CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 3 octobre 2014

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THE NETHERLANDS   (Application no. 12738/10)                     JUDGMENT     STRASBOURG   3 October 2014           This judgment is final but may be subject to editorial revision. In the case of Jeunesse v. the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Dean Spielmann, President,   Josep Casadevall,   Guido Raimondi,   Ineta Ziemele,   Mark Villiger,   Isabelle Berro-Lefèvre,   Corneliu Bîrsan,   Alvina Gyulumyan,   Ján Šikuta,   Luis López Guerra,   Nona Tsotsoria,   Ann Power-Forde,   Işıl Karakaş,   Vincent A. De Gaetano,   Paul Mahoney,   Johannes Silvis,   Krzysztof Wojtyczek, judges,   and Lawrence Early, Jurisconsult, Having deliberated in private on 13 November 2013 and on 2 July 2014, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 12738/10) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Surinamese national, Ms Meriam Margriet Jeunesse (“the applicant”), on 1 March 2010. 2.     The applicant was represented by Ms G. Later, a lawyer practising in The Hague. The Netherlands Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3.     The applicant alleged that the refusal to exempt her from the obligation to hold a provisional residence visa and the refusal to admit her to the Netherlands violated her rights under Article 8 of the Convention. 4.     The application was allocated to the Third Section of the Court (Rule   52 §   1 of the Rules of Court). On 4 December 2012 it was declared partly admissible by a Chamber of that Section composed of the following judges: Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria and Johannes Silvis, judges, and Santiago Quesada, Section Registrar. On 14 May 2013 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. 6.     The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the non-governmental organisations Defence for Children and the Immigrant Council of Ireland – Independent Law Centre, the President having authorised them to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 13 November 2013 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Ms   L. Egmond , Ministry of Foreign Affairs,   Deputy Agent , Ms   C. Coert , Ministry of Security and Justice, Ms   L. Hansen , Immigration and Naturalisation Service, Ms   N. Jansen , Immigration and Naturalisation Service,   Advisers ; (b)     for the applicant Ms   G. Later , Mr   A. Eertink ,   Counsel , Ms   M. Marchese ,   Adviser .   The Court heard addresses by Ms Later and Ms Egmond as well as answers given by Ms Later, Mr Eertink and Ms Egmond to questions put by judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1967 and is living in The Hague. 9.     In March 1987 the applicant met and started a relationship with Mr   W., who – like the applicant – was born and had always lived in Suriname. Both of them had acquired Surinamese nationality in 1975 when Suriname gained its independence (Article 3 of the Agreement between the Kingdom of the Netherlands and the Republic of Suriname concerning the assignment of nationality ( Toescheidingsovereenkomst inzake nationaliteiten tussen het Koninkrijk der Nederlanden en de Republiek Suriname ), see paragraph 62 below). In September 1989, the applicant and Mr W. started to cohabit in the house of the latter’s paternal grandfather in Suriname. 10.     On 19 October 1991, Mr W. travelled from Suriname to the Netherlands, holding a Netherlands visa for the purpose of stay with his father in the Netherlands. In 1993, Mr W. was granted Netherlands nationality which entailed the renunciation of his Surinamese nationality. 11.     Mr W. has one sister, two brothers and one half-brother who are living in the Netherlands. Two other half-brothers and one half-sister are living in Suriname. The applicant has one brother, G., who was expelled from the Netherlands to Suriname in 2009. The applicant has also one half-brother and one half-sister who are living in the Netherlands. She has another half-sister who is living in Suriname. A.     The applicant’s requests for a Netherlands residence permit 12.     Between 1991 and 1995, the applicant filed five unsuccessful requests for a Netherlands visa for the purpose of visiting a relative. These requests were rejected because her sponsor ( referent ) was insufficiently solvent, had failed to sign the required affidavit of support ( garantverklaring ) or had failed to supply sufficient information required for the assessment of the visa request. The applicant did not challenge any of these rejections in administrative appeal proceedings. 13.     On 19 November 1996 the applicant filed a sixth visa request for the purpose of visiting a relative. After this request had been granted on 4   March 1997, the applicant entered the Netherlands on 12 March 1997 and did not return to Suriname when her visa expired 45 days later. To date, she has been staying in the Netherlands. She lived in Rotterdam until 20 July 1998, when she moved to The Hague. Since 17 December 1998 she has been living at the same address in The Hague. 1.     The request of 20 October 1997 14.     