EHRM, 10-01-2012, nr. 22251/07

In the view of the Government, the main issue was whether the applicant ought to have been exempted from paying administrative charges as a precondition for the processing of his request for a residence permit. It was not whether the applicant had wrongly been denied a residence permit, that being an issue which the immigration authorities had been prevented from considering.

Formal requirements as such were not, in their contention, contrary to the Convention. Domestic procedure could not function without time-limits and financial charges, regardless of the nature of the issue at stake. The only exception was, in their opinion, in case of ‘excessive formalism’; of which there had been none in the present case.

In fact, domestic procedure expressly provided for an exemption from the obligation to pay administrative charges if requiring the payment of such charges would be unreasonable in a particular case. Domestic law thus offered a measure of flexibility. All that was asked of a foreign national claiming peculiar hardship was documentary evidence.

The evidence proffered by the applicant, such as it was, had been insufficient. He ought to have submitted a declaration of income and assets verified by the municipality. This would have specified not only family income, but also regular expenditure and any assets which the applicant and his wife might have held. He ought in addition to have presented documentary evidence of some sort to show that he and his wife had tried to obtain the necessary funds, whether through work (which his wife, as a Netherlands national, could lawfully seek) or from friends and relations. It was not enough merely to state that social-security rules required proof of the applicant's wife's attempts to seek employment: social-security rules and exemption from paying administrative charges were not related. This had been the position of the domestic authorities throughout the domestic proceedings, with which the competent tribunals had concurred.

Finally, the applicant remained free to submit a new request and either pay the administrative charge or submit the evidence required for an exemption to be granted.

The applicant submitted that the respondent had in fact practised excessive formalism. He submitted that the immigration authorities used the municipalities as their ‘front office’ at the relevant time, and that it was also the municipality which was responsible for implementing the social-security legislation under which his wife enjoyed what income she had. The municipality had available to it a variety of means to check the financial situation of social-security recipients, including access to their bank details. A declaration of assets and means verified by the municipality would therefore have added nothing to what the municipality already knew.

Other than his wife's social-security benefits, the applicant had no source of funds. Family in the Netherlands he had none, nor anyone who would be prepared to advance him the money needed or indeed could be expected to.

The Court finds it more appropriate to consider the case under Article 13 of the Convention.

In the light of their position under Article 8 of the Convention, the Government argued that the applicant had no ‘arguable claim’ such as to bring Article 13 into play.

In the alternative, they argued that the applicant had in fact had an effective legal remedy against the decision not to process his request; however, given his conduct, the domestic proceedings had never proceeded to a follow-up phase in which the legal remedies could have produced any useful effect. While the applicant had explored the procedural avenues open to him, he had failed to convince the domestic authorities, including the domestic courts, of his inability to pay the administrative charge.

In the further alternative, they argued that the essence of the complaint was whether the administrative charge constituted a bar on access to the proceedings to obtain a residence permit. In this sense, the problem before the Court was similar to that of the effect of court fees on access to court. While reminding the Court that court fees were an issue under Article 6 of the Convention, which did not apply to immigration proceedings (Maaouia v. France [GC], no. 39652/98, § 38, ECHR 2000-X), the Government expressed the view that the EUR 830 administrative charge was not excessive.

The applicant devoted no separate argument to this issue.

The Court takes the view that the essential question in the case is whether the applicant had effective access to the administrative procedure by which he might, subject to fulfilling the conditions prescribed by domestic law, obtain a residence permit which would allow him to reside lawfully with his family in the Netherlands.

As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an ‘arguable complaint’ under the Convention and to grant appropriate relief. The scope of the Contracting States' obligations under Article 13 varies depending on the nature of the applicant's complaint; however, the remedy required by Article 13 must be ‘effective’. In order to be effective, the remedy required by Article 13 must be available in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see, among many other authorities and mutatis mutandis, M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 288–290, 21 January 2011).

In the light of its decision set out in paragraph 26 above, the Court considers that for purposes of Article 13 the applicant had an ‘arguable’ case under Article 8 of the Convention.

