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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1. The authors of the communication are Vital Maria Fernandes, a Cape
Verdean national, submitting the communication on his own behalf and on
behalf of his three children, all of Dutch nationality; his wife Maria Jose
Pereira Monteiro Fernandes, a Cape Verdean national; and Walter Hugo
Monteiro Semedo, son of the latter and also a Cape Verdean national. They
claim to be victims of a violation by the Netherlands [FN1] of article 17,
paragraph 1 and article 23 of the International Covenant on Civil and
Political Rights. The authors are represented by counsel, Mr. Bjorn van Dijk.
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[FN1] The Covenant and the Optional Protocol thereto entered into force for
the State party on 11 March 1979.
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THE FACTS AS PRESENTED BY THE AUTHORS
2.1 Mr. Fernandes worked on Dutch commercial vessels since the late 1980s.
Pursuant to the Dutch Aliens Act, individuals are eligible for a residence
permit if they, inter alia, have worked on Dutch ships for seven years. Mr.
Fernandes stopped working before completing this 7-year term, due to back
problems. He received benefits in accordance with the Disablement Benefits
Act (WAO) and has not worked since that time.
2.2 Mr. Fernandes resides in the Netherlands with his wife, Ms. Monteiro
Fernandes, whom he married in 1995 in the Netherlands, and their four
children. Three of the children are minors and Dutch nationals. They all
lived in the Netherlands since their birth. Mr. Monteiro Semedo, born on 5
October 1985, is the son of Ms. Monteiro Fernandes from a previous marriage.
2.3 On 13 November 1995, Mr. Fernandes submitted an application for a
residence permit to the Commissioner of the Groningen District Police, in
order to be able to obtain employment on board a Dutch vessel and spending
his leave in the Netherlands. This application was rejected on 16 July 1996.
His administrative appeal against this decision was declared inadmissible by
decision of 9 October 1996. A further appeal was filed in The Hague District
Court (Zwolle branch) on 6 November 1996. The appeal was dismissed on 2 May
1997.
2.4 On 6 May 1997, Mr. Fernandes submitted a new application for a residence
permit 'without restrictions' to the Commissioner of the Groningen District
Police. This was rejected on 7 May 1999. On 1 June 1999, the complainant
filed an objection and requested an interlocutory decision on 29 June 1999.
The Hague District Court (Zwolle branch) denied the request on 31 August
2000, and declared the objection of 1 June 1999 unfounded. A new application
for a residence permit was then submitted to the Commissioner of the
Groningen District Police on 10 July 2000. This request was focused on
enabling Mr. Fernandes to stay with his children. The request was not
accepted. An objection was filed on 7 August 2000 and declared well-founded
on 8 January 2001.
2.5 On 12 September 2000, the Groningen District Police Commissioner
proposed that Mr. Fernandes be declared an "undesirable person", as he had
committed criminal offences and had been sentenced on at least three
occasions in 1996, 1999 and 2000 for violations to the Opium Act and the
Road Traffic Act. On 20 February 2003, the application of 10 July 2000 was
rejected by the Minister for Aliens Affairs and Integration and Mr.
Fernandes was declared "an undesirable person". [[FN2] The decision
explicitly stated that the refusal to grant the author a residence permit
did not constitute a violation of his right to respect for his family life,
as defined by article 8 of the European Convention of Human Rights. Although
the matter involved respect for the family life of the complainants, the
refusal to grant Mr. Fernandes a residence permit in the Netherlands was not
aimed at depriving him of any entitlement to temporary residence, enabling
him to live with his family in the Netherlands. The decision indicates that
Mr. Fernandes and his wife were illegal residents when they started their
family life in the Netherlands, and that they knew or should have known of
the risks their choices entailed. The decision stipulated that the minor
children with Dutch nationality could opt for Cape Verdean nationality,
under Cape Verdean law. Thus, no objective obstacles existed that would
prevent the complainants from leading a family life outside the Netherlands.
An objection was lodged with the Minister for Aliens Affairs, as well as a
request for a provisional ruling from the Hague District Court (Aliens
Chamber). The request and the following objection were dismissed on 3
February 2004. The Hague Court decision was not subject to appeal.
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[FN2] Ms. Monteiro Fernandes and Mr. Monteiro Semedo submitted applications
for temporary residence permits on 10 July 2000 for the purpose of "staying
with her children" and "family reunification with parents" respectively. The
Minister for Alien Affairs and Integration rejected both applications by
decisions dated 20 February 2003.
