Illegal aliens suffering from a life-threatening illness have been excluded from the protection of article 3 (right to personal integrity) of the European Convention of Human Rights (ECHR) and of the European Council Directive 2004/83/EC.[1] This post examines the European Court of Human Rights (ECtHR)’s and the European Court of Justice (ECJ)’s positions regarding medical asylum seekers and some of the contradictions emerging from the ECtHR case-law.

The case of S.J. v. Belgium originated in the Belgian Alien Office’s decision to expel Ms S.J., a Nigerian young mother of three, in 2010.[2] Upon her arrival in Belgium in 2007, Ms S.J. was diagnosed with a serious immune system deficiency requiring antiretroviral treatment. She was closely monitored for the following years and as a result her state of health was stabilised. As she had no realistic prospect of obtaining access to the appropriate medical treatment in Nigeria, Ms S.J. requested the ECtHR to declare that her deportation would violate article 3 of the ECHR since it would expose her to a premature death in conditions of acute physical and mental suffering. On 27 February 2014, relying on the principle established in N. v. UK, the ECtHR Chamber ruled that Ms S.J.’s expulsion would not breach article 3.[3] Nonetheless, the Belgian government eventually decided to grant her indefinite leave to remain in Belgium on account of the strong humanitarian considerations characterising her situation.[4] Accordingly, the Grand Chamber struck the case out on 19 March 2015, without departing from the Chamber’s finding of non-violation of article 3.[5]

In his dissent to the Grand Chamber decision, Judge Pinto de Albuquerque strongly criticised the ECtHR’s approach in medical asylum cases and called upon the Court to revisit the ‘unfortunate principle’ laid down in N. v. UK (2008).[6] This case concerned an HIV-infected young Ugandan woman threatened with expulsion from the UK.[7] The Grand Chamber found that her removal to Uganda would not breach article 3 on the basis of the following considerations:

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.[8]

The only case where the ECtHR found the circumstances sufficiently exceptional to conclude that the applicant’s removal would be contrary to article 3 was D. v. UK (1997).[9] The applicant was in an advanced stage of Aids and his short life expectancy was contingent on the continuation of the medical treatment available to him in the UK. He was close to death and had formed a bond with the carers who supported him through the end of his life. As he did not have any familial, social or other support in his country of origin, St Kitts, where the adequate medical treatment for his illness was not available, the ECtHR held that his deportation would violate article 3.[10] This case contrasts with subsequent medical asylum cases where the ECtHR found that the circumstances of the applicants were not sufficiently distressing for an issue under article 3 to arise if they were expelled.[11] Their situations were distinguished from D. v. UK on the basis that their illness had not reached a critical stage or that family members could take care of them in their country of origin.[12]

It appears from this case-law that the expulsion of seriously-ill aliens may only raise an issue under article 3 where their illness is so advanced that their death is imminent. As long as their health condition is stable at the time of the proposed removal and they are fit to travel, the ECtHR does not consider as a relevant factor the impossibility in fact of accessing adequate medical treatment in the receiving state, even though this circumstance would most likely cause the applicant’s premature and painful death. In N. v. UK, for instance, N. contended that she would not be able to afford the necessary treatment in Uganda and the Court recognised that without such treatment her state of health would rapidly deteriorate, causing her intense suffering.[13] Yet, her circumstances were not found sufficiently compelling to prevent her expulsion and she died within a few months of her return to Uganda.[14]

The ECtHR has established that article 3 requires Convention states not to remove persons under their jurisdiction to countries where they would be at risk of being exposed to inhuman or degrading treatment.[15] However, the Court has distinguished between situations where the prohibited treatment would emanate from the intentional acts or omissions of public authorities and those where the serious harm would stem from a naturally-occurring disease and the lack of resources to treat it in the receiving country.[16] This distinction is difficult to reconcile with the absolute nature of the prohibition contained in article 3.[17] It seems that it should not matter whether the suffering of an individual arises from an intentional act or a natural condition as long as it reaches a certain degree of gravity and can be prevented by the act of a Convention state. Indeed, even if a state’s responsibility is not engaged on the basis of the deficiencies of its health system, the actions subject to scrutiny under the ECHR are not those of the receiving state but of the expelling state. As pointed out by Judge Power-Forde in her dissent to S.J. v. Belgium (2014), the ‘crucial fact’ that will precipitate the suffering and death of the applicant is not the failure of the receiving country’s health system but the implementation of the removal decision by the expelling state.[18] Pursuant to the rationale of article 3 in removal cases, i.e. protecting individuals from exposure to inhuman or degrading treatment outside the Convention system, the expulsion of aliens to a country where they run a real risk of suffering such treatment should engage the responsibility of the expelling state even though the serious harm is not strictly imputable to the receiving state.

