Is there a space for Humanitarian Protection within Subsidiary Protection? A reading of M’Bodj

Introduction

This article is to be read in conjunction with the EDAL case summary

In two recent judgments, the Court of Justice of the European Union (CJEU) has provided clarification on the scope of international protection in cases where claimants are suffering from serious illnesses.

Both cases are linked to a request for a residence permit on medical grounds offered by the Belgian Law in the article 9ter of the Belgian Alien’s Act. This specific procedure was introduced in the law together with the large reform of the asylum procedure in 2006 and the transposition of Directives 2004/83 (Qualification Directive) and 2005/85 (Asylum Procedures Directive). Arguably, it was the intention of the legislator to create a specific channel by which the transposition of subsidiary protection could take place within the regular asylum procedure. The reasoning being that article 15(b) of the Qualification Directive has substantially the same scope as article 3 of the European Convention on Human Rights (ECHR), and the protection based on medical grounds fell also under the scope of article 15(b), but practical administrative reasons were guiding the choice for a separate procedure.  On various occasions, the Belgian Constitutional Court had recalled that the procedure deciding residence permits for medical reasons was grounded in the Qualification Directive. (CC, arrêt n°95/2008 du 26 juin 2008 ; B.62, CC arrêt n°193/2009 du 26 novembre 2009 ; B.3.1, CC, arrêt n° 82/2012 du 28 juin 2012 ; CC, arrêt n°43/2013 du 21 mars 2013).

This was thus taken for granted until the claims of Mr M’Bodj, and Abdida were decided upon. By its judgments, the CJEU rejects the possibility that a protection assessment on medical ground could as such be covered by the Qualification Directive unless intentional actions may be found to explain the lack of access to healthcare. It has to be seen as a national procedure which has to comply with the legal safeguards offered by the Return Directive seen under the light of the Charter of Fundamental Rights by the European Union.

The CJEU judgment in M’Bodj case

The judgment CJEU, Mohamed M’Bodj (C-542/13) v État belge, 18 December 2014clarifies the boundaries of the subsidiary protection, and more precisely one of its concepts, serious harm which includes torture or inhuman or degrading treatment or punishment of an applicant in the country of origin (Article 15(b) of the Qualification Directive). By its wording, this disposition of the Directive is very similar to article 3 ECHR. This similarity was already confirmed by the Court of Justice in the judgment Elgafaji : “ (…) Article 15(b) of the Directive (…) corresponds, in essence, to Article 3 of the ECHR..” (CJEU, Elgafaji (C-465/07) v Staatssecretaris van Justitie, 17 February 2009; §28).

But does it imply that Article 15(b) covers all cases of extraterritorial application of Article 3 ECHR? The Court recalls that Article 15 must be read in conjunction with Article 6 of the Qualification Directive. The latter “sets out a list of those deemed responsible for inflicting serious harm, which supports the view that such harm must take the form of conduct on the part of a third party and that it cannot therefore simply be the result of general shortcomings in the health system of the country of origin” (M’Bodj, §35). The Court further finds that risks to which the population of a country or a section of the population is generally exposed do not normally in themselves create an individual threat which would qualify as serious harm (Recital 26). It follows that the risk of deterioration in the health of a third country national suffering from a serious illness as a result of the absence of appropriate treatment in his country of origin is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection. (M’Bodj, §36)

These elements bring the Court to a conclusion that protection based on medical grounds as envisaged by the Belgian Law has no connection with the rationale of international protection.

The CJEU judgment in Abdida

The judgment in Abdidadelivered by the CJEU later on the same day concludes that the questions referred are based on a wrong premise. Following M’Bodj, a request for protection based on medical grounds as a part of a national protection system in Belgium cannot be seen as a claim for protection within the meaning of the Qualification Directive. Nevertheless, Mr Abdida is facing an administrative decision that must be qualified as a “return decision” within the meaning of Article 3.4 of Return Directive, which leads the Court to clarify the scope of Article 13 of the Returns Directive on effective remedy and articles 9 and 14 of the Returns Directive on the postponing of the enforcement of a return decision when fundamental rights covered by article 5 of the Return Directives are at play.