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2.6 On 30 March 2004 a complaint was filed with the European Court of Human
Rights. On 7 September 2004 the European Court of Human Rights declared the
authors' application inadmissible because it did not comply with the
requirements set out in articles 34 and 35 of the European Convention on
Human Rights. [FN3]
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[FN3] ECHR, Application No. 11347/04, Fernandes and others v. The
Netherlands.
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THE COMPLAINT
3. The authors claim that the Netherlands violates article 17, paragraph 1,
and article 23 of the Covenant, by refusing the complainants residence
permits, since three of their children are Dutch nationals. Being Dutch
citizens, they cannot be deported. The three children were born and raised
in the Netherlands and they do not have any connection with Cape Verde. The
complainants are being forced to make an unacceptable choice of either to
remain in the Netherlands, without legal residence status, or to return to
Cape Verde with their children, who are fully integrated into Dutch society.
[FN4]
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[FN4] Authors refer to the Committee's views in communication No.1011/2001,
Madafferi v. Australia, Views adopted on 26 July 2004.
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STATE PARTY'S SUBMISSIONS ON ADMISSIBILITY AND MERITS
4.1 On 21 February 2007, the State party made its submission on the
admissibility of the communication. On 16 April 2007, the State party
confirmed that its admissibility submission also pertained to the merits of
the communication.
4.2 The State party considers that the authors have insufficiently
substantiated their claim. They failed to provide specific information and
arguments in support of their claim that provisions of the Covenant have
indeed been violated. The only substantiation provided is a mere assertion
that the three minor children are integrated into Dutch society and that
their return to Cape Verde would cause them problems.
4.3. The State party indicates that Mr. and Mrs. Fernandes established a
family in the Netherlands without being legal residents in that country.
They knew, or at the very least should have known, that the question of
whether they would be able to continue their family life in the Netherlands
would depend on whether they received a residence permit. The State party
points out to Mr. Fernandes' criminal record, which resulted in him being
declared an "undesirable alien". It notes that, as the children are eligible
for Cape Verdean nationality, nothing would prevent them from living with
their parents in Cape Verde.
AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5. On 28 November 2007, the authors reiterate that their communication is
admissible and that their three Dutch children cannot be asked to relocate
to a country to which they do not belong. They indicate that an attempt to
move to Cape Verde in October 2006, where the children spent four months,
not in the company of their father, failed because their links to the
Netherlands proved to be too strong and they were not able to adjust to life
in Cape Verde.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not the communication is admissible under the
Optional Protocol to the Covenant.
6.2 The Committee notes that this matter was already considered and decided
by the European Court of Human Rights on 7 September 2004. However, it
recalls its jurisprudence [FN5] that it is only where the same matter is
being examined under another procedure of international investigation or
settlement that the Committee has no competence to deal with a communication
under article 5, paragraph 2(a), of the Optional Protocol. Thus, article 5,
paragraph 2(a), does not prevent the Committee from considering the present
communication.
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[FN5] See Communication No. 824/1998, Nicolov v. Bulgaria, inadmissibility
decision adopted on 24 March 2000.
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6.3 In relation to the alleged violation of article 17, paragraph 1, and
article 23 of the Covenant, the Committee notes that other than statements
on the alleged hardship that the children, who were born and raised in the
Netherlands, would suffer if they follow their parents to their country of
origin, the authors have provided no arguments on how their rights under
these provisions would allegedly be violated. [FN6] In addition, the authors
have not have not demonstrated why, in these particular circumstances, their
deportation to Cape Verde would constitute an unlawful or arbitrary
interference with their family relations. [FN7] Consequently, the Committee
is of the view that the authors have failed to sufficiently substantiate
their claim for purposes of admissibility, that they or their children are
victims of violations of article 17, paragraph 1, and article 23 of the
Covenant. It thus finds that the communication is inadmissible under article
2 of the Optional Protocol. The Committee notes that its conclusion takes
account of the paucity of information provided by the authors, despite its
requests for additional information on the status of the children as well as
on the difficulties they would face if relocated to Cape Verde.
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[FN6] See Communication No. 820/1998, Rajan v. New Zealand, inadmissibility
decision adopted on 6 August 2003.
[FN7] See Communication 1222/2003, Byahuranga v. Denmark, Views adopted on 1
November 2004, paragraph 11.7; Communication No. 1011/2001, Madafferi v.
Australia, Views adopted on 26 July 2004, paragraphs 9.7 and 9.8;
Communication No. 538/1993, Stewart v. Canada, Views adopted on 1 November
1996, paragraph 12.10
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7. The Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That this decision shall be communicated to the author and to the State
party.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee.
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