| Applicant name | MARTINEZ ALVARADO |
| Applicant type | immigrant |
| Number of applicants | 1 |
| Country | netherlands |
| Application no. | 4470/21 |
| Date | 10/12/2024 |
| Judges | Ioannis Ktistakis, President, Peeter Roosma, Jolien Schukking, Georgios A. Serghides, Darian Pavli, Andreas Zünd, Oddný Mjöll Arnardóttir |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | no fair balance |
| Type of privacy | relational privacy |
| Keywords | Refusal residence permit |
| Facts of the case | The applicant complained that the refusal to grant him a residence permit to reside with his sisters in the Netherlands had violated his right to respect for his family life as guaranteed by Article 8 of the Convention, which reads as follows: |
| Analysis | The Government did not dispute the applicant’s intellectual disability, his functioning at the level of an 8-year-old child and his dependency on others for daily care and supervision. However, the Government were of the opinion that the applicant was not specifically dependent on his sisters for the care and supervision he needed, and that alternative options were available to him. The Government pointed to the presence of the applicant’s brother in Peru, the possibility of employing outside help, and the availability of care institutions in Peru, and argued that the applicant had not demonstrated that he would be unable to access such care. The Government also considered it significant, given the Court’s findings in Senchishak (cited above, § 56), that the applicant’s sisters had not played a role in the applicant’s care prior to their parents’ death, and that their role in his day‑to-day care had taken its current form during the applicant’s stay in the Netherlands without a residence permit. Lastly, the Government pointed out that the applicant still had ties to Peru, as he was born and raised there and lived there until 2015. For the foregoing reasons the Government asserted that it had not been shown that there were “additional factors of dependence, other than normal emotional ties” between the applicant and his sisters, constituting “family life” within the meaning of Article 8 of the Convention. In making its assessment of the existence of “family life” within the meaning of Article 8 in the present case, the Court takes into account that it is undisputed that the applicant’s disability is of such a seriousness that he depends on the care of others in his daily life, which care has always been provided to him by his close family members (by his parents and, after they had passed away, by his sisters who have provided care and support to him for many years). The Court further affords considerable weight to the fact that, given his disability, the applicant’s perception of society was very limited, that his immediate family circle constituted most of his world and that for people outside this circle his communications were often incomprehensible. It also takes note of the fact that the applicant has substantiated that his brother, who is the only remaining family member in Peru, was unable to provide the necessary daily care and that the availability of viable alternatives has not been established. In that regard the Court notes that the applicant’s cogent arguments in support of his claim that such alternatives were lacking in Peru (see paragraphs 8, 19 and 21 above), have not been convincingly rebutted by the Government. The Court considers that in view of those facts and circumstances, it has been sufficiently demonstrated that the applicant’s disability incapacitated him to the extent that he was compelled to rely on his sisters’ care and support in his daily life, and concludes that “additional elements of dependency, other than normal emotional ties” have been shown to exist. the Court notes that, as follows from the statements of the facts (see paragraphs 6-24 above), as well as from the documents submitted by the parties, the domestic authorities’ assessment was limited to the question of applicability of Article 8. Given the above considerations, the Court finds that the analysis of applicability of Article 8 of the Convention – and, consequently, the assessment of whether the respondent State complied with a positive obligation under that provision – was not carried out at the domestic level in a manner consistent with the Convention and the Court’s case-law. There has accordingly been a violation of Article 8 of the Convention. |
| Other Article violation? | – |
| Damage awarded | The applicant did not submit a claim under Article 41. Accordingly, the Court considers that there is no call to award him any sum on that account. |
| Documents | Judgment |