 of the Convention.

The Government accepted that the applicant had family life in the Netherlands within the meaning of Article 8 of the Convention. Since she was still in the process of seeking a first admission for residence purposes, the pertinent question was whether the Netherlands authorities were under a positive obligation to allow her to reside in the Netherlands for the purpose of enabling her to enjoy family life with her husband and children there. This was the essential question in the case, and not the requirement to hold a provisional residence visa when applying for a residence permit.

As to whether a fair balance had been struck, the Government pointed out that, in view of the Court's case-law under Article 8 of the Convention relating to family life formed during an unlawful stay, it was only in the most exceptional circumstances that the removal of the non-national family member would be contrary to Article 8.

Noting that the applicant and Mr W. already had a relationship when they were living in Suriname, the Government observed that — before travelling to the Netherlands — the applicant had never applied for a (provisional residence) visa for the purpose of visiting or living with Mr W., even though she had been in a relationship with him since 1987. The applicant seemed to have made this decision deliberately with a view to settling in the Netherlands and thus presenting the Netherlands authorities with a fait accompli. When she travelled to the Netherlands on a 45-day tourist visa for the purpose of visiting a relative, she knew that her visa could not serve as a basis for a residence permit.

The Government pointed out that only after almost six months of illegal residence in the Netherlands did the applicant submit her first request for a residence permit. That request was not examined because she had failed to cooperate with the authorities. Despite being notified on two occasions, she had not appeared in person before the immigration authorities and had failed to submit the requisite documents. None of the applicant's subsequent requests for a residence permit — all of which were determined within a reasonable time — had been made for the purpose of reunification with Mr W., whereas she now complained of having been denied a residence permit enabling her to exercise her family life.

The Government further submitted that the applicant had been given notice that she was obliged to leave the Netherlands on several occasions during the periods in which she was not permitted to stay to await the outcome of her domestic proceedings. However, she had failed to comply. The applicant had no grounds whatsoever for believing, and had not been given any reason to believe, that she would be issued with a residence permit.

The Government considered that there were no ‘highly exceptional circumstances’ in the applicant's case. There were no objective impediments or insurmountable obstacles for the applicant to exercise her family life in Suriname. Both she and her husband were born and raised there and had lived in Suriname for most of their lives. They were both adults and capable of building a life in Suriname where they still had relatives. Furthermore, Dutch was the official language of Suriname in government and administration and it had not been demonstrated that her husband would not be permitted to settle in Suriname. The applicant's decision to further her family life in the Netherlands and to have children there, even though she and her husband knew that she was not lawfully residing there, was her own choice. On that account, the applicant was responsible for the consequences of that decision.

As regards the weight to be given to the best interests of the children, the Government considered that the birth of a child, even if the child held the nationality of the host country, did not, in itself, give its parent(s) the right of residence. Admittedly, it was, in principle, important for children to grow up in the vicinity of both parents. However, in the case at hand there was no question of the family being separated as there were no objective insurmountable obstacles to exercising the right to family life elsewhere.

According to the Government, the applicant's children — now 13, 8 and 3 years old, respectively — were still relatively young and adaptable. It could be expected that they would adjust to the culture of Suriname where Dutch was spoken. Any other conclusion would mean that emigration would almost always be contrary to the general interest of any child who had become integrated in the country where it was born and being raised. The Government argued that it could not be inferred from the Court's case-law that the general interest of children could be the sole decisive factor. There was no evidence of specific circumstances, such as a guardianship arrangement, special education or health issues requiring that the applicant's children be regarded as being ‘bound’ to the Netherlands. The Government lastly submitted that the applicant had no direct or derived residence rights under EU law and that her situation bore no resemblance to that of the Ruiz Zambrano case (see paragraph 71 above) invoked by her.

The Government concluded that a careful review of the facts of the case had been carried out in order to determine whether the applicant should be granted residence in the Netherlands on the basis of Article 8. Only after this had been found not to be the case, did the Netherlands authorities conclude that the applicant was not exempted from the obligation to hold a provisional residence visa. The applicant had deliberately used her entry visa for purposes other than a brief family visit and should not be entitled to remain in the Netherlands merely because of her wish to live there and her filing of repeated residence requests.

The present case concerns essentially a refusal to allow the applicant to reside in the Netherlands on the basis of her family life in the Netherlands. It has not been disputed that there is family life within the meaning of Article 8 of the Convention between the applicant and her husband and their three children. As to the question of compliance with this provision, the Court reiterates that a State is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country (see, for instance, Nunez, cited above, § 66). The corollary of a State's right to control immigration is the duty of aliens such as the applicant to submit to immigration controls and procedures and leave the territory of the Contracting State when so ordered if they are lawfully denied entry or residence.

The Court notes the applicant's clear failure to comply with the obligation to obtain a provisional residence visa from abroad before seeking permanent residence rights in the Netherlands. It reiterates that, in principle, Contracting States have the right to require aliens seeking residence on their territory to make the appropriate request from abroad. They are thus under no obligation to allow foreign nationals to await the outcome of immigration proceedings on their territory (see, as a recent authority, Djokaba Lambi Longa v. the Netherlands (dec.), no. 33917/12, § 81, 9 October 2012).

