EHRM, 28-07-2020, nr. 25402/14

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

The applicant was born in Indonesia. His mother was Indonesian; she died in January 1991. On 13 April 1991 the applicant, at the age of almost four, travelled to the Netherlands on an Indonesian passport containing a tourist visa for the Netherlands, together with his presumed father, who was a Dutch national. The local police were notified of his presence in the Netherlands on 13 May 1991. On 18 July 1991 the validity of the tourist visa was extended until 1 August 1991, but the applicant stayed in the Netherlands after that date. His presumed father subsequently returned to Indonesia at frequent intervals, leaving the applicant in the care of a paternal uncle and aunt who were both Dutch nationals. His presumed father died in April 1999. The applicant continued living with the aforementioned aunt and uncle, to whom he refers as foster parents, and he grew up together with their four children.

The applicant attended primary and secondary school and completed pre-vocational secondary education (voorbereidend middelbaar beroepsonderwijs) in metal works in 2002/03. At some subsequent point in time he enrolled in culinary school (koksopleiding).

On 13 August 2004 the applicant, suspected of having committed an assault on 5 February 2004, agreed to an out-of-court settlement (transactie) involving ten hours of community service.

Also in 2004, the applicant's foster father was informed by a local truant officer that the applicant was required to submit an extract from his registration in the Municipal Personal Records Database (Gemeentelijke Basisadministratie) to his school. It then transpired that the applicant was not registered in that database. The applicant's presumed half-sister (a daughter from a previous marriage of his presumed father) subsequently found amongst her father's possessions the applicant's Indonesian passport that had been issued in 1991. Having thus become aware that he was staying in the Netherlands without a legal status, the applicant, who felt he was a victim of circumstance, started experiencing problems and stress and he took to using drugs for a while. He was unable to concentrate and discontinued the training course in which he was enrolled.

On 1 August 2006 the applicant was convicted of indecent assault, defined as a criminal offence in Article 246 of the Criminal Code (Wetboek van Strafrecht; see paragraph 29 below) and four counts of attempted indecent assault, committed in September and October 2005, and he was sentenced to 240 hours' community service, a twenty-two hour training order and a six-month prison sentence suspended for a probationary period of two years. Four of these offences involved the applicant having followed young women whilst they were cycling, with the aim of making them stop or fall and tolerate him perpetrating lewd acts on them.

On 28 September 2006 the applicant applied for a temporary residence permit for the purpose of extended family reunion (verruimde gezinshereniging) with his foster father. He submitted, inter alia, that he had always assumed that he had Dutch nationality.

His application was rejected by a decision of the Deputy Minister of Justice (Staatssecretaris van Justitie; ‘the Deputy Minister’) of 18 December 2007, which was sent to the applicant's lawyer on 28 December 2007. In response to the applicant's statement that he had assumed he was a Dutch national, the Deputy Minister noted that the applicant had not submitted any documents to substantiate this alleged Dutch nationality despite having been given the opportunity to do so, and he was therefore to be considered as an alien. The Deputy Minister held, inter alia, that because of the nature and seriousness of the offences he had committed, the applicant constituted a danger to public order, which was a ground for rejecting an application for a residence permit under domestic law (see paragraph 26 below). Next, the Deputy Minister examined whether obligations arising from international agreements nevertheless required that the application for a residence permit be granted (see paragraph 27 below). To the extent that it had to be assumed that family life within the meaning of Article 8 of the Convention existed between the applicant and his uncle, the Deputy Minister considered that the refusal to allow the applicant to reside in the Netherlands did not entail divesting him of any residence permit that had enabled him to enjoy family life in the Netherlands. It had, moreover, not appeared that there were any facts or circumstances of such seriousness that the right to respect for family life entailed a positive obligation on the part of the State to admit the applicant. The Deputy Minister noted that the applicant had been living in the Netherlands since he was four years old and that it had been argued that he was completely integrated into Dutch society; however, no rights could be derived from a period of residence without a residence permit.

The applicant lodged an objection (bezwaar).