Comment

Being complementary, those two judgments interpret many concepts. While M’Bodj gives a restrictive reading of the Qualification Directive, Abdida develops protection tools by giving an extensive reading of the provisions of Return Directive. This unexpected turnof a repressive instrument such as the Return Directive merits interest, but I would like to focus here on the M’Bodj judgment and the fate of subsidiary protection.

The classical notion of responsibility for international protection

The issue of responsibility is a classical and central notion in the definition of protection for refugee law. International responsibility assumed by international protection starts when the national responsibility of the state of origin fails. The responsibility to protect is in principle a state responsibility. Refugee protection is a substitute protection by recognizing persecution as being a risk of serious harm that the state is unwilling or unable to protect against. (J.C. Hathaway & M. Foster, The law of Refugee Status, Cambridge University Press, 2d ed.  2014; pp. 185, 293. See also ECRE, AIPAPA, Actors of Protection and the Application of the Internal Protection Alternative, European Comparative Report, 2014; p. 33) The state’s responsibility to ensure the fulfillment of human rights is also rooted in the global accountability of international human rights against persecution. For instance, according to Hathaway and Foster, it is a helpful means of guarding us against the trivialization of claims as mere discrimination, or as implicating only lower order rights. It requires attention to the fact that an attempt to exclude segments of the population from economic and social life can be a more subtle but very powerful method of producing the slow suffocation of minority groups. (J.C. Hathaway & M. Foster; p. 232)

Access to medical care constitutes one of those socio-economical rights often neglected in the evaluation of the persecution schemes. The existence in the Belgian Law of a separate administrative procedure for the protection of medical needs have sometimes led to the automatic exclusion of medical grounds from the general protection assessment. This was the case for a Roma family originating from Macedonia claiming that their son, seriously ill, could not access the appropriate treatment because of his Roma ethnicity. While the administration rejected the claim for the reason that they didn’t use the appropriate procedure, the Appeal Board quashed the decision, noting that in cases of discrimination  when accessing healthcare, the consequences may be considered as persecution. (CCE, arrêt n°50.486 du 28 octobre 2010)

The notion of responsibility in the ECtHR case-law

The problem of responsibility is at the heart of the assessment of the risk of serious harm where there is insufficient medical care in a country of origin. In D v UK, the Court acknowledges that until this case, compatibility of the enforcement of removal decisions with the Convention had so far been applied in contexts where the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts. But the fundamental importance of article 3 cannot prevent the assessment where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country. (D, §49). Given the terminal stage of his illness and the lack of any support to attend to the needs of a terminally ill man in his country of origin, exceptional circumstances and compelling humanitarian considerations render the removal of D. to be in violation of article 3. (D ; §§53-55)

This very high threshold has been maintained and reinforced in N v UK“given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country”. (N ; § 43) The Court shows here a defiance towards social and economic rights recalling that the Convention is essentially directed at the protection of civil and political rights. Bearing in mind that the availability of treatments may vary considerably between states due to their capacities to organize the healthcare, it would place a too great burden to the contracting states of the Convention to oblige them under article 3 to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. (N ; § 44) These conclusions assume in practice a double standard in the assessment of article 3, difficult to reconcile with its absolute nature as reaffirmed for instance in the judgment (F. Julien-Laferrière, L’éloignement des étrangers malades : Faut-il préférer les réalités budgétaires aux préoccupations humanitaires ?, RTDH, 2009-77, p. 32) The judgment Yoh-Ekale Mwanje v Belgiumis a rather cynical example of such a double standard. While the absence of the appropriate treatment for AIDS during the detention pending removal amounted to a violation of article 3, the removal as such didn’t, despite the absence of any reasonable chances of the continuation of that same treatment.

