4
KONSTATINOV v. THE NETHERLANDS JUDGMENT
exclusion order, on account of her criminal record in the Netherlands. As
regards Article 8 of the Convention, the Deputy Minister considered that the
applicant's personal interests in exercising her family life in the Netherlands
were outweighed by those of the Netherlands authorities in protecting public
order and preventing crime.
16. On 30 November 1998, the applicant lodged an objection (bezwaar)
against this decision. On the same day, she applied to the Regional Court
(arrondissementsrechtbank) of The Hague for a stay of expulsion pending
the final outcome of the proceedings.
17. On 3 March 1999, after a hearing held on 6 January 1999, the
Regional Court of The Hague sitting in 's-Hertogenbosch accepted the
applicant's request for a provisional measure and ordered the applicant's
expulsion stayed until four weeks after the Deputy Minister had given a
decision on the objection. Having noted the seven years that had elapsed
between the filing of the applicant's request for a residence permit and the
first decision taken on that request, the Regional Court failed to see what
interest the Deputy Minister had in not allowing the applicant to await the
outcome of her objection in the Netherlands.
18. On 10 August 2000 the applicant appealed to the Regional Court of
The Hague against the notional dismissal (fictieve weigering) of her
objection, the Deputy Minister not having given a decision by that date. On
10 January 2001 the Regional Court accepted the applicant's appeal and
ordered the Deputy Minister to give a decision within six weeks or within
ten weeks if there was to be a hearing before an advisory board.
19. On 29 May 2001 the applicant was heard on her objection before the
Advisory Board on Matters Concerning Aliens (Adviescommissie voor
vreemdelingenzaken). She stated, among other things, that her son L.G. had
been suffering from asthma since his birth, and that since her last conviction
in 1995 she no longer had had any dealings with the Netherlands criminal
justice authorities. Her lawyer referred to a policy, set out in a letter dated
10 January 1984 from the Deputy Minister of Justice and which had still
been in force in 1991, under which requests for residence permits lodged by
Roma for marriage purposes were given favourable consideration.
20. The Deputy Minister gave a decision on 12 July 2001. The objection
was dismissed on the ground that Mr G. (still) did not comply with the
minimum income requirement under the applicable immigration rules
whereas he was not dispensed of this requirement. In addition, when heard
on 29 May 2001, the applicant had denied that she had had recent dealings
with the Netherlands criminal justice system, whereas in reality she had
amassed further convictions of theft since 1998 and had been arrested for
shoplifting in May 2001; from this it could be concluded that the applicant
was a danger to public order. The applicant's criminal record also rendered
her ineligible for a residence permit under the three years policy. The
Deputy Minister further rejected the applicant's argument that – given the