On 20 October 1997, the applicant applied for a residence permit. According to the applicant, she had done so for the purpose of taking up residence with her Netherlands-national partner Mr W. According to the Government, the applicant’s stated aim had been to take up “paid employment”. On 16 February 1998, the Deputy Minister of Justice ( Staatssecretaris van Justitie ) decided not to process the application ( buiten behandeling stellen ) as the applicant had on two occasions failed to appear in person before the immigration authorities for the purpose of giving further information about her application. When, on 13 February 1998, the applicant’s lawyer had requested a new appointment on the ground that she would be unable to attend the interview scheduled for 16 February 1998, she was informed by the immigration authorities that – despite her lawyer’s absence – the applicant should appear in person. The applicant did not appear on 16 February 1998. The Deputy Minister’s decision of 16   February 1998 was notified to the applicant on 23 February 1998 and she was ordered to leave the Netherlands within seven days. 15.     The applicant filed an objection ( bezwaar ) against the decision of 16   February 1998. As this objection was denied suspensive effect, she applied for a provisional measure ( voorlopige voorziening ) in the form of a court injunction preventing her expulsion pending the determination of her objection. This application was rejected on 23 December 1999 by the Acting President of the Regional Court ( rechtbank ) of The Hague sitting in Haarlem. The applicant’s objection against the decision of 16 February 1998 was rejected by the Deputy Minister on 17 January 2000. The applicant’s appeal against this decision to the Regional Court of The Hague and her accompanying application for a provisional measure were rejected on 12 July 2001 by the Regional Court of The Hague sitting in Utrecht. No further appeal lay against this ruling. 16.     In the meantime, the applicant had married Mr W. on 25 June 1999 and, in September 2000, a son was born of this marriage. Under the Netherlands nationality rules, the applicant’s child is a Netherlands national. Since the child was unwell, he required lengthy treatment in hospital. He is currently attending secondary school and has no health problems. 2.     The request of 20 April 2001 17.     On 20 April 2001, the applicant applied unsuccessfully for a residence permit on the basis of the so-called three-year policy ( driejarenbeleid ) or for compelling reasons of a humanitarian nature. Under this three-year policy a residence permit could be granted if a request for such a permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications such as, for instance, a criminal record. In the course of the proceedings on this request, the provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague sitting in Amsterdam granted the applicant’s request for a provisional measure (injunction on removal) on 23 February 2004. The final decision was given on 17 May 2004 by the Regional Court of The Hague sitting in Amsterdam. 18.     On 10 December 2005, a second child was born of the applicant’s marriage. This child also holds Netherlands nationality. 3.     The request of 23 January 2007 19.     On 23 January 2007, the applicant filed a request for a residence permit for the purpose of stay with her children in the Netherlands. This request was rejected 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 grant of a residence permit ( verblijfsvergunning ) which confers more permanent residence rights. The applicant was not exempted from the obligation to hold a provisional residence visa. She challenged this decision unsuccessfully in administrative appeal proceedings in which the final decision was taken by the Regional Court of The Hague sitting in Haarlem on 19 April 2007. 20.     On 7 May 2007, the applicant requested the Deputy Minister of Justice to reconsider ( heroverwegen ) the negative decision on her last request. On 28 September 2007, the applicant filed a complaint with the Deputy Minister on account of the latter’s failure to reply to her request for reconsideration. By letter of 12 November 2007, the Deputy Minister informed the applicant that although her complaint concerning delay was well-founded there was no reason for a reconsideration of the decision. 4.     The request of 28 September 2007 21.     On 28 September 2007, the applicant applied for a grant of a residence permit at the discretion of the Deputy Minister ( conform beschikking staatssecretaris ) based on grounds of special and individual circumstances ( vanwege bijzondere en individuele omstandigheden ). 22.     On 7 July 2008, the Deputy Minister of Justice rejected this application. The applicant filed an objection with the Deputy Minister against this decision as well as an application to the Regional Court of The Hague for a provisional measure (injunction on removal pending the objection proceedings). On 17 November 2008, having noted that this request was not opposed by the Deputy Minister, the Regional Court of The Hague granted the provisional measure. On 11 March 2009, after a hearing on the applicant’s objection held on 15 January 2009, the Deputy Minister rejected the applicant’s objection. 23.     