The notion of responsibility in removal cases have been further developed within the assessment of article 3 relating to the access to basic needs and more broadly humanitarian circumstances. In M.S.S. v Belgium and Greece, when assessing a Dublin transfer of an asylum seeker to Greece, the Court has found that “the Greek authorities have not had due regard to the applicant's vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs.” (MSS ; §263)

In recent judgments of the ECtHR the assessment of the responsibility evolves on a balance where  N. and M.S.S. are the two poles. In Sufi and Elmi v UK, the Court explains that the consideration of socio-economic and humanitarian conditions in a country of return remains at the margin of the assessment. At the end, the test becomes a responsibility question: “If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict.” “Consequently, the Court does not consider the approach adopted in N. v. the United Kingdom to be appropriate in the circumstances of the present case. Rather, it prefers the approach adopted in M.S.S. v. Belgium and Greece, which requires it to have regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame.” (Sufi and Elmi ; §§282-283)

The same exercise has been tried in S.H.H v UK, the removal of an Afghan person with special needs. Fighting with exegetic interpretations of the various updates of the UNHCR guidelines, the Court scrutinizes the dire humanitarian conditions of Afghanistan and concludes that the N. principles must be followed, it is considered all together, that the future harm would emanate from a lack of sufficient resources to provide either medical treatment or welfare provision rather than the intentional acts or omissions of the authorities of the receiving State. (SHH; §89)  Contrary to the Sufi and Elmi judgment, “the Court is not able to conclude that the situation in Afghanistan, albeit very serious as a result of ongoing conflict, is comparable to that of south and central Somalia. First, unlike Somalia, which has been without a functioning central Government since 1991, Afghanistan has a functioning central Government and functioning infrastructures remain in place. Second, Afghanistan, and in particular Kabul to where the applicant will be returned, remains under Government control, unlike the majority of south and central Somalia, which, since 2008, has been under the control of Islamic insurgents. Third, although UNHCR has observed that the humanitarian space in Afghanistan is declining in some areas as a result of the continuing instability there remains a significant presence of international aid agencies in Afghanistan, unlike in Somalia where international aid agencies were refused permission to operate in multiple areas.” (SHH ; §91) Interestingly, the dissenting opinion of the minority was not satisfied with the responsibility check balance made by the Court. For these three judges, the concrete situation of SHH doesn’t fall strictly speaking within the lines of N. or Sufi and Elmi. “The facts of the instant case fall somewhere in between these lines of the Court’s case-law and thus raise a new issue before the Court.” (SHH, dissenting opinion; §3) Leaving  aside the criteria required to assess  basic needs in Afghanistan, and the political weight of the assumption that this country is indeed equipped with a functioning government after more than 10 years of massive investment in international state building (see for instance on the public health issue, MSF, Between Rhetoric and Reality, the Ongoing Struggle to Access Healthcare in Afghanistan, February 2014. For a global approach see, Astri Suhrke, When More is Less, The International Project in Afghanistan, Hurst & Co., London, 2011) the reasoning by analogy shows here some limits and raises the question of what the N-type cases are really about. (E. Webster Non-nationals, living conditions and disability: Situating S.H.H. v. United Kingdom within Strasbourg’s Article 3 case-law, Strasbourg Observers Blog, 19 February 2013)

Relevance of subsidiary protection

What are the consequences of the recent judgments of the Court of Justice for the comprehension of subsidiary protection?

According to the Court to fall under subsidiary protection, it is necessary to single out an actor responsible for the serious harm as defined in Article 6 of Qualification Directive. Risks to which the population of a country or a section of the population is generally exposed do not normally in themselves create an individual threat which would qualify as serious harm. It follows that the risk resulting from the absence of appropriate treatment in his country of origin is not sufficient, unless that third country national is intentionally deprived of health care, to warrant that person being granted subsidiary protection.

Such a narrow and general view on the need of protection further limits the relevance of the subsidiary protection in its original goal to be a subsidiary form of protection as an extension of the prior existing refugee protection and enlarging the protection scope. If we pinpoint potential concrete situations fitting within the M’Bodj interpretation, we cannot find examples where an asylum seeker would at the same time be able to single out an actor, an intention to harm and consecutively, the absence of any effective protection, without falling within the refugee definition?. In Elgafaji, the attempt to reconcile individual threats and indiscriminate violence ended in the following submission: “the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection”. (Elgafaji ; §39) In practice, this argumentation blurs the different frames of protection because the asylum seeker who is able to give objective reasons for being targeted would definitively be a refugee. Even though subsidiary protection is an autonomous regime of protection within EU law, the Court of Justice fails to comprehensively define its scope of application separate yet complementary to refugee protection.  It is also the task of the CJEU to secure that the subsidiary protection is not applied at the expenses of the refugee protection. (UNHCR, Safe at Last? Law and Practice in Selected EU Member States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence, 27 July 2011; pp. 18-20)