The distinction made by the ECtHR on the basis of the source of the prohibited harm has brought it to adopt contradictory approaches in cases concerning the extradition of prisoners and in medical asylum cases.[19] This difference of treatment is apparent when comparing Aswat v. UK (2013) and S.J. v. Belgium (2014)[20]. In the former, a mentally-ill suspected terrorist whose extradition was requested by the United States claimed that his transfer would expose him to a more hostile prison environment which could result in the deterioration of his mental and physical health. The Court agreed and held that his extradition would engage the responsibility of the UK under article 3.[21] By contrast, in the latter, although it was established that the medical treatment upon which the applicant’s life and personal integrity depended would only be available in her home country at considerable costs, which she could not afford, the Court did not find that her removal would violate article 3.[22]

Migrants suffering from life-threatening conditions are not only excluded from the protection of article 3 ECHR but also from the protective regime granted to refugees and persons otherwise in need of international protection by the EC Directive 2004/83/EC.[23] In M’Bodj v. État belge (2014), the Belgian Constitutional Court requested a preliminary ruling by the ECJ on the question whether aliens suffering from a serious health condition should be included in the category of persons protected by this Directive.[24] The ECJ ruled that, for the Directive to apply, the serious harm to which an alien would be exposed upon removal to his home country ‘must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin.’[25] Accordingly, it was held that Directive 2004/83/EC does not protect seriously-ill aliens whose state of health is in risk of deteriorating if they are expelled, unless they are intentionally deprived of treatment in the receiving state.[26]

The situation of illegal migrants suffering from a life-threatening condition in countries in which they have been refused asylum is very precarious. However, rather than extending the protective scope of human rights and EU law to afford a minimum level of protection to those vulnerable people, the ECtHR and the ECJ have accepted that European member states have the right to deport them even where such a course of action would in all likelihood bring about their death in dire conditions. It is to be hoped that the ECtHR will align its medical asylum case-law with the protective standard of article 3 as elaborated in other removal cases. The lowering of the very high gravity threshold required for article 3 to be engaged in medical asylum cases could have an impact on the ECJ’s interpretation of serious harm under Directive 2004/83/EC and on the domestic law of Convention states. Such a step is needed to prevent persons like N. being sent to their death with the sanction of European human rights law.

[1] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.

[2] S.J. v. Belgium App no 70055/10 (ECtHR, 19 March 2015).

[3] S.J. c. Belgique App no 70055/10 (ECtHR, 27 February 2014).

[4] S.J. (n 2) para 56.

[5] ibid para 61.

[6] ibid para 1.

[7] N. v. the United Kingdom (2008) 47 EHRR 39.

[8] ibid para 42.

[9] D. v. the United Kingdom (1997) 24 EHRR 423; see also B.B. v France App no 47/1998/950/1165 (ECtHR, 7 September 1998) where the European Commission of Human Rights had found that the expulsion of the applicant would violate article 3.

[10] ibid para 51-53.

[11] S.C.C. v. Sweden App no 46553/99 (ECtHR, 15 February 2000); Bensaid v. the United Kingdom (2001) 33 EHRR 10; Arcila Henao v. the Netherlands App no 13669/03 (ECtHR, 24 June 2003); Ndangoya v. Sweden App no 17868/03 (ECtHR, 22 June 2004); Amegnigan v. the Netherlands App no 25629/04 (ECtHR, 25 November 2004); N (n 6); Yoh-Ekale Mwanje c. Belgique (2013) 56 EHRR 35; S.J. (n 3).

[12] See N. (n 7) paras 32-41.

[13] N. (n 7) paras 47-48.

[14] ibid para 50-51; see S.J. (n 3), Opinion dissidente de la Juge Power-Forde p 39 and S.J. (n 2), Dissenting Opinion of Judge Pinto De Albuquerque para 2.

[15] Soering v. UK (1989) 11 EHRR 439 paras 90-91; Vilvarajah and Others v. UK (1991) 14 EHRR 248 para 103; Chahal v. UK (1996) 23 EHRR 413 para 79-81; Ahmed v. Austria (1997) 24 EHRR 278 para 39; H.L.R. v. France (1998) 26 EHRR 29 para 34; Salah Sheekh v. the Netherlands (2007) 45 EHRR 50 para 135; Hirsi Jamaa and Others v. Italy (2012) 55 EHRR 21 para 114.

[16] D. (n 9) para 49; N. (n 7) para 43.

[17] See Pretty v. the United Kingdom (2002) 35 EHRR 1 paras 49-52.

[18] S.J. (n 3) p 40-41.

[19] See previous post discussing Trabelsi v Belgium.

[20] Aswat v the United Kingdom (2013) 58 EHRR 1; S.J. (n 3), see Opinion dissidente de la Juge Power-Forde p 41-42..

[21] Aswat (n 19) para 57.

[22] S. J. (n 2) paras 123 and 126.

[23] Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304/12.

[24] C‑542/13 Mohamed M’Bodj v. État belge (ECJ, 18 December 2014).

[25] ibid para 35.

[26] ibid para 41.