Berrehab v Netherlands (Application 10730/84) [1988] ECHR 14

A Moroccan father, divorced from his Dutch wife, was refused renewal of his residence permit and deported from the Netherlands, despite having regular contact with his young daughter born of the marriage. The European Court of Human Rights found a violation of Article 8, establishing that family life exists between parent and child from birth regardless of cohabitation.

Facts

Mr. Berrehab, a Moroccan national, married a Dutch woman (Mrs. Koster) in 1977 and was granted a residence permit to live with his wife in the Netherlands. The couple divorced in 1979, shortly before their daughter Rebecca was born. Despite the divorce, Mr. Berrehab maintained close contact with his daughter, seeing her four times a week for several hours each time. He was appointed auxiliary guardian and ordered to pay maintenance.

When Mr. Berrehab applied to renew his residence permit after the divorce, it was refused on the grounds that the condition upon which his permit depended (living with his Dutch wife) was no longer fulfilled. His appeals were unsuccessful, and he was deported to Morocco in January 1984. The Raad van State held that four meetings a week were insufficient to constitute family life under Article 8 of the Convention.

Issues

Primary Legal Issues

• Whether ‘family life’ within the meaning of Article 8 ECHR exists between a parent and child where they do not cohabit
• Whether the refusal to renew the residence permit and subsequent deportation constituted an interference with the right to respect for family life
• Whether such interference was ‘necessary in a democratic society’
• Whether there was a violation of Article 3 (inhuman or degrading treatment)

Judgment

Family Life and Cohabitation

The Court established an important principle regarding the meaning of family life:

“The Court likewise does not see cohabitation as a sine qua non of family life between parents and minor children. It has held that the relationship created between the spouses by a lawful and genuine marriage… has to be regarded as ‘family life’. It follows from the concept of family on which Article 8 is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’, even if the parents are not then living together.”

Interference and Proportionality

The Court accepted that the measures pursued the legitimate aim of preserving the country’s economic well-being (regulating the labour market due to population density). However, it found the interference disproportionate:

“Having regard to these particular circumstances, the Court considers that a proper balance was not achieved between the interests involved and that there was therefore a disproportion between the means employed and the legitimate aim pursued.”

The Court emphasised that Mr. Berrehab was not seeking first admission but had lawfully resided in the Netherlands for several years, had employment, and had real family ties. The very close ties between father and daughter, and Rebecca’s young age making contact essential, weighed heavily against the State’s interest.

Article 3

The Court found no violation of Article 3, agreeing with the Commission that the applicants’ suffering did not reach the threshold of ‘inhuman’ or ‘degrading’ treatment.

Implications

This judgment significantly clarified the scope of ‘family life’ under Article 8 ECHR, establishing that:

• Cohabitation is not a prerequisite for family life between parent and child
• Family life exists from the moment of a child’s birth within a lawful marriage
• States must balance immigration control interests against the seriousness of interference with family life
• The particular circumstances of each case, including the nature of existing ties and the age of children involved, must be carefully weighed

The case influenced subsequent Netherlands jurisprudence, with the Court of Cassation adopting similar principles regarding the relationship between cohabitation and family life in immigration cases.

Verdict: The Court held by six votes to one that there was a violation of Article 8 (right to respect for family life). The Court unanimously held there was no violation of Article 3. The Netherlands was ordered to pay the applicants 20,000 Dutch guilders by way of just satisfaction.

Source: Berrehab v Netherlands (Application 10730/84) [1988] ECHR 14