Protection of Seriously Ill Migrants Facing Expulsion: The Shameless Caselaw of the European Court of Human Rights

By: Sarah Ganty |

On March 19, 2015, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) struck out the sensitive case of S.J. v. Belgium on the basis of the friendly settlement between the Belgian Government and the applicant, S.J, mother of three children, who suffers from an advanced stage of AIDS and facing expulsion. Indeed, the Belgian Government ultimately regularized the residency status of the applicant and that of her three children, justified by the “strong humanitarian considerations” of their situation.

Why then write this note on a case that was not eventually ruled on the merits by the GC of the Court and where the outcome looks like a “happy ending”? As Judge Pinto de Albuquerque explained in his powerful dissenting opinion, the GC’s decision was in fact a missed opportunity for the Court to adopt a humane and fair position towards the vulnerable categories of seriously ill migrants in irregular situations.

In this context, the S.J. case is a good opportunity to return to one of the most shameless case laws of the ECtHR in terms of protection of vulnerable people, which is greatly questionable regarding international obligations of the Council of Europe’s Member States.

Firstly, who is Ms. S.J.? S.J. is a Nigerian national who arrived in Belgium in 2007 at the age of seventeen, when she was eight months pregnant. Since then, she has given birth to three children in Belgium. At the time of her arrival, she lodged an application for asylum that was dismissed. In the meantime, she was found to be HIV-positive with a serious immune system deficiency requiring antiretroviral treatment. Given her serious illness and the lack of treatment in Nigeria, she also submitted an application for a residence permit on medical grounds (severe illness and lack of treatment in Nigeria), which was denied. Ms. S.J. and her three children were subsequently ordered to leave Belgium. On appeal against the decision, the Belgian domestic courts dismissed her application for the suspension of her expulsion. In 2010, Ms. S.J. finally lodged a request before the ECtHR.

The ECtHR has competence to rule on individual applications alleging violation of the rights set out in the European Convention of Human Rights (ECHR) that the forty-seven members States of the Council of Europe have signed and ratified. On this basis, before the Court, S.J. invoked the violation of Article 3 of the ECHR that enshrines the right not be subjected to torture or to inhuman or degrading treatment or punishment. S.J. claimed that if she and her three children were expelled, she would certainly die in Nigeria given the critical stage of her disease and the lack of accessibility to the right treatment in that country. She also claimed that her vulnerability was even greater considering her children’s young ages (between two and six years old), all of whom were likely to become orphans since she had no family and social network in Nigeria.

In the ECtHR’s February 27, 2014 decision in first instance, the Court concluded that, since the applicant was not “critically ill” and was able to travel, the level of gravity of Article 3 of the ECHR was not reached. As a result, the Court found that the expulsion of the applicant and her three children to Nigeria would not breach Article 3. The applicant then requested to refer her case to the GC, which struck it out few weeks ago, as already explained.

It is striking that in the decision of February 2014, the Court referred to the sadly well-known case, N. v. United Kingdom, ruled by the GC of the Court on May 27, 2008. The N. v. United Kingdom case illustrates a shift to the very restrictive case law of the Court concerning the protection of seriously ill migrants in irregular situations. As in S.J.’s case, N. was an applicant suffering from an advanced stage of AIDS. Similar to S.J., she claimed she was going to die in great suffering in her country of origin, Uganda, where there was no available treatment. Similar to the case of S.J., despite the situation of high vulnerability of N., the Court concluded that she was “fit to travel,” not critically ill, and, therefore, she did not qualify as a “very exceptional case,” and “where the humanitarian grounds against removal are compelling.” On this basis, N. was expelled to Uganda where she died a few months later, unsurprisingly.

Despite the terrible outcome for N., all the subsequent applicants, seriously ill migrants in an irregular situation, who invoked Article 3 of the Convention were dismissed by the Court because they were not considered to be in “very exceptional situations”, either (see ECtHR, Yoh-Ekale Mwanje v. Belgium, 20 December 2011; ECtHR, Paposhvili v. Belgium, 17 April 2014; S.J v. Belgium). Therefore, the “fitness to travel” concept, gradually became “the ultimate, practical criterion for deciding who is to be removed.” In this context, article 3 of the ECHR is limited to an authorization to die on the national territory of . Nothing more.

