CJEU - C-542/13, Mohamed M’Bodj v État belge

The CJEU ruling concerned the scope of protection available under EU law to third country nationals suffering from serious illness whose removal would amount to inhuman or degrading treatment. The CJEU ruled that, although the removal of a seriously ill person could in exceptional circumstances amount to a breach of Article 3 ECHR, the Qualification Directive (2004/83/EC) is to be interpreted as not requiring a Member State to grant the social welfare and health care benefits to a third country national who has been granted leave to reside in the territory of that Member State under national legislation.

Facts:

Mr M’Bodj, a Mauritanian national, was granted a residence permit in Belgium for medical reasons (a major eye disability), on the basis that his removal to Mauritania would subject him to a real risk of inhuman or degrading treatment due to the lack of adequate medical treatment. Under Belgian law transposing the Qualification Directive, he had been granted neither refugee status nor subsidiary protection, and subsequently denied income allowance and income support. Domestic litigation concerning Mr M’Bodj’s entitlement under EU law to such an allowance reached the Belgian Constitutional Court, which referred two questions to the CJEU.

Questions referred for a preliminary ruling

1. Must Articles 2(e) and (f), 15, 18, 28 and 29 of [the Qualification Directive] be interpreted as meaning that not only a person who has been granted, at his request, subsidiary protection status by an independent authority of the Member State must be entitled to benefit from the social welfare and health care referred to in Articles 28 and 29 of that directive, but also a foreign national who has been authorised by an administrative authority of a Member State to reside in the territory of that Member State and who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment in the case where there is no appropriate treatment in his country of origin or in the country in which he resides?

2. If the answer to the first question is that the two categories of persons who are there described must be capable of benefiting from the social welfare and health care referred to therein, must Articles 20(3), 28(2) and 29(2) of [the Qualification Directive] be interpreted as meaning that the obligation imposed on Member States to take into account the specific situation of vulnerable persons such as disabled people implies that the latter must be granted the allowances provided for by the Law of 27 February 1987 concerning allowances for disabled people, in view of the fact that social assistance which takes account of the handicap may be granted pursuant to the Basic Law of 8 July 1976 on public social welfare centres?

Decision & Reasoning:

In its assessment of the first question, which raises eligibility for subsidiary protection status, the Court notes that a third country national with a deteriorating state of health, which is not the result of an intentional deprivation of health care, is not covered by 15(a) and (c) of the Qualification Directive[31].

Nor would this person be covered by Article 15(b) of said Directive for several reasons.

Firstly, because the inhumane or degrading treatment specified in 15 (b) is only applicable where it occurs in the applicant’s country of origin [33].
Secondly, in light of Article 6 of the Qualification Directive serious harm is inflicted by a third party and “cannot therefore simply be the result of general shortcomings in the health system of the country of origin.” According to the Court this is further clarified in the Recitals whereby an intentional deprivation of health care by a third party is required for the person to be granted subsidiary protection [35-37].
Thirdly, the Court submits that whilst the ECtHR jurisprudence points towards a violation of Article 3 if a person suffering from a serious illness were to be removed to a country where facilities for the illness were inferior to the hosting State (N v UK), this does “not mean that that person should be granted leave to reside in a Member State by way of subsidiary protection under the Qualification Directive [39-40].”

In light of the Courts’ submissions that an applicant suffering from a serious illness cannot fall under 15(b), unless the applicant is intentionally deprived of health care in his country of origin, the Court further advances that Article 3 of the Qualification Directive, allowing Member States to introduce or retain more favourable standards for persons who qualify for subsidiary protection, does also not apply to such an applicant [42-43].

The Court, thus, surmises that the legislation referred to by the Belgian State “cannot be regarded, for the purpose of Article 3 Qualification Directive, as introducing a more favourable standard for determining who is eligible for subsidiary protection. Third country nationals granted leave to reside under such legislation are not, therefore, persons with subsidiary protection status to whom social welfare and health care would apply [46].”

Having regard to the reply given to the first question, the Court found no need to reply to the second question.

Outcome:

The Court ruled: Articles 28 and 29 of 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, read in conjunction with Articles 2(e), 3, 15, and 18 of that directive, are to be interpreted as not requiring a Member State to grant the social welfare and health care benefits provided for in those measures to a third country national who has been granted leave to reside in the territory of that Member State under national legislation such as that at issue in the main proceedings, which allows a foreign national who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment to reside in that Member State, where there is no appropriate treatment in that foreign national’s country of origin or in the third country in which he resided previously, unless such a foreign national is intentionally deprived of health care in that country.

Observations/Comments:

The Advocate General Bot opinion on the case is available here. His conclusion was that Article 2(e) of the Directive 2004/83/EC must be interpreted as precluding a Member State from regarding as a ‘person eligible for subsidiary protection’ a third country national suffering from a serious illness who, if returned to his country of origin, would face a real risk of being subjected to inhuman or degrading treatment because of the lack of appropriate medical treatment in his country.

He noted that although, in certain specific circumstances, the suffering caused by an illness might constitute inhuman or degrading treatment, the fact remains that one of the key criteria for eligibility for subsidiary protection, namely the identification of those responsible for inflicting harm against whom protection is needed, is not fulfilled. [49]. Moreover, refugee or subsidiary protection status may be granted, therefore, only in cases where the public authorities in the country of origin have not taken any steps to provide such protection, either because they are responsible for the persecution, or because they encourage or tolerate persecution by militia or other private groups. [51]

Protection might though be provided by a Member State on a discretionary basis on compassionate or humanitarian grounds, based on compliance with Article 3 of the ECHR and Articles 4 and 19(2) of the Charter. If protection is provided on that basis, it is the implementation of the decision by the host Member State to remove the person concerned, in conjunction with the lack of appropriate medical resources in the country of origin, which may constitute inhuman treatment. The EU legislature clearly wished to exclude cases based on humanitarian grounds from the scope of Directive 2004/83 [61-62].

Leave to reside such as that granted to Mr M’Bodj, on the basis of Article 9b of the Law of 15 December 1980, is, therefore, not capable of constituting a subsidiary form of international protection for the purpose of Article 2(e) of Directive 2004/83. Therefore, the granting of subsidiary protection status by a Member State to an individual in a situation such as that of Mr M’Bodj would not be compatible with the provisions or objectives of the Directive.[67-70]

Case comment:

Could EU law save Paddington Bear? The CJEU develops a new type of protection, Steve Peers, December 2014

http://eulawanalysis.blogspot.be/2014/12/could-eu-law-save-paddington-bear-cjeu.html

Case Law Cited:

CJEU - C-28/05, G.J. Dokter, Maatschap Van den Top, W. Boekhout v. Minister van Landbouw, Natuur en Voedselkwaliteit

CJEU - C-285/12, Aboubacar Diakité v Commissaire général aux réfugiés et aux apatrides

CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D

CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie

ECtHR - N v United Kingdom (Application no. 26565/05)

CJEU - C-364/11 Mostafa Abed El Karem El Kott, Chadi Amin A Radi, Hazem Kamel Ismail v Bevandorlasi es Allampolgarsagi Hivatal (BAH)

CJEU - C-57/09 and C-101/09 Germany v B and D - resource

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