‘Messy’ Article 3 and the ‘Obscure Policy of Mercy’

SJ v BELGIUM 70055/10, Judgment (Struck out of the List), (Grand Chamber), 19/03/2015

When she was eight months pregnant, SJ (a Nigerian national born in 1989) claimed asylum in Belgium in July 2007. She contended that she had fled Nigeria because the family of the child’s father, MA, with whom she had lived since childhood, pressurised her to have an abortion. SJ had already claimed asylum in Malta. Hence, pursuant to the Dublin II Regulation, the Belgian Aliens Office requested the Maltese authorities to deal with her asylum application. In August 2007, SJ was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral treatment and expressed her inability to travel for six months and requested psychological counseling. In November 2007, she additionally applied to remain in Belgium on the basis of her medical condition. The Aliens Office said that non-nationals could avail treatment for AIDS in Malta. It subsequently changed its mind and accepted responsibility for the asylum claim in 2009 because SJ was pregnant with her second child. In April 2009 SJ gave birth to her second child and in November 2012 she gave birth to a third child.

All of the children had the same father, MA, who, beginning on an unspecified date, spent occasional periods in Belgium without a residence permit. SJ’s asylum claim failed because of inconsistencies in narrative. The refusal was upheld in 2010 and SJ did not appeal to the Conseil d’État. The same year an official medical adviser opined that treatment for AIDS was available in Nigeria. The application on medical grounds was also refused and SJ was served, in November 2010, with an order to leave Belgium. However, ultimately SJ and her children were granted indefinite residence permits.

But success did not come easily to SJ. Shortly after the expulsion order was served SJ applied for a stay of execution of the order. She alleged breaches of articles 3, 8 and 13 of the European Convention on Human Rights (ECHR) and argued appropriate treatment would be inaccessible to her in Nigeria and maintained that her right to respect for her private and family life would be infringed by her removal. The next day, by judgment dated 27 November 2010, her application was rejected as she was not in detention and had been given four weeks (or until 22 December 2010) to leave the country.

The Aliens Appeals Board was of the view that a mere fear that the impugned decision could be enforced at any time after the deadline, which was subsequently extended by a month, did not mean that a stay of execution of the decision could not be granted in good time under the ordinary procedure. SJ appealed to the Conseil d’État arguing a risk of serious and irreversible harm on return to Nigeria and that produced further proceedings but more remedially on 30 November 2010 she applied to the European Court of Human Rights (ECtHR) for rule 39 relief to stay the execution of the order expelling her from Belgium. SJ acknowledged that the domestic proceedings were pending but argued that the remedies in question did not suspend her removal. Subsequently, Belgium was requested not to expel SJ and her children pending the outcome of her proceedings before the ECtHR.

SJ’s application was declared admissible in December 2012 by a Chamber of the Fifth Section which in February 2014 delivered a judgment where it:

  • Unanimously held that there had been a violation of article 13 taken in conjunction with article 3.
  • Further held unanimously that it was not necessary to examine SJ’s complaints under article 13 taken in conjunction with article 8.
  • Held by majority that the enforcement of the decision to deport SJ to Nigeria would not entail a violation of article 3.
  • Unanimously held that, even assuming that the ECtHR could examine the complaint under article 8 of the Convention, there had been no violation of that provision.

Subsequently, SJ and Belgium requested the referral of the case to the Grand Chamber. The request was accepted in July 2014 and the hearing initially scheduled to take place in February 2015 was postponed because the parties were engaged in attempts to reach a friendly settlement. In August 2014, Belgium proposed a friendly settlement with SJ because her case involved strong humanitarian considerations weighing in favour of regularising her residence status and that of her children.

In September 2014, the ECtHR received word from SJ that she accepted the proposal on condition that (i) she and her three children be granted unconditional and indefinite leave to remain; (ii) she was compensated for the pecuniary and non-pecuniary damage arising from adverse decision making; and (iii) only once the residence permit had been issued to her in person she consented to the striking-out of the case from the court’s list.

Belgium agreed to the conditions set by SJ. It said that her and her children’s residence status would be regularised immediately and unconditionally and in January 2015, the applicant and her children were issued with residence permits granting them indefinite leave to remain. Therefore, the Grand Chamber hearing scheduled for 18 February 2015 was cancelled in September 2014.

Held

Taking formal note of the friendly settlement between SJ and Belgium, the ECtHR, by sixteen votes to one, lifted rule 39 relief and struck the case off its list.

Dissent

Judge Pinto de Albuquerque dissented and considered the striking out of the instant case as a lost opportunity to revise “the unfortunate principle” in N v United Kingdom [GC], no. 26565/05, (2008) 47 EHRR 39. For him it the decent protection of the human rights of seriously ill persons in Europe necessitated an examination of SJ’s case.

N concerned the principle of the “very exceptional” protection of seriously ill illegal aliens and the majority of the Grand Chamber established at para 42 that:

  • 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/her life expectancy, would be significantly reduced if he/she 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.

The majority established a general principle relating to the expulsion of a person with a HIV and AIDS‑related condition and held that:

  • The same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.