On 27 June 2008 the applicant was convicted of two counts of indecent assault and three counts of attempted indecent assault, committed in May, November and December 2007, and was sentenced to fifteen months' imprisonment, of which five months were suspended for a probationary period of two years. Four of these offences involved the applicant having followed young women whilst they were cycling and making them stop or fall, or attempting to do so, in order to perpetrate lewd acts on them. In addition, the execution of the six-month suspended prison sentence imposed on 1 August 2006 (see paragraph 9 above) was ordered.

After a hearing before an official board of inquiry (ambtelijke hoorcommissie) on 22 May 2008, the applicant's objection against the refusal of his application for a residence permit was rejected by the Deputy Minister on 17 July 2008.

The Deputy Minister firstly observed that the applicant had once again been convicted (see paragraph 13 above); the grounds for rejecting the application for a residence permit thus pertained. As for the applicant's claims under Article 8 of the Convention, the Deputy Minister maintained her previous position. In that context she considered it decisive that the applicant had never been lawfully resident in the Netherlands. His presumed biological father or his foster parents ought to have ensured that the applicant obtained lawful residence after his arrival in the Netherlands; this responsibility could not be passed on to the national authorities. Given that an application for a tourist visa had been made prior to the applicant's arrival, the Deputy Minister failed to see how the presumed biological father or the foster parents could not have realised that the applicant was not a Dutch national.

When it came to balancing the interests at stake, the Deputy Minister attached decisive importance to the nature and seriousness of the offences which the applicant had repeatedly committed; the interest in the protection of public order therefore outweighed the applicant's interest in being able to enjoy family and private life in the Netherlands. According to the Deputy Minister, there was no objective impediment to family life being continued in Indonesia. Holding, moreover, that the applicant was an adult who should be considered capable of managing by himself in his country of origin, the Deputy Minister found no indications that he had more than the usual dependence on, and emotional ties with, his foster parents. The fact that the applicant might experience certain problems in adapting to life in Indonesia, where he had no family and did not speak the language, was not considered an unacceptable consequence of the decision. In any event, contact between the applicant and his foster parents need not be ruptured as the latter could visit him in Indonesia.

On 21 July 2008 the applicant lodged an appeal with the Regional Court of The Hague, sitting in Zwolle. In support of his appeal he submitted, inter alia, school reports and certificates to the effect that he had successfully participated in various sporting activities, a traffic examination and a first-aid course.

On 5 February 2009 the applicant submitted an application under the Kingdom Act on Netherlands Nationality (Rijkswet op het Nederlanderschap) to the Regional Court of The Hague for an order confirming that, as from his birth, he had been in possession of Dutch nationality.

The Regional Court of The Hague, sitting in Zwolle, decided on 10 February 2009 to adjourn the proceedings on the appeal against the refusal to grant the applicant a residence permit until his request for confirmation of Dutch nationality had been decided.

On 14 February 2011 the Regional Court of The Hague rejected the application for an order confirming that the applicant had acquired Dutch nationality at birth. Having established that the applicant's mother and his presumed biological father had not been married to each other at the time of the applicant's birth, and noting further that they had not married subsequently either but that the applicant's presumed father had married another woman on 4 March 1988 and that the applicant had not been registered as a child of the presumed father on the latter's personal record card (persoonskaart), the Regional Court found that it had not been satisfactorily demonstrated that he had obtained Dutch nationality at birth through descent from a Dutch father.

While the applicant's main address was still with his foster parents, he also started living with another uncle in a different part of the country, where it was possible for him to carry out unpaid, non-commercial activities in order to establish some structure to his days. The case file does not disclose when he moved there, but according to an email from his foster father to his lawyer dated 7 June 2011, the applicant had done so ‘recently’.

