In a Grand Chamber judgment last month, the European Court of Human Rights provided a positive recalibration of the circumstances in which an individual suffering from a serious illness can resist removal under article 3 of the ECHR.
Paposhvili v Belgium originated in an application (no. 41738/10) by a Georgian national, Mr Georgie Paposhvili in 2010. Mr Paposhvili had been living in Belgium since November 1998, when he claimed – but was subsequently refused – asylum. Between 1998 and 2015, he committed a number of dishonesty-related offences, including theft and robbery. In November 2005, he was sentenced to three years’ imprisonment.
In 2006, while he was in prison, Mr Paposhvili was diagnosed with chronic lymphocytic leukaemia. In February 2008, a report prepared by Antwerp University Hospital stated that his condition was life-threatening and that his life expectancy was between three to five years. Mr Paposhvili was also diagnosed with hepatitis C in 2006 and he had previously been diagnosed with pulmonary tuberculosis, which became active again during 2008. An imaging scan carried out in March 2015 showed that Mr Paposhvili had suffered a stroke, resulting in permanent paralysis of the left arm.
Mr Paposhvilli made a number of requests for leave to remain on exceptional grounds between 2000 and 2007. On 7 July 2010, however, the Belgian Aliens Office issued an order for him to leave the country, together with an order for his detention. On 23 July 2010 he applied to the Court for an interim measures under Rule 39, on the basis of Articles 2, 3 and 8 of the Convention. He alleged that if he were removed to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die even sooner, far away from his family.
In its Chamber judgment of 17 April 2014, the European Court of Human Rights unanimously declared the application admissible but held that the enforcement of the decision to remove Mr Paposhvilli to Georgia would not entail a violation of Articles 2 and 3 or 8 of the Convention.
On 14 July 2014 Mr Paposhvilli requested a referral of his case to the Grand Chamber under Article 43 of the Convention. Unfortunately, he died on 7 June 2016 while his case was pending. However, the Court decided to continue the examination of Mr Paposhvilli’s application on the basis of the “special circumstances” of his case. It decided that, although the primary purpose of the Convention system is to provide individual relief, “its’ mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights” and that there were “important issues at stake” concerning the expulsion of aliens who are seriously ill. The case was heard on 16 September 2015 and handed down on 13 December 2016.
The Court shed some welcome light on the “very exceptional circumstances” in which it would find a breach of article 3 in removal cases of seriously ill persons, laid down in the earlier authorities of D v UK (1997) 24 EHRR 423 and N v UK (2008) 47 EHRR 885 [GC]. Both cases concerned an applicant suffering from Aids. In D v UK, a violation was found on the basis of the real risk of death to a critically ill applicant “under the most distressing circumstances” if he was returned. In N v UK, the medical condition of the applicant was not found to be critical and neither the inferiority of treatment, nor the fact of a significant reduction in life expectancy were found to constitute “exceptional circumstances” capable of breaching article 3. These cases together became the authority, therefore, for the suggestion that people who are subject to expulsion cannot claim an entitlement to remain solely to continue to benefit from medical, social or other forms of assistance.
And although in N the Court recognised the possibility of additional circumstances beyond imminence of death (such as in D) that could be characterised as “exceptional”, the jurisprudence that followed was silent as to what such circumstances could be. As a result, the effect since N has been to deprive people from the benefit of article 3 in removal cases unless their condition was critical.
The Court in Paposhvilli seemingly lifted this previously restrictive approach by holding, at paragraph 183, that the very exceptional cases referred to in N:
“…refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed 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.” (our emphasis).
The Court was keen to emphasise that such situations still correspond to a high threshold for the application of article 3. Nevertheless, it is clear that non ‘deathbed’ cases may now be “very exceptional” for the purpose of article 3, in particular, where there is a risk of a decline which either results in “intense suffering” or a “significant reduction in life expectancy”.
Crucially, the Court also laid down a number of procedural protections guaranteed under article 3, which it applied in Paposhvilli to the removal of a seriously ill applicant. These include the requirement for the State to examine the foreseeable consequences of return before actual removal; with regard to both the general situation in the receiving State and the individual’s personal circumstances. In doing so the authorities should give due consideration to whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness. Potential factors in this assessment will be whether the individual will actually have access to this care and facilities in the receiving State, having regard to accessibility, cost, the existence of a social and family network and distances to be travelled. Further, where serious doubts exist concerning removal the State must obtain “Tarakhel-like” guarantees that the individual will actually receive appropriate treatment.
It was precisely a failure of the Belgian authorities to conduct such an assessment of the risks posed to Mr Paposhvilli – despite the information presented to them regarding his state of health and access to treatment in Georgia – that lead the Court to find a breach of the procedural requirements of article 3, something which consequently also lead to a breach of article 8.
There remains no right to specific treatment in the receiving state; and a mere disparity with the health-care systems in the removing is not, in itself, sufficient to engage article 3. The question remains whether the act of removal will expose the applicant to a violation of article 3, according to the “real risk” test quoted above from paragraph 183 of the Court’s judgment. But the judgment in Paposhvilli has been welcomed as one that, at the very least, has widened the circumstances in which a foreign national suffering from a serious illness can resist removal under art 3 ECHR.