Communicated on 18 December 2014
THIRD SECTION
Applications nos 49929/11 and 28686/14
U.A.H.M. against the Netherlands and Italy
and L.N.T. against the Netherlands and Italy
lodged on 11 August 2011 and 15 April 2014 respectively
STATEMENT OF FACTS
1. The applicant in the first case, Ms U.A.H.M., states that she is a national of Somalia, who was born in 1982. At the time of the introduction of the application, she was in the Netherlands. She is represented before the Court by Ms J. van Veelen-de Hoop, a lawyer practising in Rotterdam.
2. The applicant in the second case, Ms L.N.T., states that she is an Eritrean national, born in 1989 in Sudan. At the time of the introduction of the application, she was in the Netherlands. She is represented before the Court by Ms M. Melchers, a lawyer practising in Utrecht.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, the Italian Government and the Netherlands Government, may be summarised as follows. Some of the facts are disputed.
1. Application no. 49929/11
4. In December 2001, criminal proceedings in Italy were brought against the applicant for having refused to give her identity to a police officer and for having attacked this officer. According to the Italian records concerning this incident, the applicant was born in 1972.
5. In December 2002, the immigration department of the competent police headquarters (questura) rejected the applicant’s request for a residence permit. This decision was served on the applicant in March 2003. In August 2005, an order for the applicant’s deportation was issued by the competent Prefect.
6. In March 2006, an Italian court convicted the applicant of drug offences and sentenced her to one year and eighteen months’ imprisonment as well as payment of a fine of 2,600 euros.
7. In June 2009, the competent territorial commission for the recognition of international protection (Commissione Territoriale per il Riconoscimento della Protezione Internationale; “territorial commission”) rejected the applicant’s asylum request – filed on an unspecified date – but did decide to transmit her case to the immigration department of the competent police headquarters for the issuance of a residence permit for compelling humanitarian reasons under the terms of Article 5 § 6 of Law Decree (decreto legge) no. 286/1998. This permit was never issued as the applicant never reported to this department and left for an unknown destination.
8. In March 2010, the applicant applied for asylum in the Netherlands.
9. The examination and comparison of the applicant’s fingerprints by the Netherlands authorities generated a Eurodac report, indicating that she had been registered in Italy in October 2007 and in Switzerland in March 2009.
10. This asylum request was rejected by the Minister for Immigration, Integration and Asylum (Minister voor Immigratie, Integratie en Asiel) in January 2011. The Minister found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Minister rejected the applicant’s argument that she risked treatment in breach of Article 3 of the Convention in Italy.
11. The applicant’s appeal was rejected in July 2011 by the Regional Court (rechtbank) of The Hague. The applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). As this appeal does not have an automatic suspensive effect, the applicant was placed in aliens’ detention for removal purposes in August 2011.
12. After her placement in aliens’ detention, the applicant filed an objection against her actual transfer (bezwaar tegen feitelijke overdracht) to Italy which had been scheduled. On an unspecified date, the Italian authorities had requested their Netherlands counterparts to postpone the scheduled transfer date in order to make the necessary arrangements to ensure that the applicant, given her health condition (HIV positive), would receive the most appropriate treatment upon her arrival in Italy.
13. On 11 August 2011, the applicant introduced the present application to the Court. On 12 August 2011, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Italy until further notice. The President further decided to put a number of factual questions to the Government of Italy (Rule 54 § 2 (a)), which concerned the applicant’s situation in Italy before her arrival in the Netherlands.
14. Also on 12 August 2011, the applicant filed a fresh asylum request, which, pursuant to article 4:6 of the General Administrative Law Act (Algemene wet bestuursrecht), must be based on newly emerged facts and/or altered circumstances (“nova”) warranting reconsideration of the initial refusal.
15. On the basis of the indication given under Rule 39, the applicant was released from aliens’ detention and her objection against her actual transfer to Italy dismissed.
16. In October 2011, the applicant gave birth in the Netherlands to a daughter.
17. The Italian Government submitted their replies to the factual questions put by the President on 12 January 2012 and, on 6 February 2012, the President put additional factual questions to the Government of Italy. The Italian Government submitted their replies to these additional questions on 20 March 2012 and the applicant’s comments in reply were submitted on 15 May 2012.
18. In the meantime, in March 2012, the Minister had rejected the applicant’s fresh asylum request. Her appeal was accepted in June 2012 by the single-judge chamber of the Regional Court of The Hague.
19. The Minister’s further appeal against this ruling was accepted in March 2013 by the Administrative Jurisdiction Division. It quashed the judgment of June 2012 in so far as the court had not indicated that the legal effects of the Minister’s decision were to remain intact and in so far as it had ordered the Minister to take a fresh decision. It further ordered that the legal effects of the Minister’s decision were to remain intact and upheld the impugned judgment for the remainder. Accepting that the applicant – being a HIV positive, single mother – could be regarded as a vulnerable alien, it agreed with the Minister that the applicant had not demonstrated that she would be unable to obtain the necessary care in Italy. It further did not find it established that the applicant’s transfer to Italy would be contrary to her rights under Article 3.