The applicant's appeal against the decision to refuse him a residence permit was upheld by the Regional Court of The Hague, sitting in Zwolle, on 30 January 2012. It found, firstly, that it was not in dispute that there was family life within the meaning of Article 8 of the Convention between the applicant and his foster parents. Next, it noted that the case did not concern an interference within the meaning of Article 8 § 2 of the Convention since the applicant had not been divested of a residence permit which had enabled him to enjoy private or family life in the Netherlands. That being the case, it followed from the established case-law of the European Court of Human Rights that a balancing of interests was to be conducted in order to assess whether, in the concrete circumstances of the case, the right to respect for family life within the meaning of Article 8 nevertheless entailed a positive obligation on the part of the State to allow the applicant to remain in the country. The Regional Court considered that the Deputy Minister's decision did not demonstrate that an express and transparent balancing exercise between all the interests at stake had been conducted. It noted that the Deputy Minister had summarily reasoned that what was decisive was that the applicant constituted a danger to public order and that he had never held a residence permit enabling him to enjoy family life in the Netherlands, without indicating in a careful and sufficiently transparent manner what weight was to be attached to the circumstances that the applicant had grown up in the Netherlands, had received his schooling in that country and had built up his social, cultural and family ties there.

The Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie , Integratie en Asiel; the successor to the Deputy Minister of Justice) lodged a further appeal against the ruling of the Regional Court. This further appeal was upheld by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), which, in a ruling of 13 November 2013, held as follows, in so far as relevant:

The Administrative Jurisdiction Division therefore quashed the decision of the Regional Court and itself dismissed the appeal which the applicant had lodged with the Regional Court.

On 1 August 2016 the applicant left the Netherlands for Indonesia with assistance from the International Organization for Migration (IOM). Just prior to his departure, at Amsterdam Schiphol Airport, he signed an IOM departure declaration, by which he agreed to the discontinuation of any pending proceedings aimed at obtaining a residence permit (beëindiging van nog openstaande verblijfsrechtelijke procedures).

Pursuant to section 16(1)(d) of the Aliens Act 2000 (Vreemdelingenwet 2000), an application for a temporary residence permit may be rejected if the alien poses a threat to public order or national security. An alien is considered to constitute a threat to public order if, inter alia, he or she has been convicted of a crime (misdrijf) and has been sentenced to an unsuspended term of imprisonment or if he or she has agreed to an out-of-court settlement in relation to a crime (section 3.77(1)(c) of the Aliens Decree 2000 (Vreemdelingenbesluit 2000)).

Section 13 of the Aliens Act 2000 states that aliens may qualify for admission to the Netherlands on the basis of obligations arising from international agreements. Respect for private and/or family life, as enshrined in Article 8 of the Convention, constitutes such an obligation.

Section B2/10.1. of the Aliens Act 2000 Implementation Guidelines as in force at the relevant time provided that, before the refusal of an application for a residence permit for the purpose of family reunion or family formation, an assessment was to be carried out as to whether such a refusal would be compatible with the right to respect for private and family life as guaranteed by Article 8 of the Convention. Section B2/10.2.2. specified that, in general, the decision to refuse a residence permit to an alien who had not previously held one was not considered to amount to interference with his or her right to respect for family or private life, even if the alien had in fact already been staying in the Netherlands for some time and had been enjoying family and/or private life there. If an alien had started enjoying family life during a time when no residence permit had been required or pending a decision on an application for a residence permit, he or she had done so at his or her own risk and in the knowledge that he or she might subsequently have to leave the Netherlands. In such cases the national authorities had not expressly consented — by means of the granting of a residence permit — to that alien's continuous stay in the Netherlands, such as to enable him or her to enjoy family life there. Whilst in such a situation a balancing exercise between the interests of the State and those of the alien should nevertheless be carried out, the fact that an alien had never previously been lawfully resident would be a factor counting against him or her.

Article 246 of the Criminal Code reads as follows:

The Government requested the Court to strike the application out of its list of cases given that the applicant had left the Netherlands of his own volition and had agreed to end all pending proceedings aimed at obtaining a residence permit in the Netherlands.

The applicant submitted that he had not genuinely wanted to leave the Netherlands but had felt in despair at not being able to participate in society. He had been presented with the IOM departure declaration just prior to his departure to Indonesia and had signed it in order to qualify for that organisation's financial assistance; he had had no intention, however, of discontinuing the present proceedings.

The Court considers that this issue falls to be examined in the light of Article 37 § 1 of the Convention, which reads as follows in so far as relevant:

Article 37 § 1 (a) of the Convention covers the situation where the applicant wishes to withdraw his or her application. While it is true that an applicant's undertaking to withdraw from proceedings which he or she has initiated before the Court is capable of justifying the striking out of that application, in accordance with Article 37 § 1 of the Convention, such a waiver, in order to be valid, must be unequivocal (see Association SOS Attentats and de Boery v. France (dec.) [GC], no. 76642/01, § 30, ECHR 2006-XIV).

