EHRM, 02-06-2020, nr. 3138/16

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

The applicant is a Moroccan national who was born in the Netherlands, where he has lived all his life with his parents. He has seven siblings. All his family members are residing lawfully in the Netherlands and some were born there. The applicant's parents and five of his siblings also have Dutch nationality.

According to the applicant, he had held a temporary, renewable residence permit for the purpose of family reunion with his parents from the moment of his birth. According to the Government, the applicant had held this residence permit as of 11 December 2000. When that permit expired on 17 January 2005, no application to extend it was submitted until 15 February 2005. By a decision of 2 May 2005 a new temporary residence permit for the same purpose was granted, valid from 15 February 2005 to 14 February 2006. An objection (bezwaarschrift) lodged against this decision was rejected. The residence permit was most recently extended until 16 December 2014.

By a judgment of 24 October 2006 the Rotterdam Juvenile Court (kinderrechter) found the applicant guilty of street muggings committed between late 2005 and early 2006, and sentenced him to 150 days' juvenile detention, of which 82 days were suspended during a probationary period of two years, and imposed a sixteen-hour training order (leerstraf).

In 2007 the applicant agreed to an out-of-court settlement (transactie) and performed two hours' community service (werkstraf) for having set off fireworks on 29 December 2006.

The applicant was convicted on 6 May 2009 by the Rotterdam Juvenile Court of two counts of burglary from private houses committed in September and November 2007, and was sentenced to forty-two days' juvenile detention.

In 2009, when the applicant was sixteen years old, he and his family were involved in a serious car accident in Spain in which one of his sisters and an uncle died. Two other family members suffered extensive injuries. The applicant, who had been following an intermediate vocational training course on car mechanics, did not return to school after the accident. He worked in a call centre for a period of six to seven months.

On 11 August 2011 the applicant was found guilty by the full-bench (meervoudige kamer) of the criminal-law chamber of the Rotterdam Regional Court (rechtbank) of assault, theft accompanied by an act of violence against his father, domestic violence and criminal damage, committed in December 2010. He was sentenced to sixty days' juvenile detention.

On 21 October 2011, when he was eighteen years old, the applicant committed an armed robbery. He was convicted of this offence by the full-bench (meervoudige kamer) of the criminal law chamber of the ‘s‑Hertogenbosch Regional Court on 8 June 2012. That court sentenced him to three years’ imprisonment, with deduction of the time spent in pre-trial detention, and payment of 19,800 euros for material damage. The court further stipulated that it was to be examined whether, within the framework of a conditional early release, the applicant might be eligible for clinical treatment in an institution, as had been recommended by a psychiatrist. It appears from a psychiatrist's report in the case file that the applicant has a mild intellectual disability (licht verstandelijk beperkt).

On 20 December 2012 the applicant was transferred from prison to the forensic psychiatric ward of an institution for persons with a mild intellectual disability and behavioural problems, in order to work on improving his behaviour. However, his treatment in that institution, which was intended to take nine months, was terminated prematurely after eight months because of a lack of motivation and openness on the part of the applicant. The applicant had to serve the remainder of his sentence in prison. The file does not disclose the exact date of the applicant's release; it appears that he was in any event still serving his sentence in late October 2014.

Meanwhile, on 22 October 2013 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie, ‘the Deputy Minister’) revoked the applicant's residence permit, imposed a ten-year entry ban (inreisverbod) on him, and informed him that he was required to leave the country immediately. The decision to revoke the applicant's residence permit was based on section 3.86 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000; see paragraph 39 below). The total of forty-one months of custodial sentences imposed on the applicant for the offences committed by him (see paragraphs 6, 8 and 10–11 above) was set against the uninterrupted period of between six and seven years during which he had been lawfully resident in the Netherlands prior to committing that robbery.

The Deputy Minister acknowledged that these measures constituted interference with the applicant's right to respect for his family life as laid down in Article 8 of the Convention. However, he considered that an assessment on the basis of the guiding principles laid down by the European Court of Human Rights in its judgments in the cases of Boultif v. Switzerland (no. 54273/00, ECHR 2001-IX) and Üner v. the Netherlands ([GC], no. 46410/99, ECHR 2006-XII) led to the conclusion that the interests of public order and the prevention of crime outweighed the personal interests of the applicant. In this context he took into account, inter alia, the nature and seriousness of the offences committed by the applicant, in particular the armed robbery of 21 October 2011 (see paragraph 11 above). The Deputy Minister further had regard to the fact that the applicant had been born in the Netherlands and had always lived there. It was noted that, although the applicant had stated that he had learned from his mistakes, his early release had been revoked for his failure to comply with the conditions attached to that release and he had been convicted of multiple offences. Moreover, the applicant, an adult who had indicated that he wished to move out of his parents' home, had failed to explain why family life could not be enjoyed in another country, and his family would be able to visit him in their country of origin and support him there financially if necessary.