20. In April 2013, at her request, the applicant was admitted to a clinical detoxification treatment programme in order to overcome her alcohol addiction which also caused her financial problems. In this context, the applicant explained that she had been drinking excessively since the age of 12, that she had fled to France when she was 18 and that she had subsequently moved to Italy where she had been addicted to heroin for four years and then to cocaine for three years. After having taken methadone for four years, she had been able to stop taking narcotics. She had been living in the Netherlands since 2010 and was in the process of acquiring a residence permit. She explained that she had a 14-month old daughter whose father had been deported to Iraq and that she wanted to stop drinking for her daughter. The applicant further submitted that, due to a blood transfusion, she had contracted HIV in 2009 but that her daughter is not HIV positive.
21. In May 2013, the applicant’s daughter was placed by the Youth Care Office (Bureau Jeugdzorg) in a foster home. Realising that for the time being she was not able to care for her daughter, the applicant gave her consent for her daughter’s placement in a foster home.
2. Application no. 28686/14
22. In 2005, the applicant met Mr T.T., an Eritrean national, in Khartoum. He subsequently travelled to the Netherlands where in December 2006 he was granted a temporary asylum-based residence permit. In 2011, he returned to Sudan where he married the applicant in June 2011.
23. Shortly after her marriage, the applicant filed a request with the Netherlands mission in Khartoum for a provisional residence permit (machtiging tot voorlopig verblijf) for the purpose of obtaining a residence permit for stay with her husband in the Netherlands. However, the statutory administrative charges (leges) were not paid by her and this request abandoned as the applicant’s husband did not meet the minimum income requirement under the applicable Netherlands immigration rules as it did not concern the reunification of a refugee family (nareis).
24. The applicant’s husband returned to the Netherlands in the end of June 2011. As the marriage certificate had not yet been authenticated, he only took a copy of this certificate with him. As he did not have an authenticated marriage certificate, he could not request registration of this marriage in the Netherlands municipality where he lived. When in July 2011 he applied for an asylum-based residence permit of unlimited duration and later for naturalization, he did not mention that he was married but stated that he was single.
25. After having stayed in Eritrea from January to April 2013, the applicant decided to travel to the Netherlands in order to apply for asylum on the basis of her problems encountered in Eritrea. Out of fear to lose it during the journey, she did not take with her the original marriage certificate, which had been authenticated in the meantime, but only a copy.
26. The applicant entered the Netherlands in September 2013 and applied for asylum the day after her arrival. The examination and comparison of her fingerprints by the Netherlands authorities generated a Eurodac report, indicating that, before her arrival in the Netherlands, she had entered Italy where she had applied for asylum.
27. In October 2013 the Netherlands authorities requested the Italian authorities to take back the applicant in accordance with Article 16 of the Dublin Regulation. As the Italian authorities failed to react to that request within two weeks, they were considered to have implicitly acceded to it.
28. In November 2013, the Netherlands Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) rejected the applicant’s asylum request. The Minister found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application and that this was not altered by the fact that the applicant was pregnant. The Minister rejected the applicant’s argument that her transfer to Italy would be contrary to her rights under Article 3 and Article 8 of the Convention.
29. In January 2014, the competent Netherlands municipality informed M. T. that, having received an original, authenticated marriage certificate from Sudan, they were prepared to register this marriage in the Netherlands municipal personal records database, provided that the immigration authorities issue positive advice to the effect that it was not a marriage of convenience (schijnhuwelijk). No information has been submitted as to whether such positive advice has been given.
30. In January 2014, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague accepted the applicant’s appeal against the decision of November 2013, quashed this decision, ordered the Deputy Minister to take a fresh decision and, as the case was remitted to the Deputy Minister, rejected the applicant’s request for a provisional measure. The judge found that the Deputy Minister had not duly reasoned his decision in that the applicant had relied as from the outset on various rulings and reports concerning transfers to Italy under the Dublin Regulation whereas these submissions had not been examined by the Deputy Minister in the manner as described in the M.S.S. v Belgium and Greece judgment.
31. In February 2014, the applicant filed a further appeal with the Administrative Jurisdiction Division against the judgment of 28 January 2014.
32. In a fresh decision taken later in February 2014, the Deputy Minister again rejected the applicant’s asylum request. He found no reasons under Article 15 of the Dublin Regulation – according to which a State may bring together “family members as well as other dependent relatives” on humanitarian grounds by taking responsibility for an asylum seeker that they would not otherwise be responsible for – warranting the Netherlands to take responsibility for the applicant’s asylum request. The Deputy Minister also rejected the applicant’s argument that the Netherlands could no longer rely on the principle of mutual interstate trust (interstatelijk vertrouwensbeginsel) in respect of Italy as there were, according to the applicant, sufficient concrete indications that Italy failed to respect its international treaty obligations in respect of asylum seekers and refugees and that, consequently, her transfer to Italy would be in breach of Article 3 as well as Article 8. The Deputy Minister held that the applicant had not demonstrated that Italy failed to meet its obligations under the 1951 Refugee Convention and the Convention and that this finding was not altered by the fact that she was pregnant.