The Court observes that in the IOM departure declaration signed by the applicant he agreed to the discontinuation of ‘any pending proceedings aimed at obtaining a residence permit’ (see paragraph 25 above). It is not immediately apparent to the Court that the terms of this agreement cover the present proceedings. The Court accepts that the applicant's ultimate aim in lodging an application under Article 34 of the Convention will have been for the Dutch authorities to allow him to reside in the Netherlands by granting him a residence permit. However, his application to the Court, in which he complained of a violation of his right to respect for his private and family life as guaranteed by Article 8 of the Convention, cannot be equated with an application for a residence permit. Firstly, neither Article 8 nor any other provision of the Convention and its Protocols guarantees, as such, a right to a residence permit (see Bonger v. the Netherlands (dec.), no. 10154/04, 15 September 2005). Moreover, in accordance with Article 19 of the Convention, the only task of the Court is to ensure the observance of the obligations undertaken by the Parties in the Convention. When the Court concludes that a State has breached the Convention, that State is in principle free to choose the means whereby it will comply with the Court's judgment (see, amongst other authorities, Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 80, ECHR 2014). Accordingly, the Court does not have the power to direct that a residence permit be issued to an applicant.

For these reasons the Court is not persuaded that it can be said with certainty that the applicant bound himself in the departure declaration to withdraw from the present proceedings. As the applicant has subsequently expressly stipulated that he had no intention of doing so (see paragraph 31 above), there can be no question of the Court striking the application out of its list of cases in application of Article 37 § 1 (a) (see Association SOS Attentats and de Boery, cited above, § 31).

Although the finding above does not preclude the possibility of applying sub-paragraphs (b) and (c) of the first paragraph of Article 37, which does not require the applicant's consent (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 41, 24 October 2002), the Court perceives of no good reason to do so. The matter has clearly not been resolved, and neither has any redress been provided for the effects of a possible violation of the Convention (ibid., § 42). Finally, the Court sees no circumstances that would lead it to conclude that ‘for any other reason … it is no longer justified to continue the examination of [it]’.

On the above basis, the Court concludes that the Government's request to strike the application out of its list of cases must be rejected.

The applicant complained that the refusal to allow him to reside in the Netherlands constituted a violation of his right to respect for his private and family life as guaranteed by Article 8 of the Convention, which reads as follows:

In the present case, I was not able to agree with the majority and thus voted for finding a violation of Article 8 of the Convention, for the reasons set out below.

The case may be summarised as follows. The applicant was born in 1987 in Indonesia. His mother was Indonesian, but died in 1991. The same year his presumed father, a Dutch national, brought him to the Netherlands, where the applicant lived in the care of a paternal uncle and aunt, both Dutch nationals. His presumed father returned to Indonesia and died in 1999. In 2004 the applicant became aware that he had never acquired Dutch citizenship, although he and his foster parents had always assumed him to be a Dutch national. This explains why the applicant started experiencing problems and taking drugs. He was convicted several times of assault, indecent assault and attempted indecent assault, his last offence dating back to December 2007. In 2006 he had applied for a residence permit. While his application in 2008 was rejected by the Deputy Minister of Justice, the Regional Court in 2012 upheld the applicant's appeal. However, in 2013 the Council of State quashed that decision and confirmed the Deputy Minister's decision.

