Criminal offenders with an irregular migrant status do not always benefit from their fundamental human rights and are often regarded by the host state as a “danger” to public order. Under international law, states have legitimate power to deport foreign offenders who are a danger to the public order. The case of Pormes v the Netherlands considered the question of whether an offender with an irregular immigration status is entitled to protection under article 8 of the European Convention of Human Rights (ECHR). Article 8 provides that “everyone has the right to respect for his private and family life, his home and his correspondence”. The court concluded that the state’s decision to refuse to grant a temporary residence permit in this case did not amount to a violation of article 8.  

In this case, it appears that the applicant’s criminal history weighed heavily in favour of the refusal to grant a temporary residence permit. Recidivist behaviour, though, should not derogate from the entitlement of human rights. Human rights are indivisible and inalienable. However, it is important to keep in mind that the purpose of the ECHR is to provide a fair balance between the rights of the individual and the needs of the wider society. 

CASE FACTS AND DOMESTIC RULING

The applicant, Hein Pormes, contested that the Deputy Minister of Justice’s refusal to grant a residence permit amounted to a violation of his right to private and family life. The applicant was born in Indonesia. At the age of four, he travelled to the Netherlands on a tourist visa with his father who was a Dutch national. However, his father returned to Indonesia, and Pormes was taken care of by his paternal uncle and aunt, who were both Dutch nationals. Neither his father or his paternal uncle and aunt did not regularise his immigration status because he was presumed to be a Dutch national by them. Pormes continued to live in the Netherlands and in 2004 became aware that he was staying in the Netherlands without legal status. In August 2006, he was convicted of indecent assault.  

In September 2006, Pormes applied for a temporary residence permit on the basis that he had always assumed he held Dutch nationality. However, the Deputy Minister of Justice rejected his application on the basis that Pormes did not produce evidence of his alleged Dutch nationality and after considering the seriousness of his criminal offences. In 2009, Pormes submitted an application under the Kingdom Act on Netherlands Nationality to the Regional Court of the Hague and requested an order confirming that he held Dutch nationality at his birth. However, in 2011 the Regional Court rejected his application, denying him a proclamation of Dutch nationality, saying that he had not acquired Dutch nationality at birth because Pormes’s mother was not married to his biological father at his birth. The ruling against Pormes was appealed, but the appellate body ruled that the Deputy Minister did not err in placing great weight on the applicant’s criminal offences. As a result, Pormes was deported to Indonesia; however, he still filed an application to the European Court of Human Rights (ECtHR) on article 8 grounds.

ECtHR DECISION AND DISSENT

Despite Pormes’s efforts, the ECtHR also concluded that domestic authorities did not attribute excessive weight to the general public interest in prevention of crime. Thus, the ECtHR found no violation of article 8 of the ECHR. In addition, the Court reiterated that a state is entitled to control the entry of “aliens” under international law. The ECtHR further held that “article 8 of the ECHR does not impose a strict obligation for the state to respect immigrants’ choice of the country of their residence and to authorise reunion in its territory”.

ECtHR Judge Ranzoni disagreed with the Court’s findings and concluded that there had been a violation of article 8. In his dissenting opinion, he found that there was a procedural violation of the article, because domestic authorities failed to properly balance the public interest and the applicant’s interests. He also asserted that the domestic authorities emphasised the applicant’s criminal history without serious consideration of surrounding circumstances. For example, it was assumed that he would be able to settle in Indonesia without any obstacles, even though Pormes did not have any strong family ties and did not know the language.  

Moreover, Judge Ranzoni argued that the applicant was entitled to private family life. He clearly had a strong bond with his foster parents, which again was not seriously considered by the domestic authorities. In addition, the Court asserted that Pormes neither qualified as a “settled migrant” nor as an “alien,” because his father never regularised his immigration status.  According to the ECHR, a “settled migrant” is a person that holds a formal right of residence. However, a host country can withdraw such a formal right if the settled migrant has been convicted of criminal offences. Whereas “an alien” is a person that does not hold a formal right of residence in the host country. Article 8 does not compel states to respect the residence choice of migrants unlawfully in their jurisdiction. Thus, as a migrant without lawful status, Pormes would not have protection from deportation, because article 8 does not establish a right of residence for “aliens.” In contrast, if Pormes were a settled migrant, the compatibility with article 8 would then have been assessed against the principles given in another ECtHR case Üner v the Netherlands—including the nature of the crime committed by the applicant, the length of time the applicant had been in the country, and the applicant's family relationships and ties to the country, among other important factors.

Regardless of legal status, Pormes lived in the Netherlands for a long period of time, and Judge Ranzoni highlighted that, based on the facts, Pormes was closer to being a “settled migrant”. Therefore, his lack of legal status should have been more closely considered, and perhaps the Court should have assigned Pormes with either a “settled migrant” or “alien” status officially before proceeding in their analysis. Judge Ranzoni asserted that the Court also ignored factual evidence that Pormes’s criminal behaviour began as soon as he grew aware of his undetermined immigration status, suggesting that perhaps the psychological distress of his becoming aware of his immigration status should have been examined. Pormes always assumed that he was a Dutch national and experiencing the sudden reality that he was never Dutch in the first place could have led to mental distress, influencing his subsequent behaviour.

FINAL REMARKS

Understandably, the applicant's recidivist attitude should not simply be excused. Nonetheless, Pormes claimed article 8 rights on the basis that he has strong ties with his foster parents. With the familial support and a recognised residential status granted by the Court, perhaps his recidivist behaviour would have ceased. Although the outcome of this case appears to be a step back for human rights of migrants in particular, the dissenting opinion by Judge Ranzoni importantly outlines the legal lacuna between a “settled migrant” and “alien”.

It is important to consider that some migrants might not fall into either of the categories. Therefore, this case outcome should serve to build awareness of the need for legal protection of this middling category. Pormes v the Netherlands outlines the difficulties in establishing strict legal definitions. People who cross borders and settle in a new place create complex family and social ties in their host countries. Morally, individuals who create strong bonds in a host country should be treated in the same way as the national citizens living in the country. The ECHR does not recognise nationality as a defining aspect of who qualifies for human rights, but rather holds that “human rights are rights held simply by virtue of being a human person”. Similarly, article 1 of the ECHR states that “everyone” within the jurisdiction of a contracting party benefits from the rights and freedoms enumerated in the ECHR. In theory, “everyone,” including people with a precarious legal status, should benefit from the ECHR, but in practice this is not necessarily the case. Evidently, there is a legal gap between the notion of a “settled migrant” and an “alien,” as Pormes v the Netherlands highlights. When relevant, this gap must be considered for each person’s specific circumstances.

Faouzia attended Canterbury Christ Church University where she attained a degree in Law with International Relations (LLB). The following year she completed an LLM in Human Rights Law which focused on the right of asylum seekers and refugees under international human rights law.

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