33. The applicant filed an appeal against this decision with the Regional Court of The Hague as well as a request for a provisional measure. In March 2014, this appeal and request were transmitted for determination to the Administrative Jurisdiction Division in accordance with section 6:19 of the General Administrative Law Act (Algemene Wet Bestuursrecht).
34. In early April 2014, the applicant was informed that her removal to Italy had been scheduled.
35. According to a statement drawn up in April 2014 by an obstetrician, the applicant was pregnant and due to give birth in the end of June 2014.
36. Also in April 2014, the Administrative Jurisdiction Division rejected the applicant’s appeal against the Rgional Court’s judgment of January 2014, confirmed this ruling and rejected her appeal against the Deputy Minister’s fresh decision taken in February 2014. On the same day, its President rejected the applicant’s request for a provisional measure.
37. The application was introduced to the Court on 14 April 2014. On 15 April 2014, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Italy until further notice. The President also decided to grant anonymity to the applicant under Rule 47 § 3 of the Rules of Court and to put factual questions to the Netherlands Government (Rule 54 § 2 (a)), which concerned the contacts between the Netherlands and Italian authorities and the information provided by the Italian authorities in relation to the applicant’s scheduled transfer to Italy. The Netherlands Government submitted their reply on 7 May 2014. The applicant’s comments in reply were submitted on 10 June 2014.
B. Relevant domestic law and practice
38. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum seekers and transfers of asylum seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland ([GC], no. 29217/12, §§ 28-48, 4 November 2014); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).
COMPLAINTS
1. Application no. 49929/11
39. The applicant complains that the removal to Italy of herself and her child will be contrary to Article 3 of the Convention in that, in particular given the fact that she is a HIV positive, single mother whereas her entitlement to adequate medical care is not guaranteed in Italy, they will be exposed to bad living conditions in Italy.
40. She further complains that there is a risk of refoulement from Italy to Somalia without a proper examination of her asylum claim by the Italian authorities which will expose her and her daughter a risk of being subjected to treatment proscribed by Article 3.
2. Application no. 28686/14
41. The applicant complains that her removal to Italy will be contrary to her rights under Article 3 and Article 8 of the Convention given the commonly known lack of care and reception facilities in Italy. Her pregnancy and consequential dependence on rest, safety, accommodation and access to medical care, renders her vulnerable and increases her risk of being exposed to a risk of treatment contrary to Article 3. In her view, the Netherlands have insufficiently examined whether Italy would respect its obligations vis-à-vis the applicant where it concerns care and accommodation.
42. She also complains under Article 8 that her right to respect for her family life was disrespected by the Netherlands authorities’ failure to take responsibility for her asylum request, despite her pregnancy and her husband’s presence in the Netherlands
43. The applicant further complains under Article 13 taken together with Article 3 that her request for a provisional measure was not granted suspensive effect in that she would be removed before her appeal of 12 February 2014 had been heard. Furthermore, her arguments under Article 3 have not been properly examined as her appeal against the decision of 10 February 2014 was determined without a hearing.
44. She lastly complains under Article 13 that there are no effective remedies for addressing the lack of care and reception facilities and the dire circumstances in which asylum seekers find themselves when staying in a reception centre in Italy in particular when it concerns a single and pregnant woman.
QUESTIONS TO THE netherlands Government
1. The Government are invited to submit their observations in light of the Court’s judgment in Tarakhel v. Switzerland ([GC], no. 29217/12, 4 November 2014). In particular, your Government are invited to clarify whether they envisage taking any steps in response to the judgment, including any that may affect directly the applicant’s status in the Netherlands.
2. If no such steps are envisaged, in the light of the Court’s findings in the above-mentioned case of Tarakhel v. Switzerland, what guarantees, if any, have been obtained by your Government from the Italian Government in connection with the applicant’s transfer to Italy?
3. In the light of the applicant’s claims, the contents of the case and the Court’s findings in the case of Tarakhel v. Switzerland, would the applicant face a risk of being subjected to treatment in breach of Article 3 of the Convention if transferred to Italy?
4. Did the applicant in application no. 28686/14 have at her disposal an effective domestic remedy for her complaint(s) under Article 3, as required by Article 13 of the Convention?
QUESTIONS TO THE italian Government
1. In the light of the Court’s findings in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, 4 November 2014), what guarantees, if any, have been given by your Government to the Government of the Netherlands in connection with the applicant’s transfer to Italy?
2. In the light of the applicant’s/applicants’ claims, of the contents of the case file and of the Court’s findings in the case of Tarakhel v. Switzerland, would the applicant face a risk of being subjected to treatment in breach of Article 3 of the Convention if transferred to Italy?
3. Does the applicant in application no. no. 28686/14 have at her disposal an effective domestic remedy for her complaint(s) under Article 3, as required by Article 13 of the Convention?
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