I am in full agreement with the presentation in the judgment of the Court's general principles under Article 8 of the Convention relating to immigration (see paragraphs 51–58). The Court in its case-law has in particular dealt with two different situations. On the one hand, cases involving the expulsion of settled migrants — that is, where persons have already been formally granted a right of residence in a host country and this right has subsequently been withdrawn (see, for example, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII; Maslov v. Austria [GC], no. 1638/03, ECHR 2008; A.A. v. the United Kingdom, no. 8000/08, 20 September 2011; Levakovic v. Denmark, no. 7841/14, 23 October 2018; and I.M. v. Switzerland, no. 23887/16, 9 April 2019). This situation gives rise to negative obligations for States, and in that respect the Court has set out relevant criteria for assessing compatibility with Article 8 of the Convention, the so-called Üner criteria (see Üner, cited above, §§ 54–60, and Boultif v. Switzerland, no. 54273/00, § 48, ECHR 2001-IX). On the other hand, positive obligations arise for States in cases concerning, inter alia, the denial of a residence permit to individuals already present in the territory of the respondent State (see, for example, Jeunesse v. the Netherlands [GC], no. 12738/10, 3 October 2014; B.A.C. v. Greece, no. 11981/15, 13 October 2016; Abuhmaid v. Ukraine, no. 31183/13, 12 January 2017; Ejimson v. Germany, no. 58681/12, 1 March 2018; and Hoti v. Croatia, no. 63311/14, 26 April 2018).

In the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and the community as a whole, and it enjoys a certain margin of appreciation in this respect (see paragraph 54 of the judgment). The Court has therefore also acknowledged in admission cases, where the foreign national is already in the host country, that the positive and negative obligations do not lend themselves to precise definition and that the applicable principles are similar (see Osman v. Denmark, no. 38058/09, § 53, 14 June 2011; Nunez v. Norway, no. 55597/09, § 68, 28 June 2011; and Jeunesse, cited above, § 106). Accordingly, in Nunez (cited above, § 69) the Court did not find it necessary to determine whether in that case the impugned decision constituted an interference with the applicant's rights under Article 8 or was to be seen as involving an allegation of failure on the part of the respondent State to comply with a positive obligation. Where the case concerns (factual) residence in the host country without a valid residence permit, it can be considered neither a case of purely positive obligations nor one of purely negative obligations; it is rather a kind of ‘hybrid obligation case’ (see Mark Klaassen, ‘Between facts and norms: Testing compliance with Article 8 ECHR in immigration cases’, NQHR 37(2), p. 164 (2019)). Against this background, it seems quite artificial in such admission cases to formally distinguish between positive and negative obligations. Consequently, although the Court has established the Üner criteria in the context of expulsion cases, as a matter of fact it has also applied most of these criteria — albeit without explicitly acknowledging it — in cases concerning residence permits, when in the balancing exercise it has taken into account the interests of the individual, most of which are reflected in the Üner criteria.

When applying the Üner criteria, the Court has held that the weight to be attached to each criterion will vary according to the specific circumstances of the case (see Maslov, cited above, § 70), and it has thus refrained from qualifying the relative weight to be accorded to each criterion in the individual assessment.

The nature of the crimes committed by the person concerned is of course of particular relevance, especially when the offences were serious in nature, meaning that they had or could have had serious consequences for the lives of others. In this respect, violent crimes, drug-related crimes and other similar serious crimes weigh heavily to an alien's detriment. However, this aspect needs to be balanced against other aspects of his or her behaviour in the specific case which may mitigate to some extent the weight of previous criminal convictions, such as the fact that the offences were to be regarded as mere acts of juvenile delinquency, as well as the period of time which has passed since the offences were committed and the person's conduct since. As a result of this balancing exercise, there will, of course, be cases where the nature and seriousness of the offence committed or the person's offending history outweighed all other criteria to be taken into account (see, for example, Üner, cited above, §§ 62–64, and Salem v. Denmark, no. 77036/11, § 76, 1 December 2016).

Another important principle established in the Court's case-law is referred to in paragraph 54 of the majority's judgment, but is not further elaborated on, namely the State's margin of appreciation, which goes hand in hand with European supervision. The Court's task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual's rights protected by the Convention on the one hand and the community's interests on the other (see, for example, Boultif, cited above, § 47, and Levakovic, cited above, § 38). The margin of appreciation has generally been understood to mean that, where independent and impartial domestic courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the applicant's personal interests against the more general public interest in the case, it is not for the Strasbourg Court to substitute its own assessment of the merits for that of the competent national authorities. The only exception to this is where there are shown to be strong reasons for doing so (see Ndidi v. the United Kingdom, no. 41215/14, § 76, 14 September 2017). In line with the principle of subsidiarity, it is therefore not the Court's task to take the place of the competent authorities in assessing the circumstances of a specific case, but to ascertain whether the domestic courts secured the guarantees set forth in Article 8, and whether that was sufficiently reflected in their reasoning in order to enable the Court to carry out the European supervision entrusted to it (see El Ghatet v. Switzerland, no. 56971/10, § 47, 8 November 2016).

