The applicant, national of Iran based her asylum application on the fact that she is a lesbian and that she left Iran to escape forced marriage to a man. The applicant claimed that after her departure from Iran, her parents became aware of her sexual orientation and her father threatened to kill her if she returned. The applicant also stated that she no longer believes in Islam. The State Secretary considered it credible that the applicant is apostate from Islam but rejected her application because it assessed the alleged sexual orientation as not credible and the Court of the Hague confirmed the negative decision. The applicant appealed against, and the Council of State referred the case back for re-examination to the Court of the Hague by an earlier decision of 21 November 2019, considering that some aspects related to the forced marriage and an alleged attempted rape by the intended marriage partner remained not clarified. The Court of the Hague rejected again an appeal on 7 January 2022 and the applicant contested the decision and informed the Council of State that her arguments on threats received on social media in relation to her sexual orientation and apostasy were not taken into consideration by the lower court.  

The applicant has an Instagram account on which she posts messages related to her sexual orientation and apostasy from Islam. She also submitted screenshots of threats she received in response to those messages, including one alleged death threat from her father and another response that included an announcement that a report will be made to FATA, Iran's cyber police. The applicant argued that these threats substantiate her alleged fear of persecution upon return.

The Court of the Hague considered that if the Council of State has already referred a case back to it but has already ruled on a number of grounds for appeal in its decision, the dispute in the appeal phase after the referral concerns remained aspects that the court has yet to rule on. However, this rule must be disapplied by the administrative court if there are circumstances as referred to in paragraph 45 of the ECtHR, Bahaddar judgement of 19 February 1998, specifically when there is a risk of violation of Article 3 ECHR.

The Council of State noted that although the views of the State Secretary on the sexual orientation of the applicant and her apostasy were no longer part of the dispute, the Court of the Hague should have assessed, in view of the seriousness and concrete nature of the Instagram threats, whether the Bahaddar circumstances arise in the case and, in that context, should have given the State Secretary the opportunity to take a position on this. The Council of State noted that the Iran General Official Report of February 2021 mentions, among other things, that LGBTI people run a disproportionate chance of being the victim of reprisals from family, friends and others, for example because they see homosexuality as a violation of family honour. The State Secretary considered it credible that the applicant is apostate from Islam, thus it is also important to note that, according to this official message, critical religious expressions on social media by apostates about their apostasy from abroad can lead to (criminal) prosecution upon return. 

The Council of State allowed the appeal as it considered that the Court of the Hague should have included the Instagram threats in the assessment and because the answer to the question whether Bahaddar circumstances arise in this case requires further investigation by the State Secretary into the Instagram threats, the later will have to assess the consequences of the outcome of this investigation for the question of whether the applicant needs international protection.