ECtHR - Sen v. the Netherlands, Application no. 31465/96, 21 December 2001

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Country of Applicant: 
Turkey
Date of Decision: 
21-12-2001
Citation: 
Sen v. the Netherlands, Application no. 31465/96, 21 December 2001
Court Name: 
European Court of Human Rights First Section
Headnote: 

The European Court of Human Rights found an infringement of the applicants’ right to respect for their family life, guaranteed by Article 8 of the European Convention on Human Rights, on account of the rejection of their application for a residence permit for their daughter.

Facts: 

The first two applicants were beneficiaries of a residence permit in the Netherlands. They left their daughter (third applicant) in Turkey. They applied unsuccessfully for a residence permit for the third applicant. On account of the rejection of their application, they complained of an infringement of their right to family life, as enshrined in Article 8 of the Convention.

Decision & Reasoning: 

The Court reiterated the need to examine whether the country’s decision not to give a residence permit to the third applicant was taken while balancing the competing interests of the individual and of the society as a whole [31]. In order to establish the extent of the obligations of a State in relation to nationals of third countries,   the Court considered it necessary to consider the facts of the case based on the applicable principles, which were set out in its judgements Gül (23218/94) and Ahmut (21702/93). In this context, the Court took into account the age of the child concerned, her situation in her country of origin and the level of dependence in relation to her parents [37]. It further noted that the present case had certain common points with the situation of the applicants in the case Ahmut where no violation of Article 8 had been found based on the facts of the case [38]. Concerning the case at hand, it took note of the fact that the third applicant was supported by her aunt and uncle after her mother’s departure to the Netherlands; she lived all her life in Turkey and had therefore strong links with the linguistic and cultural environment of her country. What is more, part of her family was still living there [39]. However, contrary to its judgement in the case Ahmut, the Court estimated that in the present case there was a major obstacle in returning the family Sen to Turkey. Beneficiaries of permits to stay in the Netherlands, the two first applicants had established their life as a couple in the Netherlands, where they had lived legally since many years and where two more children were born. Those two children lived their whole lives in the Netherlands, in the cultural and educational environment of this country. Therefore, they have little or no connection with their country of origin. Under these conditions, the most appropriate way to develop family life was, given the young age of the third applicant, by bringing her to the Netherlands [40]. 

Outcome: 

Violation of Article 8 

Observations/Comments: 

Concurring Opinion of Judge Türmen

Judge Türmen shared the majority’s opinion according to which the refusal to allow the third applicant to come and live in the Netherlands had not struck a fair balance between the competing interests of the applicants and the community.  In his opinion, when migrant parents with a legal status in a country want to bring with them the child they left behind, it is inhuman to make them choose between the country of their establishment and the company of their child, which constitutes a fundamental right to family life.

Case Law Cited: 

ECtHR - Boughanemi v. France, Application no. 22070/93

ECtHR - Gül v. Switzerland, Application no. 23218/94

ECtHR - X., Y. and Z. v. United Kingdom, no. 21830/93

ECtHR - Mehemi v. France, no. 53470/99

ECtHR- Berrehab v. the Netherlands, Application no. 10730/84

United Kingdom - McMichael v The United Kingdom, Series A No 207-B(1995) 20 EHRR 205

ECtHR - Ahmut v. the Netherlands, Application 21702/93, 28 November 1996

ECtHR - Johansen v Norway, Application No. 17383/90

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81
Other sources cited: 

 

ECtHR - Boughanemi v. France, Application no. 22070/93

 

Authentic Language: 
French
State Party: 
Netherlands