Dr Lourdes Peroni*, Postdoctoral Research Fellow, Ghent University Human Rights Centre (ECHR aspects) and Professor Steve Peers (EU law aspects)
The Grand Chamber of the European Court of Human Rights (ECtHR) significantly altered its stance on the expulsion of seriously ill migrants in the landmark 2016 Paposhvili v. Belgium judgment. This ruling clarifies when Article 3 of the ECHR, prohibiting torture or inhuman or degrading treatment, applies. The Court unanimously decided to move away from the strict interpretation of Article 3 established in N. v. the United Kingdom toward a more comprehensive evaluation of ill-treatment risks in such situations. The Human Rights Centre at Ghent University, which provided input as a third party, is pleased with the Grand Chamber’s decision to re-evaluate its stance and provide a more just application of Article 3.
This post will focus on the ECtHR’s interpretation of the ECHR in Paposhvili, while the Annex, written by Professor Steve Peers, will examine its application in the context of EU law.
The ECHR Judgment
The case involved Mr. Paposhvili, a Georgian national residing in Belgium with a serious illness. He argued that being deported to Georgia would deny him access to necessary medical treatment, exposing him to inhuman treatment and potentially hastening his death. He passed away in Belgium while awaiting the Grand Chamber’s decision, but the Court opted to continue examining the case under Article 37 § 1 in fine ECHR due to its human rights implications. The Court determined that expelling Mr. Paposhvili without evaluating the risks posed to his health and the availability of adequate treatment in Georgia would have breached Article 3. Additionally, removing him without considering the impact on his right to family life, given his health, would have violated Article 8.
Expanding the Scope of “Other Very Exceptional Cases”
The Chamber’s judgment in Paposhvili initially followed the precedent set by N. and Yoh-Ekale Mwanje v. Belgium, which considered factors like treatment-induced stability, the absence of critical illness, and fitness for travel. Despite acknowledging Mr. Paposhvili’s fatal and incurable disease, the Chamber deemed his condition stable and under control, concluding that he was not in imminent danger and fit for travel.
The N. Grand Chamber judgment stipulated that deporting a seriously ill non-national to a country with inferior treatment options could potentially violate Article 3, but only in extremely rare circumstances. While acknowledging “other very exceptional cases” with compelling humanitarian grounds, the N. Grand Chamber found the applicant’s situation non-exceptional, unlike the D. v. United Kingdom case involving imminent death, lack of medical care, and absence of family support in the home country.
Ghent University’s Human Rights Centre argued that medical stability and fitness for travel should not be the deciding factors in permitting expulsion. Instead, they proposed a more nuanced approach that considered the potential suffering the individual would experience in the receiving state compared to their current situation. The goal was to ascertain whether the potential decrease in life expectancy and quality of life reached the severity threshold required for an Article 3 violation.
The Paposhvili Grand Chamber judgment expands upon the “very exceptional cases” category outlined in N. Acknowledging the lack of such cases since N., the Grand Chamber recognized that restricting Article 3’s application solely to individuals nearing death neglected those with serious but less critical conditions. In a significant move, the Grand Chamber determined that “other very exceptional cases” should encompass situations involving the deportation of individuals with serious illnesses where there are substantial reasons to believe they would experience a serious, rapid, and irreversible decline in health leading to intense suffering or a significantly shortened lifespan due to inadequate or inaccessible treatment. However, this still represents a high threshold for applying Article 3 in such cases. This signifies a welcome shift toward a less restrictive approach that aligns better with Article 3’s principles.
Prioritizing Actual Access to Sufficient and Appropriate Care
The Ghent intervention advocated for a risk assessment that evaluated the accessibility and adequacy of medical care in the receiving state. The crucial question is not merely the availability of adequate treatment but whether the individual in question can realistically access it.
The Grand Chamber seized this opportunity to outline the procedural obligations of domestic authorities in ECHR state parties. These obligations emphasize the need for a more stringent risk evaluation, reflecting the absolute nature of Article 3’s prohibition. When assessing the potential risk of ill-treatment, domestic authorities must confirm whether the receiving state’s available care is realistically sufficient and appropriate to treat the applicant’s condition and prevent a violation of Article 3. This evaluation must consider the individual’s ability to access care and facilities, taking into account factors such as treatment costs, social and familial support networks, and the distance to healthcare providers.