I would start with the Regional Court's assessment in January 2012 of the Deputy Minister's decision to reject the applicant's application for a residence permit (see paragraph 22 of the majority's judgment). The court first referred to the Strasbourg Court's case-law under Article 8 of the Convention and noted that the case concerned the State's positive obligation. It then considered ‘that the Deputy Minister's decision did not demonstrate that an express and transparent balancing exercise between all the interests at stake had been conducted’. It also observed that she ‘had summarily reasoned that what was decisive was that the applicant constituted a danger to public order and that he had never held a residence permit enabling him to enjoy family life in the Netherlands, without indicating in a careful and sufficiently transparent manner what weight was to be attached to the circumstances that the applicant had grown up in the Netherlands, had received his schooling in that country and had built up his social, cultural and family ties there’ (ibid.).

The Council of State in November 2013 disagreed with the Regional Court and upheld the Deputy Minister's decision (see paragraph 23 of the majority's judgment). After mentioning the Court's case-law concerning the balancing exercise, it referred to the judgment in Butt v. Norway (no. 47017/09, 4 December 2012), according to which ‘strong immigration policy considerations would in principle militate in favour of identifying children with the conduct of their parents, failing which there would be a great risk that parents exploited the situation of their children in order to secure a residence permit for themselves and for the children’. That entailed the conclusion in Butt that the aliens' removal would be incompatible with Article 8 only in ‘exceptional circumstances’ (ibid., § 79). Although the Council of State recognised that in the present case the situation was different because the foster parents' status as Dutch nationals did not depend on the applicant's residence permit, it only characterised that factor as not constituting a ‘decisive’ element. That was not sufficient, however. In the present case, this element was of no relevance at all, not simply ‘not decisive’, and should therefore have been completely discarded. On the contrary, with the reference to the Butt jurisprudence the national assessment seems to have been put on the wrong track from the outset.

Subsequently, the Council of State had regard to the age at which the applicant came to the host country — he was 4 years old — and the duration of his stay there — seventeen years when the Deputy Minister took his decision and twenty-two years at the time of the Council of State's decision — which led it to hold that he had ‘very strong ties’ with the host country. I would agree with that. However, these weighty aspects in favour of the applicant were immediately wiped away by the formal argument that there was no positive obligation on the State to allow the alien to reside in the country. In other words, instead of genuinely balancing all the relevant criteria and reaching a conclusion only at the very end of the assessment, the court had already made its finding at that early stage. Unsurprisingly, these criteria did not reappear at any later stage in the domestic assessment.

The judgment continued in a similar manner, first by referring to the offences committed by the applicant. Here, of course, I concede that the offences were of a serious nature, that the applicant was a recidivist, that he committed the offences at a time when he was aware that he did not have a residence permit, and that he was already a (young) adult when he committed the most serious offences. No doubt these elements were of great importance in the balancing exercise and needed to be taken into account to the applicant's detriment. However, in the face of these criteria, all other elements, to the extent that they had been considered by the domestic authorities at all, were again put aside. For example, while the Council of State mentioned the fact that the applicant did not have any family in Indonesia and did not know the language spoken there, it did not attach any relevant weight to these aspects, but instead observed in a rather laconic manner that given his adult age, he should be capable by himself of managing these problems of adjustment.

After having wiped away all criteria speaking in favour of the applicant's application for a residence permit, only the criterion of the offences committed remained on the one side of the balance, whereas the court had already got rid of the elements that should have been placed on the other side of the balance. As a result, the balance clearly fell on one side, entailing the rejection of the application.

What is more, both the Deputy Minister and the Council of State, to my mind, not only attached insufficient weight — if any weight at all — to the above-mentioned criteria in the applicant's favour, but omitted to consider some other aspects which are relevant in the weighing up of the individual's interests against the community's interests.

