JUDGMENT OF THE EUROPEAN COURT OF JUSTICE

23 JANUARY 2024

(Article 8 of the Convention Right to Family Life)

CASE NAMANI VS. THE NETHERLANDS

JUDGES:
Mr. Roger Welmer
Ms. Kariann Stoltz
Ms. Marinde Kruissink

Word Count: 2400

Having regard to:
The case (no. 1) against the Netherlands by Mr. Namani (“the applicant”) on 23rd of
January, 2024.
The decision to give notice to the Netherlands (“the Government”) of the complaints
under Article 8 of the Convention (and Article 8 of the Convention) in the matter denying
permits to the sons of the applicant a violation of the rights of Mr. Namani under the
ECHR.

Before the European Court Of Human Rights;

Having deliberated in private on 23rd of January, 2024

Delivers the following judgment:

I. INTRODUCTION

Background and Asylum Application:

Mr. Namani, an Iranian national born in 1976, sought asylum in the Netherlands in 2015 as a
Kurdish descent and former member of the Democratic Party of Iranian Kurdistan. Until 2015,
he lived in Teheran, Iran with his wife and two sons. Following his asylum application, he
worked in the Netherlands until 2022 when he fell ill, receiving a partial-invalidity pension.

Medical Condition of Mrs. Namani:

Mrs. Namani, Mr. Namani’s wife, faced a critical medical situation. In 2019, she suffered a
severe burn incident during an epileptic fit in Iran, resulting in the amputation of two fingers.
Due to the inadequate medical facilities, she joined her husband in the Netherlands later that
year, where she was immediately taken into the hospital. Ten months later, Bahar, their daughter,
was born. Mrs. Namani, still suffering from epilepsy, couldn't care for Bahar, leading to Bahar
entering foster care in the Netherlands. In a written statement the attending doctor declared that
Mrs. Gül's return to Iran could be fatal due to her serious medical condition, rendering it
impossible, as doing so would jeopardize her life.
Residence Permit

While the initial request for political asylum by Mr. Namani was denied, the IND expressed
support for a residence permit on humanitarian grounds for Mr. Namani and his wife.
Considering that he should be allowed to remain in the Netherlands due to the duration of his
stay and the fragile health condition of his wife. In 2022, Mr. Namani was granted his Dutch
permit.

Efforts to Bring Sons to the Netherlands:

Three months later, Mr. Namani sought permission to bring his two sons, Babbas and Amir, to
the Netherlands. The request was rejected by the IND, citing non-conforming housing and
insufficient means. The IND highlighted that this case does not fulfill the criteria established for
family reunion, primarily due to Mr. Namani's financial incapacity to support his family.

Moreover, The IND stated that Babbas is 20 years old and resides independently. Following his
mother's departure, Amir has been living with his uncle and aunt in Tehran. Mr. Namani has
visited his sons in Tehran on several occasions. According to Mr. Namani, the uncle and aunt
lack the resources to provide adequate care for Amir in Tehran. Amir has had to relocate
frequently, residing with various Kurdish families in Tehran. Additionally, he faces challenges
attending school due to the considerable distance from his residence.

Mr. Namani believes that the Dutch government's refusal to allow his sons to stay in the
Netherlands infringes upon his rights under the European Convention on Human Rights (ECHR).
In response, Mr. Namani takes legal action and files a claim against the Netherlands. This
complex situation underscores the balance of asylum-seeking, family dynamics, and critical
medical conditions, presenting a multifaceted challenge for Mr. Namani and his family in their
pursuit of stability and reunification in the Netherlands.

II. LEGAL ANALYSIS

Scope of application
The applicant, Mr. Namani, claimed that the refusal of the Dutch authorities to permit his sons,
Babbas and Amir, to join him in the Netherlands had violated his right to respect for family life.
Mr. Namani came to the Netherlands in 2015 because he saw no other option. Due to his Kurdish
descent and his affiliation with the Democratic Party of Iranian Kurdistan, his life is in danger.
He has been receiving a disability allowance since 2022. In 2019, his wife joined him in the
Netherlands due to health issues. She cannot receive proper medical care in Iran, which is
available to her in the Netherlands. Ten months later, she gave birth to a baby girl who was
placed in foster care due to her mother's illness. In 2022, both were granted permission to stay in
the Netherlands based on Mr. Namani's time spent there and his wife's health issues, according to
the IND. Three months later, Mr. Namani submitted an asylum request for his two sons who are
still residing in Iran.

The IND rejected the submission, arguing that Mr. Namani would not have the financial means
to take care of his family, and therefore, his sons needed to stay in Iran. The IND pointed out that
the eldest son is already 20 years old and lives independently. The other son has been under the
care of his uncle and aunt since his mother left for the Netherlands.