The applicant’s appeal against the decision of 11 March 2009 to the Regional Court of The Hague and her accompanying application for a provisional measure in the form of an injunction on her removal pending the determination of her appeal were rejected on 8 December 2009 by the provisional-measures judge of the Regional Court of The Hague sitting in Haarlem. In its relevant part, this ruling reads as follows: “2.11     It is not in dispute that the appellant does not hold a valid provisional residence visa and that she is not eligible for an exemption from the requirement to hold such a visa under section 17 § 1 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ) or section 3.71 § 2 of the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ). It is only in dispute whether reason dictates that the defendant should exempt the appellant from the obligation to hold a provisional residence visa on the basis of section 3.71 §   4 of the Aliens Decree [for reasons of exceptional hardship ( onbillijkheid van overwegende aard )]. 2.12     The Regional Court finds that the defendant could reasonably conclude that in the present case there are no special and individual circumstances on the basis of which insistence on compliance with the visa requirement would entail exceptional hardship. ... 2.18     The appellant’s reliance on Article 8 of the Convention fails. There is family life between the appellant and her husband and her minor children, but the defendant’s refusal to exempt her from the obligation to hold a provisional residence visa does not constitute an interference with the right to respect for family life as the defendant’s decision did not deprive her of a residence permit enabling her to enjoy her family life in the Netherlands. 2.19     It does not appear that there is a positive obligation for the Netherlands State under Article 8 of the Convention to exempt the applicant, contrary to the policy pursued in this area, from the obligation to hold a provisional residence visa. It is of importance at the outset that there has been no appearance of any objective obstacle to the enjoyment of family life outside the Netherlands. Taking into account the young age of the appellant’s children, it can also reasonably be expected that they would follow the appellant to Suriname for the duration of the proceedings relating to the provisional residence visa. This is not altered by the fact that both children are Netherlands nationals. The fact that the appellant’s husband is currently being detained gives no cause for finding that ... there is an objective obstacle. 2.20     The appellant has cited the judgments of the European Court of Human Rights in the cases of Rodrigues da Silva [ and Hoogkamer v. the Netherlands , no. 50435/99, ECHR 2006 ‑ I], Said Botan [ v. the Netherlands (striking out), no. 1869/04, 10 March 2009] and Ibrahim Mohamed [ v. the Netherlands (striking out), no. 1872/04, 10   March 2009]. This cannot succeed, for the following reasons. The case of Rodrigues da Silva did not concern a temporary separation in connection with maintaining the requirement to hold a provisional residence visa, so the case cannot be said to be comparable. In the cases of Said Botan and Ibrahim Mohamed the European Court found that the reasons for lodging the complaints had been removed, because a residence permit had been granted to the complainants in those cases. For that reason, their complaints were not considered further. The Regional Court fails to see in what manner the European Court’s findings in those two cases could be of relevance to the appellant’s case. 2.21     The appellant has further invoked Article 2 of the International Convention on the Rights of the Child. In so far as the provisions invoked entail a directly applicable norm, they have no further implications beyond the fact that in proceedings such as those at hand, the interests of the children concerned must be taken into account. In the decision of 11 March 2009, the situation of the appellant’s two minor children was explicitly taken into account in the assessment. As the provisions invoked do not contain a norm as regards the weight that must be given in a concrete case to the interests of a child, there is no ground for finding that those provisions have been violated. 2.22     The Regional Court will declare the appeal unfounded.” 24.     On 2 August 2009, upon his return to the Netherlands from a trip to Suriname for the funeral of his foster mother, the applicant’s husband had been found to have swallowed cocaine pellets. He was placed in pre-trial detention. On 8 October 2009, a single-judge chamber ( politierechter ) of the Haarlem Regional Court convicted him of offences under the Opium Act ( Opiumwet ) and sentenced him to seven months’ imprisonment. On the basis of this conviction, the Netherlands Royal Constabulary ( Koninklijke Marechaussee ) included his name on a blacklist provided to airline companies operating direct flights between the Netherlands and Aruba, the former Netherlands Antilles, Suriname and Venezuela. His name was to remain on the list for a period of three years, the aim being to prevent him from reoffending. On 31 December 2009, after having served his sentence, the applicant’s husband was released from prison. His name was removed from the airline blacklist on 2 August 2012. 25.     