Firstly, the applicant, apparently without any particular irregularities, attended primary and secondary school and completed pre-vocational secondary education, before enrolling in culinary school. It was only after having become aware of his precarious residence status that he started experiencing problems and stress and taking drugs (see paragraph 8 of the majority's judgment). While that, of course, is no justification for committing crimes, it nevertheless explains partly why he suddenly started to go down the criminal path for a certain period.

Secondly, the Council of State did not take into account some important criteria according to the Court's case-law, namely the time that had elapsed between the last offence committed (December 2007) and the final domestic decision (November 2013) and the applicant's irreproachable conduct since the end of 2007.

Thirdly, in the domestic balancing exercise another element should have been assessed as relevant. The present case can be considered neither a case of purely positive obligations nor one of purely negative obligations (see paragraph 4 above). The majority accepted, at least, that the applicant qualified neither as a settled migrant, within the meaning of the Court's case-law, nor as an alien who had to have been aware of the precariousness of his immigration status from the outset, and therefore the assessment had to be carried out from a neutral starting-point, taking into account the specific circumstances of the applicant's case (see paragraph 61 of the judgment). Apart from the fact that the starting-point of the Deputy Minister and the Council of State could not be considered ‘neutral’, it seems to me that the applicant's situation, from a factual point of view, was very close to that of a ‘settled migrant’, since he had spent his life from the age of four in the host country. Although, legally speaking, he was not a ‘settled migrant’, because his stay in the host country was apparently never ‘lawful’, this legal aspect should not be overstated in the specific circumstances of the present case. In this connection, it needs to be emphasised that the host country had tolerated the applicant's residence since 1991, including the period in which he had undergone primary and secondary education. The authorities must have known of his legal status, but it was only in 2004, when the applicant was 17 years old, that the authorities started to formally enquire about his nationality, and it was only in 2008, when he was 21 years old, that the decision not to grant him a residence permit was taken.

The fourth, and to some extent related, aspect should, to my mind, also have had a bearing in the assessment of all the relevant circumstances. As already mentioned, when the applicant started to build up his ties with the host country, he was completely unaware that neither his presumed father nor his foster parents had taken steps to regularise his stay there. Had they taken those steps, the applicant would easily have become a Dutch national and could under no circumstances, irrespective of how badly he had behaved, have been refused residence in or been expelled from the Netherlands. The same would have been the case if, for example, not his presumed father but his mother had had Dutch nationality or if the presumed father had been married to the applicant's mother at the time of his birth. He would automatically have been a Dutch national with legal residence status in the Netherlands. My argument in this respect is that the applicant was liable to be denied a residence permit, whereas he would not have been if any of the above eventualities had occurred. How can the fact that the applicant was liable to be denied residence in the country in which he had been living since the age of four be justified when he would not have been liable had any one of these eventualities occurred? This distinction is based solely on accident and on a situation for which the applicant is not responsible at all (see, in a comparable context, the judgment of 19 October 2016 of the Supreme Court of the United Kingdom in R v Secretary of State for the Home Department; see also the judgment of 20 May 2020 of the German Constitutional Court, 2 BvR 2628/18). The domestic assessment in the present case is lacking any considerations on such justification.

Fifthly, and finally, let me reiterate an argument which has been made, inter alia, in several separate opinions. I concede that it is more moral than legal in nature, but nevertheless it may have a place in the overall assessment of the case. In that regard, I refer to the concurring opinion of H.G. Schermers, joined by G.H. Thune, in Beldjoudi v. France (6 September 1990, opinion of the Commission, Series A no. 234-A), the dissenting opinion of Judge Morenilla in Boujlifa v. France (21 October 1997, Reports of Judgments and Decisions 1997-VI) and the joint concurring opinion of Judges Bianku and Lemmens in Levakovic (cited above). If the applicant is denied residence in the Netherlands, consequently at a given time he must leave the country and move to another country, most probably his country of origin, the only State in which he can settle down without having to fulfil further conditions. However, why should that State, or any other State with which the applicant has no ties at all, bear more responsibility than the Netherlands, where he has lived nearly his whole life? To borrow the words of H.G. Schermers, if there is one country responsible for the upbringing and the criminal behaviour of the applicant, that country must be considered to be the Netherlands. It would be more just for the Netherlands ‘to keep both the good and the bad immigrants’, at least in a case such as the present one in which it is only by accident that the applicant has not become a Dutch national, whereas if he had had such a legal status, he could have stayed in the country that corresponded to his real home.