The Obligation to Secure Guarantees from the Receiving State
Citing the Tarakhel case, Ghent’s intervention proposed that Article 3 obligates the returning state’s domestic authorities to seek and obtain assurances from the receiving state that the individual will have actual access to necessary treatment. Access to appropriate medical care should not be a theoretical possibility but a guaranteed reality, with the burden of proof resting on the expelling state.
The Grand Chamber addresses this point by stating that if, after examining relevant information, serious doubts remain regarding the impact of removal on the individual, the returning state must secure individual and sufficient guarantees from the receiving state before deportation. These guarantees must ensure the availability and accessibility of appropriate treatment to prevent a situation that contravenes Article 3.
Conclusion
The Court’s reasoning in Paposhvili includes several significant Article 3 principles. These principles, along with others such as the determination of when the returning state’s responsibility is engaged, represent a positive shift in the Court’s approach to upholding the absolute nature of Article 3’s prohibition.
*This part of the post is reblogged with permission from the Strasbourg Observers blog
Barnard & Peers: chapter 26
JHA4: chapter I:7
Photo: OLV hospital, Belgium
Photo credit: Sapa group
Annex: The Impact on EU Law
By Professor Steve Peers
How does this judgment affect EU law?
It is crucial to understand the existing EU law position, established by the ECJ’s Abdida and M’Bodj judgments, which the ECtHR judgment mentions. Essentially, “medical cases” do not fall under EU asylum law, including refugee status or subsidiary protection (M’Bodj). However, the Returns Directive applies if the individual faces expulsion. (Notably, this Directive doesn’t apply to the UK, Ireland, or Denmark.)
While the Returns Directive primarily aimed to ensure the removal of irregular migrants, the ECJ’s interpretation in Abdida suggests it has the opposite effect in “medical cases.” The Court ruled that respecting the principle of non-refoulement under Article 5 requires that irregular migrants facing an Article 3 ECHR risk as defined by the ECtHR cannot be removed, even if outside the scope of EU asylum law. Additionally, the ECJ ruled that challenging removal should have suspensive effect, granting individuals access to necessary healthcare and social benefits.
Although the ECJ hasn’t developed this case law further, there are pending relevant cases. MP seeks clarification on the distinction between asylum and medical cases when medical conditions directly correlate with persecution or significant harm in the origin country. Gnandi aims to clarify the suspensive effect of a legal challenge in medical cases following an unsuccessful asylum application. K.A. and others examines the “due account” requirement concerning family life in Article 5 of the Returns Directive, potentially influencing the interpretation of non-refoulement within the same clause. Similarly, Nianga questions whether Article 5 applies to issuing return decisions or removal orders, which is critical because it could place individuals outside EU law’s protection.
Regarding the new ECtHR ruling’s impact on EU law interpretation, it doesn’t inherently alter the ECJ’s division between asylum and medical cases. Consequently, the focus remains on interpreting the Returns Directive within its scope of application.
Since the ECJ committed to following ECtHR case law concerning medical cases when interpreting non-refoulement in the Returns Directive, the new ECtHR ruling logically extends to the Directive as well. This broadens the group eligible for protection under specific EU law provisions, particularly those pertaining to the suspensive effect of appeals and access to healthcare and social benefits.
Logically, the ECtHR’s emphasis on procedural elements in such cases extends to those falling under the Returns Directive. While the Abdida judgment did not explicitly reference the ECJ’s jurisprudence on the right to a hearing for irregular migrants, this approach needs revisiting in light of the ECtHR ruling, given the strong connection it establishes between procedural and substantive aspects of this “alternative protection.” The ECJ will have opportunities to address this in the pending cases.
While the ECtHR judgment suggested cooperation with the origin country to verify conditions, in the EU context, this could entail verifying health conditions in another Member State responsible for the individual under the Dublin rules. The ECJ has yet to determine how its interpretation of the Returns Directive in medical cases aligns with the Dublin rules, which typically apply if an individual has sought international protection within the EU. (Mr. Paposhvili fell under the Dublin rules initially, but the plan to transfer him to Italy seems to have been abandoned.)
Lastly, the ECtHR found a violation of Article 8 (the right to family life) based on similar procedural grounds. This could impact interpreting the EU’s family reunification Directive for individuals within its scope who argue based on factors considered during expulsion proceedings under Articles 17 and 18.