THIRD SECTION

Application no . 47607/07 S . H . against the Netherlands lodged on 31 October 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms S.H., is a citizen of Iran . She was born in 1977 and is currently staying in the Netherlands . She is represented before the Court by Mr P.J.Ph . Dietz de Loos , a lawyer practising in Wassenaar .

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

On 31 August 2006 the applicant lodged her first unsuccessful asylum application based on adultery. By decision of 29 January 2007 this application was refused. By judgment of 2 August 2007 the Regional Court of The Hague ( rechtbank ) dismissed her appeal. Her further appeal to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) was declared inadmissible by judgment of 25 September 2007 for not meeting a formal requirement, in that she had failed to provide the Administrative Jurisdiction Division with a copy of the impugned judgment.

On 30 November 2007 the applicant lodged a second asylum application. She based this second application on the same facts as the first application, as well as on the additional fact that she now had a son born out of wedlock. By decision of 6 December 2007 this application was refused, as she had failed to establish newly emerged facts and/or circumstances warranting a revision of the negative decision taken on her first request. The final negative decision on this second asylum request was taken by the Administrative Jurisdiction Division on 11 May 2009.

On 25 February 2008 the applicant applied for a residence permit based on her family life with her partner and son in the Netherlands . By decision of 5 March 2008 this was rejected, as she did not hold the prescribed provisional residence permit ( machtiging voorlopig verblijf ). The applicant filed an objection against this decision. By decision of 14 May 2008 this objection was dismissed. By decision of 19 May 2009, the decision of 14 May 2008 was withdrawn by the Deputy Minister of Justice. In a fresh decision given on 27 October 2009, the objection was again dismissed. The final negative decision on this request for a residence permit was taken by the Administrative Jurisdiction Division on 26 August 2010.

COMPLAINTS

The applicant complains under Article 2 and 3 of the Convention that there are substantial grounds for believing that she will be subjected to treatment prohibited by those provisions if she were expelled to Iran . She further complains that her expulsion from the Netherlands would be contrary to her rights under Article 8 of the Convention. Finally, she complains that she did not have an effective remedy as guaranteed by Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. In the light of the applicant ’ s claims and the documents which have been submitted, would she face a real risk of being subjected to treatment in breach of Articles 2 and/or 3 of the Convention if she were to be expelled to Iran ?

2. 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? What is the relevance of the fact that, apart from not holding a provisional residence permit, the applicant appears to meet all the other requirements for a residence permit? In the alternative, does Article 8 of the Convention impose a positive obligation on the Netherlands authorities to allow the first applicant to reside in the Netherlands ? If so, has this positive obligation been met?