The applicant’s appeal of 7 January 2010 to the Administrative Jurisdiction Division of the Council of State ( Afdeling bestuursrechtspraak van de Raad van State ) against the judgment of 8 December 2009 of the provisional-measures judge of the Regional Court of The Hague was dismissed on 6 July 2010. The Administrative Jurisdiction Division found that the appeal did not provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ). Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision. 5.     The request of 16 April 2010 26.     In the meantime, the applicant filed a fifth request on 16 April 2010 for a residence permit with the Minister of Justice ( Minister van Justitie ) for the purpose of stay with a child, arguing that she should be exempted from the obligation to hold a provisional residence visa on grounds of special and individual circumstances. 27.     This request was rejected on 11 May 2010 by the Minister, who held that there was no reason to exempt the applicant from the obligation to hold a provisional residence visa and that the refusal of a residence permit was not contrary to Article 8 of the Convention. While accepting that there was family life within the meaning of Article 8 between the applicant, her husband and their children, the Minister found that there was no interference with the right to respect for family life as the refusal to grant the applicant’s request for exemption did not deprive her of a residence permit which enabled her to exercise her family life in the Netherlands. 28.     As to the question whether the applicant’s rights under Article 8 entailed a positive obligation for the Netherlands to grant her a residence permit, the Minister found that the interests of the Netherlands State in pursuing a restrictive immigration policy outweighed the applicant’s personal interest in exercising her right to family life in the Netherlands. In balancing these competing interests, the Minister took into account the following: already in Suriname and before her arrival in the Netherlands the applicant had been in a relationship with her current spouse; she had entered the Netherlands without having been granted entry clearance for joining her partner as required under the relevant immigration rules; and she had created her family in the Netherlands without holding a residence permit. When it transpired in the course of the proceedings that the applicant was pregnant, the Minister further held that it had not been established, nor did it appear that the applicant would be unable – should hospitalisation be necessary – to give birth in a hospital in Suriname or that there would be any insurmountable objective obstacles to the exercise of family life in Suriname. On this point, the Minister noted that Dutch was spoken in Suriname and that the transition would not therefore be particularly difficult for the applicant’s children, who could continue their education in Suriname in a normal manner. 29.     The Minister added that the mere fact that the applicant’s spouse and children were Netherlands nationals did not entail an automatic obligation for the Netherlands authorities to grant the applicant a residence permit, or lead to the conclusion that the exercise of family life would only be possible in the Netherlands. The Netherlands authorities could not be held responsible for the consequences of the applicant’s personal choice to come to, settle and create a family in the Netherlands without any certainty as to her entitlement to permanent residence. In the balancing exercise, the Minister attributed decisive weight to the fact that the applicant had never resided lawfully in the Netherlands and that there was no indication whatsoever that it would be impossible to exercise family life in Suriname. 30.     The Minister further rejected the applicant’s argument that she ought to be exempted from the visa requirement, on the basis that inter alia the length of the applicant’s stay in the Netherlands was a consequence of her personal choice to continue to remain there. She had met with several refusals of her applications for a Netherlands residence permit but had nevertheless opted each time to file a fresh request, thus accepting the risk that, at some point in time, she would have to leave the Netherlands, at least, temporarily. The Minister further considered that the applicant had been born and raised in Suriname where she had resided most of her life and, given her age, she should be regarded as capable of returning to and fending for herself in Suriname, if need be with financial and/or material support from the Netherlands, pending the determination of an application for a provisional residence visa to be filed by her in Suriname. The Minister concluded on this point that the case disclosed no circumstances warranting a finding that the decision not to exempt the applicant from the visa requirement constituted exceptional hardship within the meaning of section 3.71 § 4 of the Aliens Decree 2000. 31.     On 17 May 2010, the applicant filed an objection against this decision with the Minister. She filed additional grounds for her objection and furnished further information by letters of 20 and 25 May and 8 June 2010. 32.     On 2 July 2010, the applicant requested the Regional Court of The Hague to issue a provisional measure (injunction on expulsion pending the outcome of the objection proceedings). 33.     