Pormes v The Netherlands: No violation of Article 8 ECHR following refusal to grant residence permit

Tuesday, July 28, 2020

On 28 July 2020, the European Court of Human Rights published its judgment in Pormes v The Netherlands (Application No. 25402/14) concerning the refusal to grant a residence permit to an Indonesian national.

The applicant, who arrived in the Netherlands in 1991 at the age of 4 years old, was raised by his aunt and uncle, both Dutch nationals, after his parents passed away. At the age of 17, he discovered that he may not have Dutch nationality because he had not taken the necessary steps to regularise his status after arriving on a tourist visa. He later made an application for a temporary residence permit, which was rejected on the basis that he posed a danger to the public following a number of convictions for assault. The decision to reject his request was upheld on the basis that the correct weight had been placed on the nature and seriousness of the offences committed. The applicant complained that the refusal of the domestic authorities to grant him a residence permit placed too much weight on his criminal record and failed to balance his family life rights, in violation of Article 8 ECHR.

The Court observed that in the context of both positive and negative obligations a State must strike a fair balance between the competing interests of an individual and of the danger posed to the community as a whole. It noted, inter alia, that while the applicant had spent most of his childhood in the Netherlands, his residence was at no point lawful as he had never obtained settled status. However, an assessment of the competing interests between the individual and the community must take into account the applicant’s specific circumstances.

There was, indeed, no doubt that after living in the Netherlands for 15 years his ties to the country were very strong, while his ties to Indonesia were weak. Nevertheless, the Court noted, inter alia, that it cannot overlook the applicant’s criminal record and repeated offences, some of which had been committed while he was an adult and aware of his precarious status. Moreover, the Court found that the domestic authorities’ decision making bodies had consistently had regard for the applicant’s Article 8 interests throughout proceedings. It therefore concluded that the decision refusing to grant a temporary residence permit did not amount to a violation of the applicant’s right to family life under Article 8 ECHR.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Family unity (right to)