Whilst accepting that the applicant enjoyed a degree of family life with his parents in the Netherlands, the Deputy Minister considered that the applicant also had ties to Morocco: his parents came originally from that country, he had visited it in 2009, and he had family living there. The fact that the applicant did not speak the language spoken in Morocco fluently and that the family in the Netherlands were in dispute with the family in Morocco did not constitute an objective impediment to the applicant's settling in the latter country.

On 31 October 2013 the applicant lodged an objection (bezwaarschrift) against this decision. He argued that no careful assessment had been made and that the balancing of interests had been unfair. Thus, the four-week gap in his lawful residence in 2005 (see paragraph 5 above) had only come about because his father had omitted to apply in time for an extension of the applicant's residence permit. The applicant had had no control over this as he had been twelve years old at the time. However, this gap had enabled the Deputy Minister to base the impugned decision in the applicant's case on a stay of less than seven years, despite the fact that he had lived his entire life in the Netherlands.

The applicant also submitted that neither the offence he had committed when he was eighteen nor the offences perpetrated when he was underage were of such seriousness as to justify disregarding his interests. With regard to the first-mentioned offence, the applicant claimed that he had not had a leading role but had acted as a follower. In addition, he claimed that he would not be able to fend for himself in Morocco as he had no contacts in that country and no knowledge of its culture and society, he did not speak Arabic, and — according to a forensic psychological examination — he had an intellectual disability. Moreover, apart from the time spent in detention, he had always lived in the parental home and the ties with his parents and siblings were very strong, especially since the car accident (see paragraph 9 above), with the family members needing each other for support in order to come to terms with what had happened. His parents could not be expected to accompany him to Morocco because they were long-time residents of the Netherlands, where some of his younger siblings still went to school.

After a hearing before an official board of inquiry (ambtelijke hoorcommissie) on 24 February 2014, the Deputy Minister declared the objection unfounded on 3 June 2014.

Reconsidering his earlier decision (see paragraphs 13–15 above), the Deputy Minister held that the applicant's residence permit should be deemed to have been revoked with retroactive effect as of 21 October 2011, that being the date on which he had committed the offence for which he had been sentenced to a non-suspended term of three years' imprisonment (see paragraph 11 above). In this respect the Deputy Minister referred to section 3.86, subsection 4, of the Aliens Decree 2000 (see paragraph 40 below). The applicant had committed at least five serious offences and had received unsuspended custodial sentences totalling forty-one months, whereas the threshold in subsection 4 of section 3.86 of the Aliens Decree 2000, for persons whose period of lawful residence was between six and seven years, was seven months. The Deputy Minister noted, moreover, that even if the threshold of thirty months set out in the first two subsections of section 3.86 of the Aliens Decree 2000 were taken as the starting-point, this would also lead to the revocation of the applicant's residence permit.

The Deputy Minister further found that, because the applicant had not held a residence permit between 18 January and 15 February 2005 (see paragraph 5 above), his lawful stay in the Netherlands had not been continuous. The fact that the applicant had been a minor at the time the gap occurred did not alter this finding, as the decision to grant him a residence permit with a starting date of 15 February 2005 had become final.

According to the Deputy Minister, the applicant had failed to establish the existence between himself and his parents and siblings of more than the normal emotional ties which the European Court of Human Rights required to be present between parents and adult children before the protection afforded by Article 8 of the Convention could be invoked. Furthermore, and noting that the applicant had referred to his schooling and his social, cultural and family ties in the Netherlands, the Deputy Minister held that he had not provided any concrete evidence to substantiate these elements. Rather, it appeared that at the time the impugned decision was taken the applicant had not had a job and had not been in education, nor had he demonstrated any other social or cultural ties with the Netherlands.

In the context of the balancing exercise of the various interests at stake as required by Article 8 of the Convention, the Deputy Minister held, inter alia, as follows:

On 10 June 2014 the applicant appealed against the rejection of his objection.

In support of his appeal he argued, inter alia, that for the purposes of the assessment of his claims under Article 8 of the Convention, the duration of his stay in the Netherlands from 1993, rather than only from 2005, ought to be taken into account. He posited that in the balancing exercise of all the interests at stake, the Deputy Minister had failed to acknowledge that only negligible weight should be attached to the very short gap in the duration of his lawful residence, for which he could not be blamed and which had been the result of a mere oversight on the part of his father rather than bad faith.