On 3 August 2010, following a court hearing held on 28 July 2010 and having regard to pending proceedings taken by the applicant seeking deferral of her removal under section 64 of the Aliens Act 2000 (see paragraph 53 below), the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam rejected the request for a provisional measure on the basis that it was moot. 34.     On 19 December 2011 the Minister rejected the applicant’s objection of 17 May 2010. An appeal by the applicant against that decision was rejected on 17 July 2012 by the Regional Court of The Hague sitting in Dordrecht. In so far as relevant, its judgment reads: “2.4.1.     It must be examined whether the defendant could have refused to exempt the appellant from the obligation to hold a provisional residence visa, as required under section 3.71 § 1 of the Aliens Decree 2000, on the ground that removal is not contrary to Article 8 of the Convention. 2.4.2.     It is not in dispute between the parties that there is family life between the appellant and her husband and their three minor children. Refusing the application [for a residence permit] does not constitute interference within the meaning of Article   8 § 2 of the Convention. No residence permit which actually enabled the appellant to enjoy family life in the Netherlands has been taken away from her. The subsequent question arises whether there exist such facts and circumstances that the right to respect for family life may be said to entail a positive obligation for the defendant to allow the applicant to reside [in the Netherlands]. In making this assessment, a ‘fair balance’ must be found between, on the one hand, the interests of the alien concerned in enjoying family life in the Netherlands and, on the other, the general interest of the Netherlands State in pursuing a restrictive immigration policy. In this balancing exercise, the defendant has a certain margin of appreciation. 2.4.3.     It was reasonable for the defendant to attach more weight to the general interest of the Netherlands State than to the personal interests of the appellant and her family members. The defendant did not have to accept an obligation to grant the appellant residence in the Netherlands on the basis of Article 8 of the Convention. In this balancing exercise, the defendant was entitled to weigh heavily to the appellant’s disadvantage the fact that she had started family life in the Netherlands when she had not been granted a residence permit for this purpose, and that she had further intensified her family life despite the refusal of her requests for residence. This is not altered by the fact that for a certain period the appellant was lawfully resident while awaiting the outcome of proceedings concerning a request for a residence permit. 2.4.4.     The defendant was entitled to take the position that the consequences of the appellant’s choices were at her own risk. According to the case-law of the European Court of Human Rights ( Rodrigues da Silva and Hoogkamer v. the Netherlands [no.   50435/99, ECHR 2006 ‑ I]), where family life has started while no residence permit for that purpose has been granted, removal will lead to a violation of Article 8 only in the most exceptional circumstances. The appellant has not established that, as regards her and her family, there are such exceptional circumstances. Her reliance on the judgments in Rodrigues da Silva and Hoogkamer and Nunez v. Norway (no.   55597/09, 28 June 2011) fails, as her situation is not comparable to the one in the cases of Rodrigues da Silva and Nunez . In those cases it was established that the children could not follow their mother to the country of origin. With the removal of the mother, contact with the children would become impossible. However, in the appellant’s case, it has not become sufficiently apparent that her husband and children could not follow her to her country of origin to continue family life there. The appellant has insufficiently demonstrated that her family members will encounter difficulties in entering Suriname. The consequence of her husband’s inclusion on a blacklist is that airlines can refuse to allow him on direct flights from the Netherlands to the Netherlands Antilles, Aruba, Suriname and Venezuela during the period between 2 August 2009 and 2 August 2012. This does not mean that it is self-evident that the husband will not be admitted to Suriname. The appellant has not established that it would be impossible for her husband to travel to Suriname in another manner. In addition, it is important to note that registration on the blacklist is only of a temporary nature. 2.4.5.     No other circumstances have appeared on the basis of which the existence of an objective obstacle to continued family life in Suriname must be accepted. There is also no question of excessive formalism. The appellant’s situation is not comparable to the one in the case of Rodrigues da Silva. The defendant has taken the interests of the minor children sufficiently into account in the balancing exercise. The children were all born in the Netherlands and hold Netherlands nationality. At the time the impugned decision was taken, they were respectively eleven, six and one year old. The children have always lived in the Netherlands. Although the oldest child has built up bonds with the Netherlands, the defendant did not have to accept this as a basis for holding that the children could not take root in Suriname. In this connection it is also relevant that Dutch is spoken in Suriname and that both parents hail from Suriname. 