Although the applicant has been in the Netherlands since March 1997, she has — apart from the initial period when she held a tourist visa valid for 45 days — never held a residence permit issued to her by the Netherlands authorities. Her stay in the Netherlands therefore cannot be equated with a lawful stay where the authorities have granted an alien permission to settle in their country (see Useinov v. the Netherlands (dec.), no. 61292/00, 11 April 2006). However, the Court notes that until 22 June 2001 she was under a civil obligation, pursuant to section 6:83 of Book 1 of the Civil Code, to live with her husband (see paragraph 61 above).

Where a Contracting State tolerates the presence of an alien in its territory thereby allowing him or her to await a decision on an application for a residence permit, an appeal against such a decision or a fresh application for a residence permit, such a Contracting State enables the alien to take part in the host country's society, to form relationships and to create a family there. However, this does not automatically entail that the authorities of the Contracting State concerned are, as a result, under an obligation pursuant to Article 8 of the Convention to allow him or her to settle in their country. In a similar vein, confronting the authorities of the host country with family life as a fait accompli does not entail that those authorities are, as a result, under an obligation pursuant to Article 8 of the Convention to allow the applicant to settle in the country. The Court has previously held that, in general, persons in that situation have no entitlement to expect that a right of residence will be conferred upon them (see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003; Benamar v. the Netherlands (dec.), no. 43786/04, 5 April 2005; Priya v. Denmark (dec.) no. 13594/03, 6 July 2006; Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 43, ECHR 2006-I; Darren Omoregie and Others v. Norway, no. 265/07, § 64, 31 July 2008; and B.V. v. Sweden (dec.), no. 57442/11, 13 November 2012).

The instant case may be distinguished from cases concerning ‘settled migrants’ as this notion has been used in the Court's case-law, namely, persons who have already been granted formally a right of residence in a host country. A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8. In such cases, the Court will examine whether the interference is justified under the second paragraph of Article 8. In this connection, it will have regard to the various criteria which it has identified in its case-law in order to determine whether a fair balance has been struck between the grounds underlying the authorities' decision to withdraw the right of residence and the Article 8 rights of the individual concerned (see, for instance, Boultif v. Switzerland, no. 54273/00, ECHR 2001-IX; Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII; Maslov v. Austria [GC], no. 1638/03, ECHR 2008; Savasci v. Germany (dec.), no. 45971/08, 19 March 2013; and Udeh v. Switzerland, no. 12020/09, 16 April 2013).

As the factual and legal situation of a settled migrant and that of an alien seeking admission to a host country — albeit in the applicant's case after numerous applications for a residence permit and many years of actual residence — are not the same, the criteria developed in the Court's case-law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant. Rather, the question to be examined in the present case is whether, having regard to the circumstances as a whole, the Netherlands authorities were under a duty pursuant to Article 8 to grant her a residence permit, thus enabling her to exercise family life on their territory. The instant case thus concerns not only family life but also immigration. For this reason, the case at hand is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention (see Ahmut v. the Netherlands, 28 November 1996, § 63, Reports of Judgments and Decisions 1996-VI). As regards this issue, the Court will have regard to the following principles as stated most recently in the case of Butt v. Norway (no. 47017/09, § 78 with further references, 4 December 2012).

While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State's positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.

Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple's choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, cited above, § 78).

Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court's well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 94, § 68; Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998; Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999; M. v. the United Kingdom (dec.), no. 25087/06, 24 June 2008; Rodrigues da Silva and Hoogkamer v. the Netherlands, cited above, § 39; Arvelo Aponte v. the Netherlands, cited above, §§ 57–58; and Butt v. Norway, cited above, § 78).

Where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 44, 1 December 2005; mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, §§ 139–140, 19 January 2012; Neulinger and Shuruk v. Switzerland, cited above, § 135; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it.

As to the applicant's reliance on the Ruiz Zambrano judgment of the Court of Justice of the EU (see paragraph 71 above), the Court emphasises that, under the terms of Article 19 and Article 32 § 1 of the Convention, it is not competent to apply or examine alleged violations of EU rules unless and in so far as they may have infringed rights and freedoms protected by the Convention. More generally, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, if necessary in conformity with EU law, the Court's role being confined to ascertaining whether the effects of such adjudication are compatible with the Convention (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, § 54 with further references, 20 September 2011).

In the Dereci case (see paragraph 72 above), the Court of Justice of the EU, whilst finding no obligation under EU law to admit the third country national, also held that this finding was without prejudice to the question whether, on the basis of the right to respect for family life, a right of residence could not be refused but that this question had to be considered in the framework of the provisions on the protection of fundamental rights.

It is precisely in that latter framework that the Court will now examine the applicant's case, namely — and as noted above — the alleged failure of the Netherlands authorities to protect the applicant's fundamental right to respect for family life as guaranteed by Article 8 of the Convention.