Numerous authors (see notably S. Slama & K. Parrot, N. Hervieu, L. Leboeuf) and judges—in dissenting opinions—have denounced the inhuman and overly restrictive case law of the Court. I agree with them.

The case law that is reflected in N. v. United Kingdom is in total contradiction with the terms and purpose of Article 3 of the ECHR that states, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment,“ and with the related case law of the Court. Indeed, the Court has repeatedly maintained that Article 3 enshrines one of the most fundamental values of democratic society and makes no provision for exceptions even in the event of a public emergency threatening the life of the nation. In addition, according to the Court, the prohibition provided by Article 3 against ill treatment is equally absolute in expulsion cases and includes the suffering from naturally occurring illnesses, physical or mental. Why then are seriously ill migrants in irregular situations still treated so unfairly under Article 3 of the ECHR? Why has the threshold been brought so high that it is impossible to reach except if the migrant is on his/her deathbed?

The answer is given in the case law that developed in the wake of N. v. United Kingdom. The Court is afraid that it “would place too great a burden on the Contracting States.” Budgetary constraints. This is the reason why the Court continues to refuse fair protection to these vulnerable people. However, as underlined by the judges in their joint dissenting opinion in the N. case, “Such a consideration runs counter to the absolute nature of Article 3 of the Convention and the very nature of the rights guaranteed by the Convention.” Indeed, what is the role of Human Rights bodies if not to protect the most vulnerable whose lives are on the line due to political and economic considerations of the State? Moreover, as underlined by the minority in N., “when one compares the total number of requests received [by the ECtHR] (and those refused and accepted) as against the number of HIV cases, the so-called “floodgate” argument is totally misconceived.”

In this context, there is an urgent need for the Court to interpret the Convention in light of the present day, even though the protection of civil and political rights set forth in the Convention has social and economic implications for the State.

The ECHR was adopted in 1950 after WWII in the hope that such extensive human rights violations would never happen again. Still, other forms of violence continue to invade our world: natural disasters, diseases, and terrorism. It is the responsibility of the States and of Human Rights bodies to adapt their protection systems to these new forms of violence and to find the right balance in protecting those under their jurisdiction that are the most vulnerable.

It is striking that, before N. v. United Kingdom was decided, the Court seemed to find this balance in its D. v. United Kingdom, ruled on May 2, 1997. In that decision, noting that the applicant had an advanced stage of a terminal and incurable illness, the Court found that the abrupt withdrawal of the facilities he had in the United Kingdom would have entailed the most dramatic consequences for him. The Court further ruled that there was a serious danger that the conditions of adversity awaiting him in Saint Kitts would have further reduced his already limited life expectancy and would subject him to acute mental and physical suffering. It finally came to the unanimous conclusion that the implementation of the decision to remove the applicant to Saint Kitts would have amounted to inhuman treatment in violation of Article 3. It is also noteworthy that the D. case inspired the Inter-American Commission on Human Rights that, referring to it, reached in July 2008—more than ten years later and two months after the decision of the GC in N.—a similar decision in the case Andrea Mortlock v. the United States.

Why not return to the example of decision in D. v. United Kingdom and establish a human and reasonable understanding of “very exceptional cases”? After all, it is clear in the dissents of Judges Tulkens, Bonello, and Speilman in N. and of Judge Power-Forde in S.J. that the situations in N. and S.J had equally extreme facts as were considered in D., with equally compelling humanitarian considerations. Let’s hope that the ECtHR will rapidly realize how its case law is in total contradiction with its own title of Court of “Human Rights”. In this context, a decisions protecting seriously ill migrants in irregular situations coming from other international Human Rights bodies would be more than welcome. Thus, while it is true that the ECtHR has been an inspiration for many human rights bodies around the world, to avoid further “N.” outcomes and to save more individuals like S.J., it is time for these other bodies to take the lead and send a strong signal in favor of protecting seriously ill migrants in irregular situations.

Sarah Ganty is a Visiting Scholar at the University of California, Berkeley.  She is a contributor to Travaux.

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