Switzerland – Federal Administrative Tribunal annuls return of applicant to Georgia due to serious health conditions

Date: 
Friday, February 1, 2019

On 1 February, the Federal Administrative Tribunal delivered a judgment on the possibility to remove a seriously ill Georgian national.

The applicant had applied for asylum for reasons relating to his health situation and his former employment at the Federal Security Service of Russia. The State Secretariat for Migration (SEM) rejected his application finding that there were no substantial fears of future persecution and considered his removal reasonable despite his medical condition. The applicant challenged this decision claiming his return would expose him to risk of retaliation by families of people he targeted as an employee of the Russian agency, as well as to exceptional psychological pressure due to the stigma associated with drug addiction and seropositivity. The applicant also argued that his removal would contravene Article 3 ECHR, as access to life-saving HIV medication would be severely restricted if he were to be returned to Georgia.

In accordance with the contested decision, the Tribunal found that the alleged risks did not meet the required threshold to justify granting of international protection, especially noting that his country provided services for recovering drug addicts and HIV-positive people. Although it recognised the discrimination associated with these vulnerable groups, the Tribunal did not consider it to be of such intensity that the applicant would not be able to live his life in dignity and confirmed the denial of international protection and the subsequent order for removal.

It went on, however, to examine whether the execution of this measure could go forward under domestic law, namely whether it would be lawful, possible and reasonably expected to remove the applicant. Removal would not be reasonably expected if the person's health state would deteriorate to such an extent that it would create a risk to his life. Therefore, the Tribunal considered that the gravity of the health condition and access to medication in Georgia would be determining factors to be assessed according to his individual situation. Given the applicant's advanced stage of HIV diagnosis and concurring mental health disorders it was emphasised that only particularly favourable circumstances in Georgia could allow his return.

Despite the existence of free HIV medication and universal mental healthcare in Georgia, the Tribunal concluded that his removal could not be considered reasonable. The applicant did not seem to have a sufficiently strong family network in Georgia, as his wife and children lived far from the capital, and his financial situation had been too precarious. These circumstances would not allow him to effectively continue the treatment he is receiving in Switzerland, which could then lead to a dangerous deterioration of his physical and mental health.

The execution of the applicant's removal was suspended and the SEM was instructed to grant the applicant provisional admission.

Based on an unofficial translation by the ELENA Weekly Legal Update.

 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. 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. 

                                                     

 

Keywords: 
Health (right to)
Inhuman or degrading treatment or punishment