There is no doubt that the procedure for obtaining a residence permit was ‘effective in law’ in that the applicant was fully entitled to make use of it and in that it was capable of yielding the result sought by the applicant, namely a right under domestic law for him to reside in the Netherlands with his family. The issue is whether it was ‘available in practice’, given the financial threshold which the applicant states he found insuperable.

As the Government correctly state, the problem before the Court is similar to that of the effect of financial restrictions on access to court. That is a matter which the Court has had occasion to consider under Article 6 of the Convention (see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 61–67, Series A no. 316-B; Kreuz v. Poland, no. 28249/95, §§ 58–67, ECHR 2001-VI; Weissman and Others v. Romania, no. 63945/00, § 33–43, ECHR 2006-VII (extracts), as regards access to first-instance and appeal proceedings; Apostol v. Georgia, no. 40765/02, §§ 58–65, ECHR 2006-XIV as regards access to enforcement proceedings; and also, mutatis mutandis, Anakomba Yulav. Belgium, no. 45413/07, § 34–39, 10 March 2009, as regards denial of legal aid on discriminatory grounds).

As the Government — again, correctly — point out, Article 6 is not applicable to proceedings concerning the legality of an alien's residence, which pertain exclusively to public law (Slivenko v. Latvia (dec.) [GC], no. 48321/99, §§ 94–95, ECHR 2002-II (extracts)); moreover, the fact that such proceedings incidentally have major repercussions on the private and family life or on the prospects of employment of the person concerned cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6 § 1 of the Convention (Maaouia, cited above, § 38).

It does not follow, however, that principles of ‘access to court’ which the Court has developed under Article 6 § 1 of the Convention are irrelevant to Article 13. As the Court has pointed out many a time, the two Articles overlap, the former being a lex specialis of, and absorbing, the latter when the substantive right claimed is ‘civil’ in nature or the case concerns the determination of a ‘criminal charge’ (see, in particular, Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI).

Although in terms of procedural guarantees the requirements of Article 13 are less stringent than those of Article 6 (Kudła, loc. cit.), the very essence of a ‘remedy’ as that expression is to be understood for the purposes of Article 13 is that it should involve an accessible procedure.

Turning to the facts of the case, the Court first notes that it is not concerned with administrative charges in the abstract, nor with the level at which the administrative charge in issue was set. Its sole concern is whether it prevented the applicant from seeking recognition of his arguable claim under Article 8 of the Convention.

The Court then observes that an exemption from having to pay the EUR 830 administrative charge was available to the applicant in law, subject to his satisfying the Minister for Immigration and Integration that he was actually unable to raise the money himself (paragraph 19 above).

In the event, the applicant submitted a copy of his wife's most recent social assistance pay slip, issued by the Mayor and Aldermen of the municipality of Zoetermeer from which it appeared that the monthly income of his family was EUR 988.71. The Minister for Immigration and Integration nonetheless turned down his request on the ground that he had failed to submit a declaration of income and assets, verified by that same municipality, along with proof of his and his wife's attempts to obtain funds from other sources. It is therefore apparent that, for lack of these documents, the Minister never considered whether the applicant's state of indigence was such as to qualify him for an exemption from the obligation to pay the administrative charge.

The Court understands that social assistance is not vouchsafed to anyone who has not satisfied the Mayor and Aldermen of his or her inability to meet necessary living expenses (section 11(1) and (2); see paragraph 21 above). The Mayor and Aldermen have wide powers of verification to ensure that social assistance is not paid in excess of entitlement (section 64 (1) and (4); see paragraph 25 above). Moreover, the obligation to undertake the necessary effort to earn one's own living is enshrined in the Work and Social Assistance Act also (section 9; see paragraph 22 above); and the Mayor and Aldermen themselves recover any maintenance due to the recipient of social assistance from private third parties as appropriate (sections 60–62i); see paragraph 24 above). The Court therefore fails to understand what the additional documents demanded by the Minister would have added to the social assistance pay slip.

In the circumstances of the present case, characterised as they are moreover by the disproportion between the administrative charge in issue and the actual income of the applicant's family, the Court therefore finds that the extremely formalistic attitude of the Minister — which, endorsed by the Regional Court, also deprived the applicant of access to the competent administrative tribunal — unjustifiably hindered the applicant's use of an otherwise effective domestic remedy. There has therefore been a violation of Article 13 of the Convention.