The Court reiterates that the applicant's presence in the Netherlands has been irregular since she outstayed the 45-day tourist visa granted to her in 1997. It is true that at that time admission to the Netherlands was governed by the Aliens Act 1965 but the applicant's situation — in view of the reason why her request for a residence permit of 20 October 1997 was not processed (see paragraph 14 above) — is governed by the Aliens Act 2000. Having made numerous attempts to secure regular residence in the Netherlands and having been unsuccessful on each occasion, the applicant was aware — well before she commenced her family life in the Netherlands — of the precariousness of her residence status.

Where confronted with a fait accompli the removal of the non-national family member by the authorities would be incompatible with Article 8 only in exceptional circumstances (see paragraph 108 above). The Court must thus examine whether in the applicant's case there are any exceptional circumstances which warrant a finding that the Netherlands authorities failed to strike a fair balance in denying the applicant residence in the Netherlands.

The Court first and foremost takes into consideration the fact that all members of the applicant's family with the exception of herself are Netherlands nationals and that the applicant's spouse and their three children have a right to enjoy their family life with each other in the Netherlands. The Court further notes that the applicant held Netherlands nationality at birth. She subsequently lost her nationality when Suriname became independent. She then became a Surinamese national, not by her own choice but pursuant to Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality (see paragraph 62 above). Consequently, her position cannot be simply considered to be on a par with that of other potential immigrants who have never held Netherlands nationality.

The Court considers that a second important feature of the instant case is the fact that the applicant has been in the Netherlands for more than sixteen years and that she has no criminal record. Although she failed to comply with the obligation to leave the Netherlands, her presence was nevertheless tolerated for a considerable period of time by the Netherlands authorities, while she repeatedly submitted residence requests and awaited the outcome of appeals. The tolerance of her presence for such a lengthy period of time, during which for a large part it was open to the authorities to remove her, in effect enabled the applicant to establish and develop strong family, social and cultural ties in the Netherlands. The applicant's address, where she has been living for the last fifteen years, has always been known to the Netherlands authorities.

Thirdly, the Court accepts, given the common background of the applicant and her husband and the relatively young age of their children, that there would appear to be no insurmountable obstacles for them to settle in Suriname. However, it is likely that the applicant and her family would experience a degree of hardship if they were forced to do so. When assessing the compliance of State authorities with their obligations under Article 8, it is necessary to take due account of the situation of all members of the family, as this provision guarantees protection to the whole family.

The Court fourthly considers that the impact of the Netherlands authorities' decision on the applicant's three children is another important feature of this case. The Court observes that the best interests of the applicant's children must be taken into account in this balancing exercise (see above § 109). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland, cited above, § 135, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. For that purpose, in cases concerning family reunification, the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in the country or countries concerned and the extent to which they are dependent on their parents (see Tuquabo-Tekle and Others v. the Netherlands, cited above, § 44).

Noting that the applicant takes care of the children on a daily basis, it is obvious that their interests are best served by not disrupting their present circumstances by a forced relocation of their mother from the Netherlands to Suriname or by a rupturing of their relationship with her as a result of future separation. In this connection, the Court observes that the applicant's husband provides for the family by working full-time in a job that includes shift work. He is, consequently, absent from the home on some evenings. The applicant — being the mother and homemaker — is the primary and constant carer of the children who are deeply rooted in the Netherlands of which country — like their father — they are nationals. The materials in the case file do not disclose a direct link between the applicant's children and Suriname, a country where they have never been.

In examining whether there were insurmountable obstacles for the applicant and her family to settle in Suriname, the domestic authorities had some regard for the situation of the applicant's children (see paragraphs 23 (under 2.19 and 2.21), 28 and 34 (under 2.4.5) above). However, the Court considers that they fell short of what is required in such cases and it reiterates that national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any such removal in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see above § 109). The Court is not convinced that actual evidence on such matters was considered and assessed by the domestic authorities. Accordingly, it must conclude that insufficient weight was given to the best interests of the applicant's children in the decision of the domestic authorities to refuse the applicant's request for a residence permit.

The central issue in this case is whether, bearing in mind the margin of appreciation afforded to States in immigration matters, a fair balance has been struck between the competing interests at stake, namely the personal interests of the applicant, her husband and their children in maintaining their family life in the Netherlands on the one hand and, on the other, the public order interests of the respondent Government in controlling immigration. In view of the particular circumstances of the case, it is questionable whether general immigration policy considerations of themselves can be regarded as sufficient justification for refusing the applicant residence in the Netherlands.

The Court, whilst confirming the relevant principles set out above (see paragraphs 106-109), finds that, on the basis of the above considerations (see paragraphs 115-120) and viewing the relevant factors cumulatively, the circumstances of the applicant's case must be regarded as exceptional. Accordingly, the Court concludes that a fair balance has not been struck between the competing interests involved. There has thus been a failure by the Netherlands authorities to secure the applicant's right to respect for her family life as protected by Article 8 of the Convention.

There has accordingly been a violation of Article 8 of the Convention.