The incautious return of the notion of intentionality in asylum law

The M’Bodj case could undermine recent consensus within asylum law. Focusing on the intentions of the persecutor requires some evidence of particular intention. It imposes on the asylum seeker a very challenging evidentiary hurdle given the unlikelihood of the persecutor clearly announcing his motives. More, it restricts the refugee definition to those who are intentionally victimized those who, within a situation of generalized risk, did not benefit from state protection because of their race, religion, or other protected ground. (J.C. Hathaway, Food Deprivation: A Basis for Refugee Status?, Soc. Res. 81, no. 2 (2014); p. 330). Insisting on intentions within asylum law could bring a revival of the “accountability theory” developed in the past by countries like France and Germany about the necessity to demonstrate in the end a state responsibility in the persecution process. Such approach focuses on the unwillingness of the state to protect, leaving aside the inability to protect, which at the end represents also a failure of the duty to protect with the same consequences for the victim of persecution. (J.C. Hathaway & M. Foster; p. 232)

We may guess that the focus on intentionality written in M’Bodj is a reference to N v UK. Nevertheless the ECtHR judgment refers to intentional acts or omissions of public authorities or non-State bodies, being more temperate in its formulation and less critical for the asylum seeker. It cannot be taken for a definitive interpretation of article 6 of Qualification Directive.

Black and white and many shades of grey

We understand the difference in nature of the illness as the source of the serious harm. In many cases, it is perceived as a natural fatality without designated responsibility. This view is shaping the N-type cases of the ECtHR where third country nationals coming from poor countries cannot have high expectations on the availability of treatments. While the right to the highest attainable standard of health promoted by the United Nations remains indeed in many countries a long term goal to achieve, states are nonetheless bound by core obligations in their public health policies. States have to ensure among others the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups (UN CESCR, General Comment n°14, 11 Augustus 2000, E/C.12/2000/4; 43).

Beyond the legal categories, we are facing a multiplicity of complex and dynamic situations where notions like subsidiary protection should have a role to play. If it is understandable that a large number of medical cases will usually fall beyond the responsibility of actors mentioned in Article 6 of Qualification Directive, on the contrary it follows from the case-law of the ECtHR that precarious humanitarian conditions, especially in conflict situations may be more easily attributed to the action of specific actors and fall within the scope of application of Article 15. (M. Maes, Artikel 3 als bescherming tegen socio-economische en humanitaire omstandigheden in het land van herkomst of terugkeer : de rechtspraak van het Europees Hof voor de Rechten van de Mens, T. Vreemd., 2013-1 ; p. 36) In practice, it will often be very complicated to draw a line between various actors and factors in order to determine if a specific dire humanitarian situation is the result of human/state actions or inactions, the result of natural cause and/or the simple lack of public means. Marleen Maes wonders how the ECtHR will assess in the future cases in relation to protection of victims of the global climate change, extreme poverty caused by corruption and wrong policies, etc. (M. Maes; p. 38) Steve Peers doubts that the Court of Justice would accept discussing such  intricate situations (Steve Peers, Could EU law save Paddington Bear? The CJEU develops a new type of protection, 21 December 2014). However, the EU Court cannot ignore their growing existence in the Strasbourg judgments, signs of an evolution in their approach of socio-economical rights, and maybe its exploration of finding ways to depart from N v UK judgment. 

M’Bodj proposes a fixed interpretation of international protection, disconnected from the protection challenges of today. (N. Klausser, Etrangers malades et le droit de l’Union européenne : Entre accroissement et restriction des garanties juridiques, La Revue des droits de l’homme, 9 janvier 2015; 29).  The future will depend upon the judgments of the ECtHR. When the content of human rights are to be defined, the ECtHR has the lead.

Tristan Wibault, lawyer, coordinator of ELENA Belgium

January 2015

(This journal entry is an expression of the author’s own views, and not those of EDAL or ECRE)