According to the applicant, more weight ought to be given to his and his family's interest in continuing to be able to enjoy family life in the Netherlands. Most of the offences enumerated in the impugned decision had been committed whilst he had still been a minor, and although the offence which had led to the revocation of his residence permit had admittedly not been of a petty nature, it had not involved either drug dealing or violence. He argued, with reference to the Court's judgment in A.A. v. the United Kingdom (no. 8000/08, 20 September 2011) that, as a young adult, he ought to be given the time and the opportunity to mend his ways. On completion of the prison sentence which he was serving, the applicant wished to return on a voluntary basis to the institution where he had previously received treatment (see paragraph 11 above), in order to complete that treatment so as to be able to deal with his problems. A place was available for him in that institution provided that his residence in the Netherlands was lawful.

Furthermore, the applicant argued that owing to the very serious consequences of the car accident which had happened in 2009 (see paragraph 9 above), his removal from the Netherlands would be very hard for his family to bear. Having regard to his intellectual disability — which he claimed had led to him being granted social benefits (Wajong-uitkering) as of 26 June 2013 (which had been stopped on 22 October 2013 when his residence permit had been revoked) — it was also likely that, although officially an adult, he would not be able to manage by himself in Morocco, where he had no network and no knowledge of any of the country's official languages. In addition, the house which his family had used when they were in Morocco had belonged to his grandparents and was no longer in his family's possession.

By a judgment of 28 October 2014 the Regional Court of The Hague, sitting in Groningen, dismissed the appeal. It held that a gap in a period of lawful residence preceding the offence leading to the impugned measure was relevant for the determination of the duration of a period of lawful stay within the meaning of the relevant legal provision. Because the applicant had held a residence permit which was valid until 18 January 2005 and had subsequently been granted a residence permit as of 15 February 2005 (see paragraph 5 above), the period of lawful residence preceding his most recent offence had only started to run on the latter date.

As regards the applicant's claims under Article 8 of the Convention, the Regional Court held as follows:

The applicant lodged a further appeal with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), arguing, inter alia, that the Regional Court had been wrong to agree with the Deputy Minister that the applicant had not substantiated his social and cultural ties to the Netherlands. The existence of such ties for an alien who, like the applicant, had been born in the Netherlands and had received primary and secondary education there, should be considered a given, and it was for the Deputy Minister to establish that such ties did not exist.

By a judgment of 10 July 2015 the Administrative Jurisdiction Division found that the applicant's further 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 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

On 3 May 2016 the applicant was found guilty by the Rotterdam Regional Court of unlawful possession of an automatic firearm and ammunition, and was sentenced to twelve months' imprisonment. He had committed the offence on 26 October 2015. In its determination of the sentence the Regional Court took account of the fact that when the applicant and two others were stopped by the police, in addition to the — loaded — automatic firearm and ammunition, a number of balaclavas, tie wraps prepared for use as handcuffs, a baseball bat and a dagger had been found in their car.

On 24 December 2017 the applicant was arrested on suspicion of unlawful possession of firearms. Following the criminal investigation the applicant was handed over to the Aliens Police on 25 December 2017 and placed in immigration detention.

The applicant's immigration detention was terminated on 2 January 2018 when he was placed in the custody of the criminal justice authorities on suspicion of having committed the offence of threatening a police officer. Following his arrest and an investigation into the offence, the applicant was again placed in immigration detention on 3 January 2018. He was released on 28 May 2018 following an assessment of the various interests involved.

On 26 March 2018 the single judge trying criminal cases (politierechter) at the Rotterdam Regional Court convicted the applicant of threatening police officers with violence on 25 December 2017, and sentenced him to ten days' imprisonment.

On 25 July 2018 the applicant was convicted by the Rotterdam Regional Court of unlawful possession, on 24 December 2017, of a firearm, ammunition and a silencer. He was sentenced to nine months' imprisonment.

On four occasions (21 January 2014, 18 December 2015, 7 March 2016, 11 January 2018 and 7 November 2018) the Dutch authorities presented the case of the applicant, who had indicated that he would not cooperate in his expulsion to Morocco, at the Moroccan consulate in Rotterdam with a view to obtaining a replacement travel document. On the last-mentioned date, the application for a replacement travel document was accepted for processing. At the date of the latest information available to the Court (15 January 2019), no such document had yet been issued.

The applicant complained of unjustified interference with his right to respect for his private and family life as provided for in Article 8 of the Convention, which, in so far as relevant, reads as follows: