Communicated on 8 January 2015

THIRD SECTION

Applications no . 5868/13 S.M.H. against the Netherlands lodged on 17 January 2013

STATEMENT OF FACTS

1 . The applicant, Ms S.M.H., states that she is a national of Somalia, born in 1981. At the time of the introduction of the application, she was in the Netherlands. She is represented before the Court by Ms J. Janssen, a lawyer practising in Kapelle .

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties and the Italian Government may be summarised as follows. Some facts are disputed.

3 . I n April 2003, the applicant entered Italy, landing in Lampedusa . On 15 April 2003, she applied for asylum in Italy, stating that she had been born in 1983. She was registered accordingly by the Italian authorities. A fter her fingerprints had been taken and verified, it transpired that, under another identity, she had alr eady been registered in Italy in October 2000 at the Milan Malpensa border.

4 . After having applied for asylum in April 2003, the applicant was admitted to a reception centre in Capo Rizzuto and was subsequently transferred to another reception facility in Cirò Marina. She was further provided with a temporary residence permit for an asylum seeker. In February 2004, the reception facility informed the authorities that the applicant had left the reception centre for an unknown destination.

5 . In its decision taken in January 2005, having noted that the applicant had left for an unknown destination, the competent territorial commission for the recogniti on of international protection ( Commissione Territoriale per il Riconoscimento della Protezione Internationale ) dismissed the applicant ’ s request for international protection.

6 . On an unspecified date, the applicant was transferred to Italy in accordance with the Dublin Regulation. In September 2005, she was notified of the decision taken in January 2005 and ordered to leave Italy within 15 days.

7 . However, the applicant did not leave Italy and found shelter in accommodation run by a non-governmental organization.

8 . In October 2005, the special bench of the National Commission for Asylum ( Commissione Nazionale per il diritto d ’ Asilo , Sezione Speciale Stralcio ) held, after having heard the applicant, that she did not qualify for the status of refugee within the meaning of the 1951 Geneva Refugee Convention but it did grant her a residence permit for compelling humanitarian reasons under Article 5 § 6 of Law Decree ( decreto legge ) no. 286/1998 . On the basis of this decision, the applicant was provided with a residence permit valid until October 2006.

9 . In December 2006, having moved to Naples, the applicant applied to the Naples police headquarters for a renewal of this residence permit. After this request had been accepted by the National Commission who found that she was still entitled to international protection, she received a residence permit which was valid until December 2007. I n February 2008, at the applicant ’ s request, the basis for her residence permit was changed into a residence permit for work as an employee which was valid until December 2009.

10 . In November 2009, the applicant entered the Netherlands and applied for asylum. In her interviews with the Netherlands immigration authorities, she stated inter alia that she was a Somalian national, born in 1981. She further stated that she was pregnant, but that the father had left her after she had become pregnant. She also declared that she had lived in Italy before going to the Netherlands, and that she had a sister who was living in the Netherlands. When she became pregnant, compatriots had provided her with financial aid in order to leave Italy so as to improve the future prospects of her child.

11 . The examination and comparison of the applicant ’ s fingerprints by the Netherlands authorities generated a Eurodac report, indicating that she had applied for asylum in Italy in April 2003.

12 . I n March 2010, the applicant gave birth to a daughter in the Netherlands.

13 . In May 2010 the Italian authorities accepted the request of Netherlands authorities to take back the applicant in accordance with the Dublin Regulation.

14 . In June 2010, the Netherlands Minister of Justice ( Minister van 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 she had a baby. The Minister rejected the applicant ’ s argument that she would risk treatment in breach of Article 3 of the Convention in Italy.

15 . The applicant ’ s appeal against t his decision was rejected in October 2010 by the single-judge chamber chamber ( enkelvoudige kamer ) of the Regional Court ( rechtbank ) of The Hague . Although possible, the applicant did not file a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) .

16 . In January 2011, the applicant filed a fresh asylum request in the Netherlands which, pursuant to section 4:6 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), must be based on newly emerged facts or altered circumstances ( nieuw gebleken feiten of veranderde omstandigheden ; “nova”) warranting a revision of the initial decision taken. During her interview on this new request, the applicant stated, inter alia , that her sister had been granted international protection in the Netherlands, that the father of her daughter was currently living in Norway, that she had seen him in July 2010 when he had visited a relative in the Netherlands and that she was now carrying a second child from him.

17 . In February 2011, the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ) rejected this fresh asylum request, concluding that it was not based on nova. The Minister rejected the applicant ’ s claim that, being pregnant, she should be admitted to the Netherlands asylum procedure as the principle of mutual interstate trust could longer be seen as applicable in respect of Italy.

18 . In May 2011, the applicant gave birth in the Netherlands to a second child.

19 . The applicant ’ s appeal against the Minister decision taken in February 2011 was accepted in December 2011 by the single-judge chamber of the Regional Court of The Hague. The court quashed the impugned decision and ordered the Minister to take a fresh decision. It considered – taking into account several reports on the situation of asylum seekers in Italy, drawn up between January and May 2001 by different non-governmental organisations, a report of Thomas Hammarberg , the Council of Europe ’ s Commissioner for Human Rights, drawn up in September 2011 after a formal visit to Italy in May 2011, the indication of several interim measures by the Court under Rule 39 of the Rules of Court – that the applicant had submitted sufficient concrete indications that Italy failed to respect its international treaty obligations in respect of asylum seekers and refugees. It therefore concluded that the Minister could not, without further examination, have relied on the principle of mutual interstate trust.

20 . I n May 2012, the applicant gave birth in the Netherlands to a third child.

21 . The Minister ’ s further appeal against this judgment was accepted in November 2012 by the Administrative Jurisdiction Division. It quashed the judgment given in December 2011 in so far as the court had not indicated that the legal effects of the decision taken in February 2011 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 decision taken in February 2011 were to remain intact and upheld the impugned judgment for the remainder. Accepting that the applicant – being a pregnant, single mother – could be regarded as a vulnerable alien, it agreed with the Minister that the applicant ’ s transfer to Italy would not be contr ary to her rights under Article 3 of the Convention. However, having noted the Court ’ s judgment in the case of M.S.S. v. Belgium and Greece ( [GC], no. 30696/09, ECHR 2011 ), the Administrative Jurisdiction Division noted that the applicant had relied as from the outset on the Hammarberg report and other documents and found that these had not been examined by the Minister in the manner as described in the M.S.S. judgment. As it did not find any reason for reaching a different decision in the applicant ’ s case, in particular having noted that prior to every transfer the Italian authorities are notified by the Netherlands authorities about the personal situation and – where necessary – special care needs of the person concerned, the Administrative Jurisdiction Division decided that the legal consequences of the Minister ’ s decision taken in February 2011 were to remain intact. No further appeal lay against this decision.

22 . In January 2013, pointing out that she was pregnant and due to give birth i n April 2013, the applicant filed a request under section 64 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ) for deferral of her removal for medical reasons, submitting that due to her pregnancy she was unfit for travel. Referring to Chapter A4/7.6 of the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire ), pursuant to which pregnant women are not expelled by aircraft in the six weeks leading up to the due date or the first six weeks after giving birth, the Minis ter rejected this request .

23 . Later in January 2013, submitting that she was a single mother of three children and pregnant with a fourth child, the applicant filed an objection with the Minister of Security and Justice ( Minister van Veiligheid en Justitie ) against their actual transfer to Italy which had been scheduled. On the same day, she filed a request for a provisional measure with the Regional Court of The Hague to the effect that transfer would be stayed pending the determination of her objection.

24 . In the last week of January 2013, the Netherlands authorities informed their Italian counterparts that the escorted transfer of the applicant – specifying that she was pregnant and due to give birth in April 2013 – and her three young children had been scheduled. This letter contained detailed information about their scheduled journey by air.

25 . In the beginning of February 2013, the provisional-measures judge of the Regional Court of The Hague rejected the applicant ’ s request for a provisional measure , noting that the Italian authorities had been duly notified of the transfer of the applicant and her children and their particular circumstances and that they would be accompanied by four escorts who would personally hand them over to the Italian authorities. The judge did not find that the transfer would entail a violation of Article 3 or Article 8 of the Convention.

26 . The application was introduced to the Court on 17 January 2013. On 6 February 2013, the Acting 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 Acting President further decided under Rule 54 § 2 (b) to give notice of the application to the Netherlands Government. The Acting President also decided to put a factual question to the Netherlands Government (Rule 54 § 2 (a)), which concerned the information provided to the Italian authorities in relation to the applicant ’ s scheduled transfer to Italy. The Netherlands Government submitted their reply on 26 February 2013.

27 . On 6 February 2013, the Acting President of the Section further decided that information was required from the Italian Government and a number of factual questions were put t o the Government of Italy (Rule 44 § 3 (a)), which concerned the applicant ’ s situation in Italy before her arrival in the Netherlands. The Italian Government submitted their replies on 26 and 28 March 2013 and the applicant ’ s comments in reply were submitted on 6 May 2013.

B. Relevant domestic law and practice

28 . 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) .

COMPLAINT

29 . T he applicant c omplain s that the removal to Italy of herself and her children without any guarantees from the Italian Government that she would be able to apply for asylum and that she and her children would be provided with reception facilities and medical care in Italy pending the determination of her asylum request would be contrary to Article 3 of the Convention.

QUESTIONS TO THE parties

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?