Alleged Violation of Article 8 (art. 8) of the Convention

Mr. Namani claims that the refusal of the IND to allow his son Amir to join him in the
Netherlands has infringed his right to respect for family life under Article 8 of the Convention1.
In contrast, The IND stated that Article 8 is not applicable, asserting that the intention necessary
for family life was absent, possibly due to Mr. Namanis departure from Iran when Amir was
younger and his failure to develop family life in his home country.

Referring to the Court's precedent, it is established that the bond between parents and a child
born of a marital union constitutes "family life," a connection not easily broken even in
exceptional circumstances. Despite the geographical separation, Mr. Namani's efforts, including
repeated visits to Iran, demonstrate the continuous nature of the "family life" bond with his son
Amir.

1
Charter of Fundamental Rights of the European Union Art. 8
Interference with Right to Family Life:

Mr. Namani contends that persistent refusal by authorities to allow Amir to join him has
practically separated the family, hindering regular contact due to financial constraints.
Furthermore he expectedly assert that preventing a parent from living with a minor child
constitutes interference with the right to respect for family life.

The Netherlands presumably argues that Mr. Namani cannot rely on a right to family reunion in
the Netherlands, given his humanitarian permit's nature. They in all likelihood claim that the
Netherlands fulfilled positive obligations under Article 8 para. 1 (art. 8-1), and no interference
occurred. A fair balance between individual and community interests under Article 8 (art. 8) is
emphasized, recognizing the State's right to control non-nationals' entry, particularly in
immigration-related cases.

Potential Grounds for Justification

Article 8 requires a fair balance between individual and community interests, acknowledging the
State's discretion and margin of appreciation, especially in immigration-related cases. In
immigration cases, Article 8 does not impose a general obligation on a State to respect the choice
of married couples for their matrimonial residence. The State's obligations depend on the specific
circumstances of the persons involved and the general interest.

The case involves both family life and immigration, requiring consideration of the State's
obligation to admit relatives of settled immigrants based on individual circumstances and the
general interest. Consequently, the decision considers Mr. Namani’s initial reasons for asylum,
visits to his son, Mrs. Namani’s health condition, legal status in the Netherlands, and the
potential to develop family life in Iran.

The Netherlands is argued to have fulfilled its obligations under Article 8 para. 1 (art. 8-1), with
no interference in family life. The Dutch authorities are not obligated to ensure an optimal family
life for the Namani family in the Netherlands.2 Despite the challenges, options still exist for the
Namani family to develop family life either in the Netherlands or in Iran, considering the
2
Family Reunification for Refugees, 4.2.1. Voluntary and Involuntary Family Separation p 23
family's length of residence in the Netherlands and Babba’s upbringing in his home country.

The Netherlands argues also that, looking at the fair balance between the interests of Mr. Namani
and his wife and sons and the interests of the community, the Netherlands needs to be strict about
giving asylum. There is a huge housing shortage in the Netherlands and it would not be in the
interests of the community to give asylum to the two sons Mr. Namani, also taken into account
that one of the sons is an adult. Secondly the Netherlands struggles with utter chaos at asylum
centers because of the mass of people seeking asylum.

Case Law

According to Berrehab v. The Netherlands any child born out of a union, automatically becomes
part of family life3. Even if the parents are no longer living together4. This is an immediate
contradiction of the IND claiming there is no family life because of the insufficient finances of
Mr. Namani. According to Berrehab v. The Netherlands finances should not matter in deciding if
we may speak of family life. This means that in this case we can speak of family life.

Margin of Appreciation

Article 8 of the Convention introduces a complex perspective on the right to family life,
embodying both negative and positive obligations for Member States. While typically viewed as
a negative obligation, requiring states to refrain from interference in family matters, it may
evolve into a positive obligation when states are tasked with safeguarding this fundamental
right5. In the current case, the relevance of the latter aspect becomes apparent as the family
contends with potential disruption by authorities, hindering the realization of their right to family
life.

The term "respect" within Article 8 is intentionally ambiguous, adapting to the specifics of each
case and allowing for consideration of the Member State's margin of appreciation. This

3
Berrehab v. The Netherlands, paragraph 21
4
Berrehab v. The Netherlands, paragraph 21
5
Family Reunification for Refugees, Margin of Appreciation, p 31
flexibility acknowledges that the interpretation of the right may vary, influenced by the unique
circumstances and the degree of discretion afforded to each state.

The second paragraph of Article 8 outlines the conditions under which public authorities can
interfere with the right to family life. Notably, immigration restrictions may align with these
criteria, serving purposes such as national security or the economic well-being of the country.
However, the European Court recognizes that the state's obligation to accept individuals and
permit settlement arises only when it is not realistically possible to live family life in another
location.