For all these reasons, and going back to the Regional Court's decision, I would agree with that court that the Deputy Minister's decision ‘did not demonstrate that an express and transparent balancing exercise between all the interests at stake had been conducted’, and that it did not indicate ‘in a careful and sufficiently transparent manner what weight was to be attached to the circumstances that the applicant had grown up in the Netherlands, had received his schooling in that country and had built up his social, cultural and family ties there’ (see paragraph 8 above). Unfortunately, the Council of State did not carry out a genuine overall assessment and balancing exercise of all relevant aspects of the applicant's case either. Through their approach, both bodies showed instead that their decision on the application for a residence permit had been predetermined from the outset. In such a situation, no fair balance was struck at national level.

As set out in paragraph 7 above, the Court's task, in principle, is to ascertain whether the national authorities secured the guarantees set forth in Article 8 of the Convention and to carry out the European supervision entrusted to it. If the reasoning of domestic decisions were found to be insufficient, without a real balancing exercise between the interests at stake, this would be contrary to the requirements of that Article. The Court confirmed this, for example, in I.M. v. Switzerland (no. 23887/16, §§ 77–78, 9 April 2019), where it held, inter alia:

In this situation the Court found a kind of ‘procedural’ violation of Article 8 owing to the insufficient balancing exercise and reasoning by the domestic authorities and courts, thus preventing the Court from carrying out its European supervision (ibid.; see also Makdoudi v. Belgium, no. 12848/15, § 97, 18 February 2020; for a case of family reunification, and therefore positive obligations, see El Ghatet, cited above, § 52). To my mind, in the present case the Court could and should have taken the same approach. That would also have been in accordance with the principle of the margin of appreciation, which is accorded only if the national courts have carefully examined the facts, applying the relevant human rights standards consistently with the Convention and its case-law, and adequately balanced the competing interests (see paragraph 7 above). That was not the case here, and therefore the margin of appreciation could not be relied on.

However, there does in fact exist a different line of case-law which does not follow this ‘procedural’ approach. Instead, in the cases concerned the Court, after having found that the assessment carried out at national level was insufficient, has substituted its own assessment of the merits for that of the competent national authorities, provided that there were shown to be strong reasons for doing so (see paragraph 7 above, with reference to Ndidi, § 76), thereby departing from the principle of subsidiarity.

Even following this line of case-law, I could not support the majority's finding of no violation in the present case. Firstly, I would observe that their reasoning is somewhat contradictory. If the majority actually were of the opinion that the national authorities had conducted an examination of the applicant's case in a reasonable manner in compliance with the Court's criteria, they could and should have limited themselves to a proper supervision of the balancing exercise performed at domestic level. However, that is not what the majority did. Instead, from the outset they engaged in their own balancing exercise, without having established that there existed strong reasons for doing so, while only at the very end of their own assessment referring to the domestic decision-making. Secondly, the majority's assessment, to my mind, suffers from the same shortcomings as the examination of the applicant's case by the Deputy Minister and the Council of State (see paragraphs 9–19 above). In that regard, I am not convinced that the nature and seriousness of the offences committed outweighed the other criteria to be taken into account in the applicant's favour. In my opinion, neither at national level nor at the Strasbourg Court has a fair balance been struck.

For the above reasons, I have come to the conclusion that in the present case there has been a violation of Article 8 of the Convention. This would be, first and foremost, a ‘procedural’ violation, because the domestic authorities failed to carry out a thorough and fair balancing exercise between the competing interests and to set out convincing reasons to justify their decision. Alternatively, the violation would be a substantive one, because the majority likewise omitted to conduct a genuine and convincing balancing exercise between the competing interests and to take into account not only the seriousness of the offences committed, but also the applicant's specific situation and all the elements speaking in his favour.