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1.1 The author of the
communication, initially dated 23 June 2003, is Ms. Fatima Benali, a
Moroccan national born in Morocco on 13 July 1984. She argues that for the
Netherlands to remove her to Morocco would amount to a breach of articles
17, 23 and 24 of the Covenant. The author is represented by counsel.
1.2 On 29 June 2004, the Committee, acting through its Special Rapporteur on
New Communications, decided to separate consideration of the admissibility
and merits of the communication.
The facts as presented by the author
2.1 In 1985, the marriage of the author's parents, living in Morocco, was
dissolved. Her mother moved out of the family home, where the author
continued to live with her father. In August 1989, the author's father
remarried. Between 1989 and 1990, the author's mother also remarried and
lived in a village some 50 kilometres removed from the author, who lived
with her paternal grandmother. The author contends that, according to local
cultural rules, her mother joined completely the family of her new husband
and left her own family. She accordingly withdrew both de facto and legally
from the care of the author, stating in an "acte de remise d'enfant" that
she transferred the author's care to her father. In 1990, the author's
father moved to the Netherlands with his new wife. It is said, however, that
her father maintained contact with her, took decisions concerning her
education in consultation with her grandmother and provided money for her
education and care. In 1995, the paternal grandmother moved to France, but
according to applicable French law it was allegedly not possible for the
author to join her. Instead, on 1 September 1995, she traveled separately to
her father in the Netherlands.
2.2 On 12 September 1995, the author applied to the Dutch authorities for a
residence permit to stay with her father, residing in the Netherlands. On 2
June 1997, the Secretary of Justice refused the application. On 18 May 1998,
the Secretary of Justice rejected the author's application that the previous
decision was invalid.
2.3 On 22 January 1999, the District Court dismissed the author's appeal
against the decision of the Secretary of Justice. The Court observed that
domestic law provided for a residence permit to allow for family
re-unification arising from a family relationship pre-existing a parent's
arrival in the Netherlands. Such a claim fails, however, if the family
relationship had been dissolved, such as by permanent assimilation of a
child into another family whereby the initial parents no longer exercise
parental authority or provide for the child's expenses. The claim also
becomes more difficult the longer the period of separation has continued. In
the Court's view, it was not probable that the author's father leaving her
behind in 1990 with her grandmother's family for five years was seen as a
temporary measure and that he had from the beginning intended her to join
him in the Netherlands. The Court considered, on the contrary, that the
decision to bring the author to the Netherlands was more probably prompted
by the move of her grandmother to France in 1995. In light of all the facts,
the Court found the relationship had come to an end ceased when her father
left Morocco.
2.4 On the claim that the author nonetheless should be permitted to remain
in the Netherlands on sufficiently urgent humanitarian grounds, the Court
considered that unreasonable hardship in the event of a return had not been
shown. Nor had it been shown that she had become so integrated into Dutch
society, and so alienated from Moroccan society, that residence outside the
Netherlands would be inconceivable and "so distressing" that she should be
permitted to remain. Assessing the claim under the protection of family life
afforded under article 8 of the European Convention on Human Rights, the
Court found, on the above assessment of the facts, that no interference in
family life had been made out. Nor had the author made out any positive
obligation on the State in the circumstances to allow her to remain. No
objective impediment to continuing to enjoy family life in Morocco had been
shown. As a result, after weighing the competing factors, the Court found
that the decision had been arrived at "in all reasonableness" and was not
inconsistent with any general principle of sound and proper administration.
2.5 Since that point, the author has continued to live in the Netherlands
and it is said that no action to remove her has been initiated.
THE COMPLAINT
3.1 The author argues that to remove her to Morocco would amount to
arbitrary or unlawful interference with her family and home, contrary to
article 17 of the Covenant, and would breach her right to protection as a
minor, contrary to article 24 of the Covenant. She also alleges, without any
argumentation, a violation of article 23 of the Covenant.
3.2 The author contends that in Morocco there is no person who could take
care of her. It is argued that her father cannot be expected to return there
to care for her as his wife has lived in the Netherlands since 1980 and does
not wish to return. The author states that she has joined school in the
Netherlands and is completely integrated in Dutch society, speaking the
language fluently.
SUBMISSIONS BY THE STATE PARTY ON THE ADMISSIBILITY OF THE COMMUNICATION
4. By submission of 28 June 2004, the State party argues the communication
is inadmissible for failure to exhaust domestic remedies, arguing that after
lodging the communication the author submitted a renewed request for a
residence permit to the immigration authorities. That request was rejected
on 21 April 2004, upon which the author filed an objection to the District
Court accompanied by a request for a provisional measure that she not be
expelled pending the Court's proceedings. A date for hearing has not yet
been set.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S SUBMISSIONS
5. By letter of 13 July 2004, the author responded to the State party's
submissions, arguing that she submitted a new (as opposed to "renewed")
request for a residence permit, but that the objection has been filed with
immigration authorities rather than with the District Court. She concedes
that a request for provisional measures pending the objection proceedings
has been filed. She argues that all domestic proceedings regarding the
particular request have been exhausted, a fact not altered by the filing of
a new request with other argumentation. The new request argues that since
her arrival in the Netherlands in 1995 and since the final decision of the
District Court in 1999 no attempt was made to remove her, and that it would
thus be a policy of "toughness" to remove her at the present time. The
author thus concludes that the communication should be declared admissible.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee observes, with respect to the claim under article 24, that
as the author is at the present time no longer a minor, then, regardless of
what may have been the position at an earlier point in time, any future
removal would not implicate any rights under this article. This claim is
thus inadmissible ratione materiae under article 3 of the Optional Protocol
as incompatible with the provisions of the Covenant.
6.3 As to the claims under articles 17 and 23, the Committee refers to its
jurisprudence that the removal of one or more family members from a State
party to another country may, in principle, raise arguable issues under
these provisions of the Covenant. [FN1] The Committee observes however that
the issues which the author, by her own action, has presented to the
authorities in her renewed application, are of substantial import to any
decision of the Committee on these claims, as the Committee's decision would
be based on assessment of the author's situation as it stands at the time of
decision. The Committee refers to its jurisprudence that, where an author
has lodged renewed proceedings with the authorities that go to the substance
of the claim before the Committee, the author must be held to have failed to
exhaust domestic remedies as required by article 5, paragraph 2(b), of the
Optional Protocol. [FN2] The Committee thus declares the communication
inadmissible on this basis.
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[FN1] See Baroy v The Philippines, Case No. 1045/2002, Decision adopted on
31 October 2003, and Romans v Canada, Case No. 1040/2001, Decision adopted
on 9 July 2004.
[FN2] See, for example, Winata v Australia Case No. 930/2000, Views adopted
on 26 July 2001, and Sahid v New Zealand Case No. 893/1999, Views adopted on
28 March 2003.
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7. Accordingly, the Committee decides:
a) that the communication is inadmissible under articles 3 and 5, paragraph
2(b), of the Optional Protocol; and
b) that this decision will be transmitted to the author and, for
information, to the State party.
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[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.] |
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