37. The Court observes at the outset that there can be no doubt that there is family life within the meaning of Article 8 of the Convention between the first applicant and her daughter Rachael, the second applicant: Rachael was born from a genuine relationship, in which her parents cohabited as if they were married.
38. Next, it observes that the present case concerns the refusal of the domestic authorities to allow the first applicant to reside in the Netherlands; although she has been living in that country since 1994, her stay there has at no time been lawful. Therefore, the impugned decision did not constitute interference with the applicants' exercise of the right to respect for their family life on account of the withdrawal of a residence status entitling the first applicant to remain in the Netherlands. Rather, the question to be examined in the present case is whether the Netherlands authorities were under a duty to allow the first applicant to reside in the Netherlands, thus enabling the applicants to maintain and develop family life in their territory. For this reason the Court agrees with the parties that this case is to be seen as one involving an allegation of failure on the part of the respondent State to comply with a positive obligation (see Ahmut v. the Netherlands, judgment of 28 November 1996, Reports of Judgments and Decisions 1996-VI, p. 2031, § 63).
39. The Court reiterates that in the context of both positive and negative obligations the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general obligation for a State to respect immigrants' choice of the country of their residence and to authorise family reunion in its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State's obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest (see Gül v. Switzerland, judgment of 19 February 1996, Reports 1996-I, pp. 174-75, § 38). Factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Solomon v. the Netherlands (dec.), no. 44328/98, 5 September 2000). Another important consideration will also be whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. The Court has previously held that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Mitchell v. the United Kingdom (dec.), no. 40447/98, 24 November 1998, and Ajayi and Others v. the United Kingdom (dec.), no. 27663/95, 22 June 1999).
40. Turning to the circumstances of the present case, the Court notes that the first applicant moved from her native Brazil to the Netherlands in 1994 at the age of 22. Even though she has now been living in the latter country for a considerable time, she must still have links with Brazil, where she presumably grew up and underwent her schooling.
41. However, if the first applicant were to return to Brazil she would have to leave her daughter Rachael behind in the Netherlands. The Court observes in this connection that at the time the final decision on her application for a residence permit was taken on 12 February 1999, the first applicant no longer had parental authority over Rachael, the Supreme Court having quashed the decision of the Amsterdam Regional Court which had awarded her such authority (see paragraphs 19 and 20 above). It was Rachael's father, Mr Hoogkamer, to whom parental authority was subsequently, and finally, attributed. In its assessment of this issue, the Amsterdam Court of Appeal had regard to a report which had been drawn up by the Child Care and Protection Board in August 1997 - prior to the final decision in the residence proceedings -, according to which it would be traumatic for Rachael if she had to leave the Netherlands in view, inter alia, of the strong bond she had with her paternal grandparents (see paragraph 14 above). Parental authority having been awarded to Mr Hoogkamer, the first applicant is thus simply not able to take Rachael with her without his permission which, as has not been disputed by the Government, will not be forthcoming. In these circumstances, the Court considers that the Government's claim that the first applicant and Mr Hoogkamer might have agreed that Rachael would move to Brazil with her mother is untenable, bearing in mind that it was the Dutch courts, following the advice of the Dutch child welfare authorities, who concluded that it was in Rachael's best interests to stay in the Netherlands.
42. The Court further notes that, from a very young age, Rachael has been raised jointly by the first applicant and her paternal grandparents, with her father playing a less prominent role. She spends three to four days a week with her mother (see paragraphs 16 and 22 above), and, as confirmed by her grandparents (see paragraph 22 above), has very close ties with her. The refusal of a residence permit and the expulsion of the first applicant to Brazil would in effect break those ties as it would be impossible for them to maintain regular contact. This would be all the more serious given that Rachael was only three years old at the time of the final decision and needed to remain in contact with her mother (see Berrehab, cited above, p. 16, § 29).
43. Whilst it does not appear that the first applicant has been convicted of any criminal offences (see Berrehab, cited above, p. 16, § 29, and Cılız v. the Netherlands, no. 29192/95, § 69, Reports 2000-VIII), she did not attempt to regularise her stay in the Netherlands until more than three years after first arriving in that country (see paragraphs 9 and 13 above) and her stay there has been illegal throughout. The Court reiterates that persons who, without complying with the regulations in force, confront the authorities of a Contracting State with their presence in the country as a fait accompli do not, in general, have any entitlement to expect that a right of residence will be conferred upon them (see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003). Nevertheless, the Court finds relevant that in the present case the Government indicated that lawful residence in the Netherlands would have been possible on the basis of the fact that the first applicant and Mr Hoogkamer had a lasting relationship between June 1994 and January 1997 (see paragraph 34). Although there is no doubt that a serious reproach may be made of the first applicant's cavalier attitude to Dutch immigration rules, this case should be distinguished from others in which the Court considered that the persons concerned could not at any time reasonably expect to be able to continue family life in the host country (see, for example, Solomon v. the Netherlands, cited above).
44. In view of the far-reaching consequences which an expulsion would have on the responsibilities which the first applicant has as a mother, as well as on her family life with her young daughter, and taking into account that it is clearly in Rachael's best interests for the first applicant to stay in the Netherlands, the Court considers that in the particular circumstances of the case the economic well-being of the country does not outweigh the applicants’ rights under Article 8, despite the fact that the first applicant was residing illegally in the Netherlands at the time of Rachael’s birth. Indeed, by attaching such paramount importance to this latter element, the authorities may be considered to have indulged in excessive formalism.
The Court concludes that no fair balance was struck between the different interests at stake and that, accordingly, there has been a violation of Article 8 of the Convention.