Owing to the application of the high threshold applied to her because of her fitness to travel, the dissenting judge found it unsurprising that N died soon after being removed to Uganda. He seriously attacked the reasoning that the ECtHR affirmed her removal from the UK irrespective of her poor health and question marks over the mechanics of her receiving the appropriate health care in the receiving state.

Contradictions in the CJEU and within Strasbourg 

In his dissenting judgment, the Portuguese judge urged an urgent review of the standard laid down in N in the light of international migration law and international refugee law. He exposed the “messy” predicament of the European case law in which he identified “flagrant internal contradictions”. In particular, Judge Pinto de Albuquerque took issue with the way the Court of Justice of the European Union (CJEU) had replicated the logic in N in Case C‑542/13, Mohamed M’Bodj ECLI:EU:C:2014:2452. In that case the CJEU (Grand Chamber) created a straitjacket and held that Belgium would be required, pursuant to articles 28 and 29 of Directive 2004/83, to grant the benefits covered by those provisions to third-country nationals granted leave to reside in Belgium under the national legislation at issue only if the leave to remain were to be regarded as also conferring subsidiary protection status.

Observing the “very exceptional” cases test in N, the court held at para 40 that the mere fact that a third-country national suffering from a serious illness may not (under the ECtHR’s interpretation of article 3 ECHR, in highly exceptional cases) be removed to a country where appropriate treatment is unavailable cannot be conflated with the belief that the person concerned should be given permission to reside in a Member State by way of subsidiary protection under Directive 2004/83 (the Qualification Directive). Judge Pinto de Albuquerque took the view that the CJEU was stretching the limits, and deprived Member States the margin of discretion to extend the scope of subsidiary protection to seriously ill foreign nationals, at para 43 where it purported to create an absolute rule by holding that:

The reservation set out in article 3 of Directive 2004/83 precludes a Member State from introducing or retaining provisions granting the subsidiary protection status provided for in the directive to a third country national suffering from a serious illness on the ground that there is a risk that that person’s health will deteriorate as a result of the fact that adequate treatment is not available in his country of origin, as such provisions are incompatible with the directive.

He said that the illusion which the CJEU had sought to create by delivering the decision in tandem with C-562/13, Abdida ECLI:EU:C:2014:2453 was “certainly no accident” as it purported to “give a balanced image” of its jurisprudence. The dissenting judge explained that the CJEU “failed” in camouflaging the truth and in reality “the coincidence only highlights the unbalanced nature of the rulings delivered.” Concerns about the extremely restrictive interpretation of the scope of substantive protection afforded by Directive 2004/83 were heightened by the CJEU’s judgment in Abdida where it embraced a decidedly broad view of articles 5 and 13 of Directive 2008/115/EC (the Return Directive), taken in conjunction with articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union (CFR) and article 14(1)(b) of Directive 2008/115/EC.

In Abdida, the CJEU was critical of national legislation that did not provide with suspensive effect an appeal against an expulsion decision of a seriously ill third country national. It held that very exceptionally where the removal of a third country national suffering a serious illness to a country in which appropriate treatment was unavailable would infringe the principle of non-refoulement, Member States were not permitted to proceed with such removal pursuant to article 5 of Directive 2008/115, taken in conjunction with article 19(2) of the CFR. The enforcement of a return decision entailing the removal of a third-country national suffering from a serious illness to a country in which appropriate treatment was not available could therefore constitute, in certain cases, an infringement of article 5 of Directive 2008/115. Those very exceptional cases were characterised by the seriousness and irreparable nature of the harm that could be caused by the removal of a third-country national to a country in which there was a serious risk that he/she would be subjected to inhuman or degrading treatment.

The approach in these two cases entailed a contradiction as regards the important issue of seriously ill foreigners “by providing them with reasonable procedural guarantees and at the same time depriving them of the most elementary substantive guarantees.” The dissenting judge found the positive obligation detailed in paras 59 and 61 of Abdida to be incompatible with the repudiation of the very same positive obligation in para 39 of M’Bodj. As he said, M’Bodj paradoxically provides legally resident foreigners a lesser standard of protection in terms of health care in comparison to the protection afforded by Abdida to illegally resident foreigners.

The point is captured by the fact that pending an appeal against a return decision whose enforcement may expose them to a serious risk of grave and irreversible deterioration in their state of health, beneficiaries under Abdida must be able to avail a suspensive remedy which ensures that the return decision is not enforced without a competent authority exercising the opportunity to examine an objection alleging infringement of article 5 of Directive 2008/115, taken in conjunction with article 19(2) of the CFR. Moreover, beneficiaries under Abdida enjoy “emergency health care and essential treatment of illness” during that period.

Judge Pinto de Albuquerque summed up the contradictions in the CJEU, where no dissent is tolerated, as linking back to the conflict within the ECtHR’s own jurisprudence which concurrently espouses an unreasonably restrictive interpretation of article 3 in cases such as N but prefers a reasonably broad procedural interpretation of the right to an effective remedy for asylum seekers in cases like Hirsi Jamaa and Others v Italy [GC], no. 27765/09, (2012) 55 EHRR 21 and, more ambiguously, vis-à-vis irregular migrants De Souza Ribeiro v France [GC], no. 22689/07, (2014) 59 EHRR 10.

