Exceptional circumstances that may prevent the expulsion of an alien

On October 3, 2014, the Grand Chamber of the European Court of Human Rights delivered its Judgment Jeunesse v Pays Bas in which it considered that the expulsion of the applicant, whose three children are of Dutch nationality, will entail a violation of Article 8 of the European Convention on Human Rights.  

However, this judgment must be read with caution because it does not recognize, at the expense of European countries, the obligation to issue a residence permit to foreigners whose family members are regularly established on the territory of the country concerned. .  

Indeed, according to the settled case law of the European Court, when individuals are aware of the irregularity of their situation on the territory of the country concerned, it is only in exceptional circumstances that the removal of the national family member from a third country violates Article 8.

The European Court noted that the applicant, who had been illegally residing in the Netherlands for several years, she knew, before starting a family life  that his  stay there was precarious . The Court notes, however, that all members of Ms Jeunesse's family except herself are Dutch nationals and have the right to live their family life together in the Netherlands. It also notes that the applicant's situation is not comparable to that of other candidates for immigration since she was of Dutch nationality at birth and that she lost this nationality involuntarily upon accession to the independence of Suriname in 1975 under the Agreement of 25 November 1975 between the Kingdom of the Netherlands and the Republic of Suriname concerning the granting of nationality.

The European Court also takes into account the fact that despite the applicant's failure to comply with the obligation to leave the territory, the Dutch authorities tolerated her presence for sixteen years, whereas for a large part of this time they would have could kick him out. The fact that she remained in the Netherlands for such a long period in practice enabled the applicant to establish and develop close family, social and cultural ties with  this country.  

Taking these factors into account cumulatively, the Court finds that the circumstances surrounding Ms. Jeunesse's case must be considered exceptional. It therefore concludes that the Dutch authorities failed to strike a fair balance between the private interest of the applicant and her family in continuing their family life in the Netherlands and the public interest of the Government.

to control immigration. It therefore finds a violation of Article 8.