A Moroccan single mother applied for international protection for herself and on behalf of her three minor children. She claimed that she feared to return to her home country because her youngest child was born in the Netherlands outside of wedlock, and she feared prosecution as sexual relations outside wedlock is punishable under Article 490 and 491 of the Moroccan Penal Code.

On 8 June 2023, the Minister for Asylum and Migration rejected her application as Morocco was considered to be a safe country of origin and the applicant failed to make it plausible that she will face prosecution upon return. An appeal before the District Court of the Hague, seated in Utrecht, was declared unfounded by judgment of 9 August 2023. The applicant lodged an onward appeal before the Council of State.

The Council of State noted that, according to paragraph C7/1.2 of the Vc 2000, an exception applies to the designation of Morocco as a safe country of origin for persons who are facing criminal prosecution and who can make a concrete case that the legal safeguards against violations of rights and freedoms existing in Morocco are not guaranteed in their individual case.

On appeal, the applicant submitted documentation to support the claim that she would be prosecuted if returned to Morocco, including an article by the Austrian Centre for Country of Origin and Asylum Research and Documentation, 'Anfragebeantwortung zu Marokko: Verurteilungen wegen außerehelichem Geschlechtsverkehr; Nennung von konkreten Fällen', of 19 December 2019; a report by MRA/Mobilising for Rights, 'Protection Not Prison: How the criminalisation of sexual relations outside of marriage promotes violence', of June 2022; the 'Short Thematic Official Report on the ne bis in idem principle, foreign criminal judgments and privacy legislation in Morocco' of July 2023; and, an e-mail from MRA/Mobilising for Rights dated 14 December 2023. Based on the evidence cited above, the Council of State noted that in 2020, there were 10,376 criminal prosecutions for extramarital sexual relations taking place in Morocco. 

The Council of State held that criminal provisions on extramarital sexual relations are applied and that there was a non-negligible number of prosecutions. Additionally, the Council of State considered that the District Court was wrong to take into account that the Moroccan authorities are not actively looking for violators of the criminal prohibition on extramarital sexual relations, as in the applicant's case, she would be known to them or become known if she is forcefully returned to her home country. She would also have to apply for an official identity document for her youngest child from the authorities by submitting a Dutch birth certificate on which no father is mentioned. Thus, the Council of State held that the Moroccan authorities would be able to deduce that her youngest child was born from an extramarital relationship. Furthermore, the Council of State considered the e-mail from MRA/Mobilising for Rights which confirmed that when applying for official identity documents for a child born out of wedlock, the authorities would become aware of the violation of the law and will proceed to criminal prosecution. The e-mail also showed that the authorities interpret and apply the means of proof broadly, regularly considering a child of an unmarried mother as a legal confession for extramarital sexual relations. In light of this, the Council of State considered that the applicant rightly argued that her child would be regarded as evidence for extramarital sexual relations.  

The Council of State also noted, based on the aforementioned COI, that foreign criminal judgment and privacy legislation in Morocco states that it is in general permissible in Morocco to prosecute acts committed outside of Morocco, which are considered offences under Moroccan criminal law. Hence, the Council of State upheld the applicants reasoning that it was irrelevant that the extramarital sexual relations took place abroad.

In light of these findings, the Council of State declared the appeal well founded and annulled the judgment of the District Court. The Council of State ruled that the applicant had made it plausible that she would face criminal prosecution if returned to Morocco and that the legal guarantees existing in Morocco against violations of rights and freedoms were not offered in her individual case. The Council of State ordered the Minister for Asylum and Migration to issue a new decision taking into account the interests of the applicant's minor children, as in the event of criminal prosecution and a possible subsequent detention of the applicant, she may lose legal custody of her children in accordance with Moroccan family law.