In Critique of N

According to the judge, the unfortunate principle in N distorts article 3 and dilutes it to “purely speculative assumptions” about the ability (care and support) of the receiving country to care for a seriously ill person and the economic burden represented for the contracting states of the ECHR. This purely “axiomatic” rationale fails to furnish “any rational justification for the lesser protection given to them other than an aprioristic view that no positive obligations are to be derived from article 3 in relation to … seriously ill foreign nationals.” Devoid of any clear legal criteria, the reasoning is based on economics. On the basis of such untested reasoning, the majority view turns on “fitness to travel” – connected to the mechanics of the physical act of removal – and should instead draw an analogy with the removal of life support from a seriously ill person (for e.g. in the case of AIDS getting antiretroviral treatment can be likened to a life-support machine which if turned off can cause a breach of article 3 ECHR).

Apart from being speculative, the decision in N was based on incomplete information and traded certain treatment for a terminal illness with uncertainty of getting adequate treatment in the receiving state. The ruling also “surreptitiously imposes on the applicant an untenable burden of proof”. The approach shifts the responsibility of the terminally ill person’s life from a functioning health system into a questionable one (likely to be in the Third World). Ultimately, the terminally ill person is made a sacrificial lamb. The whole process is a departure from the wise rule in Soering v UK, no. 14038/88, (1989) 11 EHRR 439 – namely that the removing State must ensure that removal will not put the applicant’s article 2 and 3 rights in danger – and the “hidden reversal of the burden of proof” is utterly condemnable.

The replacement of rights-based arguments by “compassion” or “sympathy” gives contracting states the choice to dispose of “costly and undesirable sick people” as they please. For Pinto de Albuquerque, swapping the approach taken in Airey v Ireland, no. 6289/73, (1980) 2 EHRR 305 with the opacity of N leads astray “the absolute character of the prohibition of ill‑treatment in the Convention system” and this culminates in the replacement of a state obligation (as regards protecting the rights to life and physical integrity) with a variable and “obscure policy of mercy”.

Inter-American Counterpoint

The Inter-American Commission of Human Rights (“IACHR”) emphatically disapproved of N in Andrea Mortlock v the United States, Report N.63/08 – Case 12.534 where it opposed expelling a Jamaican with AIDS from the USA who was in stable health but would have died prematurely if removed because “stopping the treatment would lead to a revival of the symptoms and an earlier death.” For the IACHR, even though the risk of death was not imminent (as in D) the consequences of terminating antiretroviral treatment were potentially fatal for Mortlock. Judge Pinto de Albuquerque therefore remarked: “[i]n blunt terms, the European standard of human rights protection is today well below the American one.”

Conclusion

Throwing a much needed lifeline to the terminally ill, the dissenting judge went on to lament further that:

12. Six years have passed since the N judgment. When confronted with situations similar to that of N, the Court has reaffirmed its implacable position, feigning to ignore the fact that the Grand Chamber sent N to her death. Too much time has elapsed since N’s unnecessary premature death and the Court has not yet remedied the wrong done. I wonder how many Ns have been sent to death all over Europe during this period of time and how many more will have to endure the same fate until the “conscience of Europe” wakes up to this brutal reality and decides to change course.

Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.

Comment

Only recently, in GS (India) & Ors [2015] EWCA Civ 40, the Court of Appeal (Laws, Sullivan and Underhill LLJ) followed N and held that the Strasbourg jurisprudence did not cast any doubt on the binding authority in that case.

Laws LJ moreover held at para 65 that the ratio of the decision of the House of Lords in N [2005] UKHL 31 was entirely plain that the exception in D v UK (1997) 24 EHRR 423 “was confined to deathbed cases” which the appellants failed to match. Consequently, in that case, the six appellants (five with terminal renal failure and one who was HIV positive) who suffered from serious medical conditions were unsuccessful in their human rights appeals against removal from the UK notwithstanding the fact that their lives would be drastically cut short by the progress of natural disease if they were removed to their home states. D himself, of course, was a criminal and got caught red-handed smuggling £120,000 worth of cocaine into the UK from St Kitts and was sentenced to six years’ imprisonment after pleading guilty. However, he weirdly received a superior outcome to other sick people who have not indulged in criminal activity.

Ultimately, the fact that MA was able to enter Belgium and spend occasional periods in Belgium without a residence permit and father two further children with SJ is the kind of factual detail that feeds the flames of ideological hatred presently being fanned by anti-immigrant politicians all across Europe. The fact that Belgium paid €7,000 ex aequo et bono to cover SJ’s suffering as a result of its decision making in addition to her receiving health care and indefinite leave to remain can only intensify the historic standoff between the protagonists and antagonists of human rights.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 3, Article 8, Asylum, Belgium, CFR, CJEU, Court of Appeal, ECHR and tagged , , , , . Bookmark the permalink.

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