Communicated on 16 March 2017

THIRD SECTION

Application no 29381/11 Mimi Bongo MADIANI against the Netherlands lodged on 6 May 2011

STATEMENT OF FACTS

1 . T he applicant, Ms Mimi Bongo Madiani , is a national of the Democratic Republic of the Congo (the “DRC”), who was born in 1979 and lives in Hengelo. She is represented before the Court by Ms M. van der Linden, a lawyer practising in Almelo.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Application for asylum

3 . On 15 May 2002 the applicant applied for asylum in the Netherlands. This application was rejected on 10 October 2002 by the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ) . On 24 March 2003 the applicant gave birth to a son. The applicant ’ s appeal against this decision was rejected on 1 November 2004 by the Regional Court ( rechtbank ) of The Hague sitting in Leeuwarden. The applicant ’ s further appeal was rejected by the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State on 7 December 2004. No further appeal lay against this ruling.

2. Application for a residence permit for family formation

4 . On 3 June 2005 the applicant applied for a residence permit for the purpose of stay with partner, family formation ( gezinsvorming ). This request was rejected on 6 December 2005 by the Minister for Immigration and Integration. The applicant filed an objection ( bezwaar ) to this decision on 30 December 2005. As her objection did not have suspensive effect, she also filed a request for a provisional measure ( voorlopige voorziening ) with the Regional Court of The Hague. On 7 October 2006 the applicant gave birth to a daughter. On 19 January 2007 her request for a provisional measure was granted.

5 . On 6 June 2007 the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant ’ s objection of 30 December 2005. The applicant ’ s appeal against this decision was rejected on 28 December 2008 and her accompanying request for a provisional measure declared inadmissible. The applicant ’ s further appeal was rejected on 16 October 2008 by the Administrative Jurisdiction Division.

3. Application for a residence permit for exercise of family life

6 . On 26 February 2008 the applicant applied for a residence permit for the purpose of exercising family life in accordance with Article 8 of the Convention. This application was rejected on the same day by the Deputy Minister of Justice because the applicant did not hold the required provisional residence visa ( machtiging tot voorlopig verblijf ). Such a visa has to be applied for at a Netherlands mission in the petitioner ’ s country of origin and it is a prerequisite for the granting of a residence permit ( verblijfsvergunning ) which confers more permanent residence rights. The Deputy Minister further found that the applicant did not fall within one of the categories of aliens who were exempted from the obligation to hold a provisional residence visa and found no reasons to consider that, in the particular circumstances of the applicant ’ s case (the applicant ’ s partner and their two minor children being all Dutch nationals), this obligation amounted to undue hardship warranting applying the hardship clause ( hardheidsclausule ). The Deputy Minister also rejected the applicant ’ s arguments under Article 8 of the Convention.

7 . On 27 February 2008 the applicant filed an objection with the Deputy Minister. As this objection did not have suspensive effect, she also requested the Regional Court of The Hague to issue a provisional measure, i.e. to stay her removal from the Netherlands pending the outcome of her objection. On 5 February 2009 the provisional measure judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Almelo granted the provisional measure requested. On 19 August 2009 the Deputy Minister rejected the applicant ’ s objection, including her argument that she should be exempt from the obligation to hold a provisional residence visa because to oblige her to return to the DRC to obtain it would, given her mental health problems, amount to exceptional hardship ( onbillijkheid van overwegende aard ). On this point, the Minister noted that – according to medical advice given by the Medical Assessment Section ( Bureau Medische Advisering ; “BMA”) of the Ministry of Justice on, respectively 7 April 2009 and 14 July 2009 – the applicant was suffering from Post-Traumatic Stress Disorder (PTSD) due to traumatic events in her country of origin, that she was receiving treatment from a psychiatrist but that no medical emergency would arise in the short term ( medische noodsituatie op korte termijn ) if she no longer received treatment.

8 . In its judgment of 9 April 2010 the Regional Court of The Hague sitting in Zwolle accepted the applicant ’ s appeal against the decision of 19 August 2009. It found that the impugned decision lacked adequate reasoning in that the Deputy Minister had examined the applicant ’ s medical problems under section 3.71 § 4 of the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ) and thus had only considered whether reason dictated that the Deputy Minister should exempt the applicant from the obligation to hold a provisional residence permit for reasons of exceptional hardship. The Deputy Minister had failed to examine whether the applicant was not already exempt from this obligation under section 17 § 1(c) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ). Consequently, it quashed the impugned decision and remitted the case to the Deputy Minister for a fresh decision.

9 . Both the applicant and the Minister of Justice filed a further appeal with the Administrative Jurisdiction Division. On 8 November 2010, the Administrative Jurisdiction Division rejected the applicant ’ s further appeal and, noting that the applicant had not complained about a failure to consider her situation under section 17 § 1 of the Aliens Act whereas the scope of review of the Regional Court is limited to an appellant ’ s submissions on appeal, accepted the appeal filed by the Minister, quashed the impugned judgment of 9 April 2010 and rejected the applicant ’ s appeal against the decision of 19 August 2009. No further appeal lay against this decision.

4. Application for deferral of removal on medical grounds

10 . On 15 February 2011 the applicant filed a request under section 64 of the Aliens Act 2000 for deferral of her removal for medical reasons. This request was rejected on 13 March 2012 by the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ) who – on the basis of advice given by the BMA on 7 March 2012 that the applicant was fit to travel, provided that she carried prescribed medication during the journey and would be accompanied by a psychiatric nurse, and that her return to the DRC was not expected to give rise to a medical emergency in the short term – concluded that the applicant ’ s state of health did not necessitate a temporary stay of her removal. On 25 May 2012 the Minister rejected the applicant ’ s objection.

11 . The applicant ’ s appeal against the decision of 25 May 2012 was rejected by the Regional Court of The Hague sitting in Zwolle on 14 March 2013. Although the applicant could have filed a further appeal with the Administrative Jurisdiction Division, there is no indication in the case file that she had done so.

5. Application for a temporary regular residence permit

12 . On 5 August 2013 the applicant filed a request for a temporary regular residence permit ( verblijfsvergunning regulier voor bepaalde tijd ). This request was rejected by the Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie ) on 27 March 2014. On the same day, the applicant filed an objection with the Deputy Minister and requested the Regional Court of The Hague to issue a provisional measure, i.e. stay of removal pending the objection proceedings. On 11 July 2014 the provisional measures judge of the Regional Court of The Hague rejected the request for a provisional measure and, on 17 July 2014, the Deputy Minister rejected the applicant ’ s objection, including her arguments based on Article 20 of the Treaty on the Functioning of the European Union.

13 . The applicant ’ s appeal against the decision of 17 July 2014 was rejected by the Regional Court of The Hague sitting in Zwolle on 11 December 2015.

14 . On 8 January 2016 the applicant filed a further appeal with the Administrative Jurisdiction Division. On 18 April 2016 the Administrative Jurisdiction Division informed the applicant that the determination of her further appeal was adjourned pending the outcome of a request of 16 March 2015 from the Central Appeals Tribunal ( Centrale Raad van Beroep ) to the Court of Justice of the European Union concerning Article 20 of the Treaty on the Functioning of the European Union (ECLI:NL:CRVB:2015:665) as the outcome of this request was of direct relevance for the determination of the applicant ’ s further appeal. No further information about these proceedings has been submitted.

COMPLAINT

The applicant complains that not exempting her from the obligation to hold a provisional residence visa issued by the Netherlands mission in the DRC before she is able to apply for a residence permit in the Netherlands is contrary to her rights guaranteed by Article 8 of the Convention. She points out that her husband and their four children all hold Netherlands nationality, that her husband has income from work and that, given her medical condition, it is impossible for her to return to the DRC or to settle there with her husband and children.

Q UESTIONS

1. Is the applicant married to the father of her children? If so, since when?

2. How and when did the applicant ’ s partner/husband obtain Netherlands nationality?

3. How many children have been born out of the applicant ’ s relationship or marriage with the father of her children? When were they born?

4. Apart from the requirement to hold a provisional residence permit ( machtiging tot voorlopig verblijf ), does the applicant comply with all other requirements to be granted a residence permit allowing her to reside in the Netherlands on the basis of her family life with her partner and their children?

5. If the applicant complies with all other requirements for the granting of a Netherlands residence permit, would she still be obliged to leave the Netherlands and apply for a provisional residence visa in her country of origin?

6. In what manner have the domestic authorities adverted to and assessed evidence in respect of the practicality, feasibility and proportionality of the applicant ’ s removal from the Netherlands in order to give effective protection and sufficient weight to the best interests of her children directly affected by it?

7. Has there been an interference with the applicant ’ s right to respect for her family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference necessary in terms of Article 8 § 2, also having regard to what would be in the best interest of the applicant ’ s children?

Alternatively, does Article 8 of the Convention impose a positive obligation on the Netherlands authorities to allow the applicant to reside in the Netherlands? If so, has this positive obligation been met?