ECtHR - Paposhvili v. Belgium, Application no. 41738/10,13 December 2016

As a preliminary point the Grand Chamber decided to examine his complaint in accordance with Article 37(1) due to its wider impact on cases involving aliens who are seriously ill and facing removal.

Presenting its well-versed findings on Article 3 the Court holds that the severity of ill-treatment under Article 3 must attain a minimum level and that the suffering flowing from a natural occurring illness may be or risks being “exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.” Notwithstanding this the Court goes onto note that its scrutiny cannot be prevented even where the source of the risk of treatment in the receiving country does not engage the responsibility of the public authorities of that country.

The Court highlights that since its case law in N. v. the United Kingdom, an extremely high threshold (exceptional circumstances) has been set when applying Article 3 to seriously ill persons, indeed only those close to death appear to be covered by the provision (as per D. v. United Kingdom). That said, the Court notes that “other very exceptional cases” within the meaning of N. v. UK needs to be clarified.

The Court determines that Article 3 is triggered in these cases where “the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”. In ensuring that Article 3 is respected the Court goes onto highlight that appropriate procedures need to be put in place which allows the individual to adduce evidence of the potential risk upon return to the country of origin and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. Thus the applicant is not obliged to present clear proof that they would be exposed to proscribed treatment.

In addition the authorities should assess whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. Thus States must assess the impact of removal on the individual by comparing his health prior to removal and how it would evolve after transfer. A factor in this assessment will be whether the care is generally available in the receiving State is sufficient and appropriate in practice for the applicant’s treatment and whether the individual will actually have access to this care and these facilities in the receiving State. This includes considerations relating to costs, existence of social networks and distances to access the relevant treatment. The Court finds that where serious doubts persist concerning removal the State must obtain Tarakhel-like guarantees that the individual will actually receive appropriate treatment. Therefore, the Court found that the Belgian Aliens Office had not examined the applicant’s medical conditions in light of Article 3 in the context of his regularisation of status nor his proposed removal and as a result violated Article 3 of the Convention. The Court subsequently finds that there is no need to examine the complaint under Article 2.

With regards to Article 8 the Chamber emphasises the positive obligations on Belgium, especially in light of the facts of the case. Much like the lack of assessment on Article 3 the authorities did not examine the degree of the applicant’s dependence on his family or the impact of removal on his family life. The Court thus found Article 8 to be additionally breached.