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26 maart 2015

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

J 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.

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.
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.

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