2.4.6.     This is not altered by the fact that the appellant’s husband and children hold Netherlands nationality and, on the basis of Article 20 of the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’), can derive rights from their EU citizenship. It can be deduced from the considerations of the Court of Justice of the European Union (hereinafter ‘ECJ’) in the Dereci et al. judgment of 15 November 2011 (C-256/11), in which a further explanation is given of the Ruiz Zambrano judgment of 8 March 2011 (C-34/09), that in answering the question whether a citizen of the EU who enjoys family life with a third-country national will be denied the right to reside in EU territory flowing directly from Article 20 of the TFEU, only a limited importance is given to the right to respect for family life. As follows from paragraphs 68 and 69 of the Dereci judgment, this right is not, as such, protected by Article 20 of the TFEU but by other international, EU and domestic rules and regulations, such as Article 8 of the Convention, Article 7 of the Charter of Fundamental Rights of the European Union, EU Directives and section 15 of the Aliens Act 2000. In answering this question the desire of family members to reside as a nuclear family unit in the Netherlands or the European Union is, inter alia , also of limited importance. 2.4.7.     The situation of an EU citizen being denied the right to reside in EU territory arises only when the EU citizen is so dependent on the third-country national that, as a consequence of the decision by the defendant, he has no other choice than to stay with that national outside EU territory. In the appellant’s case, that has not occurred. The appellant’s children can be cared for by their father. The father also has Netherlands nationality. The appellant’s husband and children are not obliged or actually compelled to go with her to Suriname in connection with the application for a provisional residence visa. Their rights as EU citizens are thus not breached. 2.4.8.     It was reasonable for the defendant to take the view that there was no appearance of very special individual circumstances leading to undue hardship. The proceedings concerning the appellant’s previous requests for a residence permit and the course of events during her placement in aliens’ detention for removal purposes cannot be regarded as such. The lawfulness of the decisions taken in those proceedings cannot be examined in the present appeal proceedings. The appellant has further not substantiated her claim that, when she submitted her first request for a residence permit, she complied with all the requirements and that she should then have been granted a residence permit. ...” The Regional Court went on to find that the applicant had not substantiated her alleged medical problems or why these problems should lead to exempting her from the obligation to hold a provisional residence visa. The court further found that the applicant had not demonstrated her claim that, apart from the requirement to hold a provisional residence visa, she met all requirements for the issuance of a residence permit. 35.     On 14 August 2012, the applicant filed a further appeal with the Administrative Jurisdiction Division. No further information about the proceedings on this latest request for a residence permit has been submitted by the parties. B.     Main steps taken aimed at the applicant’s removal from the Netherlands and her placement in aliens’ detention 36.     On 5 January 2007, the aliens’ police ordered the applicant to report to them on 10 January 2007 so that she could be served with notice to leave the country within two weeks. This order was withdrawn owing to the applicant’s third request for a residence permit filed on 23   January 2007 (see paragraph 19 above). 37.     On 26 February 2010, the applicant’s lawyer was informed by the aliens’ police that – as the applicant’s appeal against the judgment of 8   December 2009 (see paragraphs 23 and 25 above) did not have suspensive effect – they would proceed with the applicant’s removal. 38.     On 10 April 2010, having failed to respond to a summons of 4   March 2010 to report to the aliens’ police, the applicant was placed in aliens’ detention ( vreemdelingenbewaring ) for removal purposes in accordance with section 59 § 1 (a) of the Aliens Act 2000. She was taken to the Zeist detention centre where she was found to be pregnant, her due date being 14 December 2010. 39.     The applicant’s three successive release requests were rejected by the Regional Court of The Hague sitting in Rotterdam on 27 April, 1   June and 8 July 2010, respectively. In each decision, the Regional Court found that there were sufficient prospects of expulsion within a reasonable time frame and that the Netherlands authorities were pursuing the applicant’s removal with sufficient diligence. In its rulings, the Regional Court also rejected the applicant’s arguments that her pregnancy rendered her detention contrary to Article 3 and that, against that background, her conditions of detention were incompatible with that provision. In this context, in a letter of 29 June 2010 and addressed to the applicant’s lawyer who submitted it in the proceedings to the Regional Court, the Netherlands section of Amnesty International expressed its concern about the applicant’s placement in aliens’ detention. Although aware that the applicant had failed to respect the duty to report imposed on her, Amnesty International considered that a less severe measure than deprivation of liberty would be appropriate in the particular circumstances of the applicant’s case. 40.     