European Court of Human Rights: S.J v Belgium (Application no. 70055/10) [Articles 3, 8 and 13], 19 March 2015

Date: 
Friday, March 20, 2015

The Grand Chamber of the European Court of Human Rights has struck out from the list of its cases S.J v Belgium, after a friendly settlement between the Belgian government and the applicant has led to the issuance of residence permits, granting them indefinite leave to remain. 

The case concerned the proposed return of a mother with HIV and her three children to Nigeria and raised questions of effective remedies against removal orders in domestic legislation as well as Article 3 litigation on medical grounds.

The decision was accompanied by an Opinion from Judge Pinto de Albuquerque who vehemently disagreeD with the judgment, advancing that the case gave a strong platform from which to depart from N v UK. Turning first to a consideration of N v UK and the “very exceptional” threshold that the case puts in place for seriously ill persons seeking protection, Judge Pinto de Albuquerque states that in N v UK the applicant, suffering from AIDS, died shortly after her removal. Noting the replication of this high threshold in European Union jurisprudence, notably M’Bodj v Belgian State, the Judge strongly criticises the restrictive approach of the CJEU and further highlights the contradictory approach that followed inCentre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida  concerning the protection of seriously ill foreign nationals. From the reading of both cases the Judge points out the reasonable procedural guarantees in Abdida and at the same time the deprivation of the most elementary substantive guarantees in M’Bodj. Moreover, the Judge highlights that the M’Bodj judgment “affords legally resident foreign nationals a lesser standard of protection in terms of health care than that afforded by the Abdida judgment to those who are illegally resident.” This internal contradiction is ever present in ECtHR jurisprudence with an unreasonably restrictive interpretation of the Article 3 substantive guarantee in N v UK and a reasonably broad procedural interpretation of the right to an effective remedy for asylum seekers in Hirsi Jamaa and Others v. Italy. The judge therefore laments the majority for not reviewing the standards set out in N v UK.

Moreover, the Judge analyses the reasoning of the Grand Chamber in N v UK highlighting that the judgment waters down the legal force of Article 3 “on the basis of purely speculative assumptions regarding both the future care and support that seriously ill persons would obtain in the receiving State.” Indeed, the judgment is wholly based on economic and political concerns, lacking clear legal criteria, notably with regards to the degree of seriousness of illness and accessibility of treatment in the country of origin. Moreover, it contradicts the central tenant of Article 3, espoused in Soering v UK, that removal is prevented where there is uncertainty about the possibility of ill-treatment in the receiving State and that the burden of proof is on this State to demonstrate that an Article 2 or 3 violation will not occur. N v UK instead reverses the burden on to the applicant to prove that he/she will face ill-treatment or death. Concluding his Opinion Judge Pinto de Albuquerque questions “how many N.s have been sent to death all over Europe since the judgment and how many more will have to endure the same fate until the “conscience of Europe” wakes up to this brutal reality and decides to change course.”


20 March 2015
This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Burden of proof
Effective remedy (right to)
Health (right to)
Humanitarian considerations
Inhuman or degrading treatment or punishment
Medical Reports/Medico-legal Reports
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Vulnerable person