Assessing the current case, the question arises: can this family's life flourish elsewhere? The
applicant, Mr. Namani sought refuge in the Netherlands due to political concerns, fearing for his
safety if he returned to Iran. Additionally, Mrs. Namani experiences health difficulties that
prevent her from receiving adequate treatment in Iran. Consequently, the Court may infer that the
family, as a whole, would struggle to flourish in Iran. While it's acknowledged that family life
could thrive in alternative countries, the circumstances unfold differently as Mr. Namani has
received a Dutch permit, and his daughter was born on Dutch soil and placed in Dutch foster
care. These specific circumstances invite an examination of the margin of appreciation, as the
family's right to flourish in the Netherlands is intricately connected to their right to family life.

Proportionality

In assessing the proportionality of the measures taken against Mr. Namani, it is crucial to
consider the interests of both Mr. Namani and the Government. On one hand, Mr. Namani asserts
his right to family life, invoking family reunion to be with his sons in the Netherlands. On the
other hand, the Government contends that the measures are necessary within a democratic
society, citing concerns related to immigration policy and financial considerations.

The Government contends that the applicant did not qualify for a settlement permit in the
Netherlands, but was only permitted to stay on humanitarian grounds. The family is fully
dependent on social security and the daughter Bahar, was placed in foster care since Mrs.
Namani could not take care of her. They argue that Mr. Namani and his wife lack the financial
means to raise Amir, making his stay in the Netherlands disadvantageous to his well-being.
Therefore, it would be doubtful that the applicant would be able to take care of Amir without
resulting in another placement in a foster home, which would result in a burden for the Dutch
social security.

The assessment of proportionality requires the consideration of the margin of appreciation

granted to the Contracting States. While the Dutch authorities' concerns align with immigration
policy, It’s imperative to analyze the interference with Mr. Namani’s right to respect for family
life. Examining the seriousness of the interference, It is evident that Amir risks growing up
without his parents, posing a significant disruption to family life. Furthermore, the applicant
submitted that Amir’s residence varies constantly and his aunt faces financial problems making it
difficult for Amir to have regular attendance at school.

Ultimately, the Court concludes that the interference was not proportionate to the legitimate aim
pursued. Financial considerations, including potential burdens on social security authorities,
were deemed insufficient to justify a permanent separation of a child from his parents. A fair
balance was not struck between the interests at stake making the interference unjustified
according to Article 8, paragraph 2 (Art. 8-2) of the Convention.

III. CONCLUSION

The Commission concludes, unanimously, that in the present case there has been a violation of
Article 8 (Art. 8) of the Convention. Based on all the preceding factors, The infringement of this
right lies in the disproportionate interference with the fundamental right to respect for family life.
The Commission states that the refusal to allow Amir’s entry into the Netherlands, considering
the financial and medical grounds presented, did not strike a fair balance between the interests at
stake. The denial, based on potential economic burdens and uncertainty about future
circumstances, was deemed incompatible with the proportionality in Article 8.

In considering the arguments put forth by the Netherlands, the Commission acknowledges the
margin of appreciation afforded to Contracting States in immigration-related matters to regulate
the entry and stay of aliens. However, the Commission contends that these factors alone are
insufficient to justify the interference with Article 8. Moreover, the Commission maintains that
while the margin of appreciation is applicable, it should not endorse a decision that lacks
proportionality and fails to strike a fair balance.

Finally for that matter, the Commission highlights that the interference was not justified under
Article 8 para. 2 of the Convention, as the reasons provided did not meet the criteria of being
necessary in democratic society and proportionate to the legitimate aim pursued. Therefore, The
breach of Article 8 fails to uphold the right to family life.
IV. REFERENCES

Gül v. Switzerland (22 January 1996) Case 53/1995/559/645

‘Family Reunification Procedure for Asylum Residence Permit Holders’ (2021 June) Engels
https://www.vluchtelingenwerk.nl/sites/default/files/u32918/en_gha_nieuw.pdf

Stephanie A. Motz ‘Family Reunification for Refugees in Switzerland’ (October 2017) Legal
Framework and Strategic Considerations, The UN Refugee Agency
https://www.unhcr.org/dach/wp-content/uploads/sites/27/2017/11/201710-CSDM-UNHCR-Fam
Reun-for-Refugees-in-Switzerland.pdf

‘European Convention on Human Rights (ECHR) and charter of Fundamental Rights of

the European Union (charter)’ (2000) European Competition Law, pp. 657–658.
https://www.europarl.europa.eu/charter/pdf/text_en.pdf

Berrehab v. the Netherlands (21 June 1988) Case 10730/84