In the course of her placement in aliens’ detention, the applicant, on 28 June, 15 July and 3 August 2010, also filed complaints about her conditions of detention with the competent Supervisory Board ( Commissie van Toezicht ) of the two detention centres where she was held. These complaints were decided in two decisions given on 12 and 29 November 2010, respectively. Apart from the applicant’s complaint of 28 June 2010 that she had been required to wear restraints during transports to hospital, which was accepted as well-founded in the decision of 29 November 2010, the applicant’s complaints were dismissed. On 6 June 2011 the Appeals Board ( beroepscommissie ) of the Council for the Administration of Criminal Justice and Juvenile Protection ( Raad voor Strafrechtstoepassing en Jeugdbescherming ) gave final decisions on the applicant’s appeals against the decisions of 12 and 29 November 2010. It held that the use of restraints for pregnant women was impermissible. It also held that the applicant had received too little supplementary nutrition upon arrival at the Rotterdam detention centre. These complaints were considered by the Court in its decision on admissibility of 4 December 2012 (see paragraph 4 above) and were declared inadmissible for the reasons set out therein. 41.     The applicant was released from aliens’ detention on 5 August 2010 and her third child was born on 28 November 2010. 42.     On 25 September 2012, the Consulate General of Suriname in Amsterdam issued a Surinamese passport to the applicant, which is valid until 25 September 2017. II.     RELEVANT DOMESTIC AND SURINAMESE LAW A.     Dutch immigration law and policy 43.     Until 1 April 2001, the admission, residence and expulsion of foreign nationals were regulated by the Aliens Act 1965 ( Vreemdelingenwet 1965 ). Further rules were laid down in the Aliens Decree ( Vreemdelingenbesluit ), the Regulation on Aliens ( Voorschrift Vreemdelingen ) and the Aliens Act Implementation Guidelines ( Vreemdelingencirculaire ). The General Administrative Law Act ( Algemene Wet Bestuursrecht ) applied to proceedings under the Aliens Act 1965, unless indicated otherwise in this Act. 44.     Under section 4:5 § 1 of the General Administrative Law Act, an administrative authority may decide not to process a petition where the petitioner has failed to comply with any statutory rule for processing the petition or where the information and documents provided are insufficient for assessing the petition, provided that the petitioner has been given the opportunity to complete the petition within a period fixed by the administrative authority concerned. 45.     Under section 41 § 1 (c) of the Aliens Decree 1965, foreign nationals wishing to reside in the Netherlands for more than three months were required to hold, for admission to the Netherlands, a valid passport containing a valid provisional residence visa issued by a diplomatic or consular mission of the Netherlands in the country of origin or permanent residence, or failing that, the nearest country in which such a mission is established. The purpose of the requirement of this visa was, inter alia , to prevent unauthorised entry and residence in the Netherlands. Failing a provisional residence visa, entry and residence in the Netherlands were contrary to the provisions of the Aliens Act 1965. However, lack of a provisional residence visa could not lead to a refusal of a residence permit if, at the time of the application, all the other conditions had been met. 46.     On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. Unless indicated otherwise in the Aliens Act 2000, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. 47.     According to the transitional rules, set out in section 11 of the Aliens Act 2000, an application for a residence permit which was being processed at the time this Act entered into force was to be considered as an application under the provisions of the Aliens Act 2000. Because no transitional rules were laid down for the substantive provisions of the aliens’ law, the substantive provisions of the Aliens Act 2000 took effect immediately. 48.     Section 1 (h) of the Aliens Act 2000, as in force at the material time, provided: “In this Act and the provisions based upon it the following expressions shall have the following meanings: ... (h)     provisional residence visa: a visa issued by a Netherlands diplomatic or consular mission in the country of origin or in the country of ordinary residence or by the Office of the Governor of the Netherlands Antilles or by the Office of the Governor of Aruba in those countries, with the prior authorisation of Our Minister for Foreign Affairs, for a stay of longer than three months;” 49.     Section 8(a), (f), (h) and (j) of the Aliens Act 2000 states: “An alien is lawfully resident in the Netherlands only: (a)     on the ground of a residence permit for a fixed period as referred to in section 14 [of this Act, i.e. a residence permit granted for another purpose than asylum]; ... (c)     on the ground of a residence permit for a fixed period as referred to in section 28 [of the Act; i.e. a residence permit granted for asylum]; ... (f)     pending a decision on an application for the issue of a residence permit as referred to in sections 14 and 28 in circumstances where, by or pursuant to this Act or on the ground of a judicial decision, expulsion of the applicant should not take place until the decision on the application has been given; ... (h)     pending a decision on a notice of objection, review or appeal, in circumstances where, by or pursuant to this Act or on the grounds of a judicial decision, expulsion of the applicant should not take place until the decision on the notice of objection or notice of appeal has been given; ... (j)     if there are obstacles to the expulsion as referred to in section 64; ...” 50.     Section 16 § 1(a) of the Aliens Act 2000 reads: “1.     An application for the issue of a residence permit for a fixed period as referred to in section 14 may be rejected if: (a)     the alien does not possess a valid provisional residence visa which corresponds to the purpose of the residence for which application has been made for a residence permit;” 51.     Section 27 of the Aliens Act 2000 provides, in its relevant part, as follows: “1.     The consequences of a decision rejecting an application for the issue of a residence permit for a fixed period as referred to in section 14 or a residence permit for an indefinite period as referred to in section 20 shall be, by operation of law, that: (a)     the alien is no longer lawfully resident, unless another legal ground for lawful residence exists; (b)     the alien should leave the Netherlands of his own volition within the time limit prescribed in section 62, failing which the alien may be expelled, and (c)     the aliens supervision officers are authorised, after the expiry of the time limit within which the alien must leave the Netherlands of his own volition, to enter every place, including a dwelling, without the consent of the occupant, in order to expel the alien. 2.     Paragraph 1 shall apply mutatis mutandis if: (a)     it has been decided under section 24 or under section 4:5 of the General Administrative Law Act that the application will not be processed; ...” 52.     Section 62 § 1 of the Aliens Act 2000 reads: “After the lawful residence of an alien has ended, he must leave the Netherlands of his own volition within four weeks.” 53.     Section 64 of the Aliens Act 2000 provides: “An alien shall not be expelled as long as his health or that of any of the members of his family would make it inadvisable for him to travel.” 54.     Section 3.71 § 1 of the Aliens Decree 2000 reads: “The application for a fixed-term residence permit, as referred to in section 14 of the Act shall be rejected if the alien does not hold a valid provisional residence visa.” 55.     According to section 3.1 § 1 of the Aliens Decree 2000, a foreign national who has made an application for a residence permit is not to be expelled, unless that application, according to the Minister, merely repeats an earlier application. 56.     Under the Aliens Act Implementation Guidelines 2000, the obligation for a foreign national to obtain a provisional residence visa allows the Netherlands authorities to check that the foreign applicant meets all the conditions for the grant of that visa prior to his or her entry into national territory. The power to grant a provisional residence visa is vested in the Netherlands Minister of Foreign Affairs. An application for a provisional residence visa is, in principle, assessed on the basis of the same criteria as a residence permit. Only once such a visa has been issued abroad may the holder travel to the Netherlands and apply for a Netherlands residence permit. In the absence of a provisional residence visa, an alien’s entry into and residence in the Netherlands are unlawful. 57.     The Netherlands Government pursue a restrictive immigration policy due to the population and employment situation in the Netherlands. Aliens are eligible for admission only on the basis of directly applicable international agreements, or if their presence serves an essential Dutch interest, or for compelling reasons of a humanitarian nature (section 13 of the Aliens Act 2000). Respect for family life as guaranteed by Article 8 of the Convention constitutes an obligation under an international agreement. 58.     The admission policy for family formation ( gezinsvorming ) and family reunification ( gezinshereniging ) purposes is laid down in Chapter B1 of the Aliens Act Implementation Guidelines 2000. A partner or spouse of a Netherlands national is, in principle, eligible for admission, if certain further conditions relating to matters, such as, public policy and means of subsistence are met. 59.     Pursuant to section 3.71 § 1 of the Aliens Decree 2000, a petition for a residence permit for the purpose of family formation shall be rejected if the foreign petitioner does not hold a valid provisional r