S.J. v. Belgium: missed opportunity to fairly protect seriously ill migrants facing expulsion

This guest post was written by Sarah Ganty, Ph.D. student at the Institute for European Studies and at the Faculty of Law (Perelman Centre for Legal Philosophy) of the ULB within the Research project ARC “Sous le signe du mérite et de la conformité culturelle, les nouvelles politiques d’intégration des immigrés en Europe”. See also the post she wrote for the Blog of the Berkeley Journal of International Law.

On March 19, 2015, the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) struck out of its list the sensitive case of S.J. v. Belgium on the basis of the friendly settlement between the Belgian Government and the applicant, S.J, mother of three children, who suffers from an advanced stage of AIDS and faced expulsion. Indeed, the Belgian Government ultimately regularized the residency status of the applicant and that of her three children, justified by the “strong humanitarian considerations” of their situation.

Why then write this note on a case that was not eventually ruled on the merits by the GC of the Court and where the outcome looks like a “happy ending”? As Judge Pinto de Albuquerque explained in his powerful dissenting opinion, the GC’s decision was in fact a missed opportunity for the Court to adopt a humane and fair position towards the vulnerable category of seriously ill migrants in irregular situations. Indeed, under procedural rules enshrined in Article 37 para. 1, of the European Convention of Human Rights (ECHR), the Court might have considered that, despite the friendly agreement, it was worth continuing the examination of the application for the sake of decent protection of the human rights of seriously ill migrants in Europe. However, the Court decided otherwise.

In this context, the S.J. case is a good opportunity to return to one of the most troublesome case laws of the ECtHR in terms of protection of vulnerable people, which is greatly questionable regarding international obligations of the Council of Europe’s Member States.

The case law of the ECtHR concerning seriously ill migrants facing expulsion

Ms. S.J.

Firstly, who is Ms. S.J.? S.J. is a Nigerian national who arrived in Belgium in 2007 at the age of seventeen, when she was eight months pregnant. Since then, she has given birth to three children in Belgium. At the time of her arrival, she lodged an application for asylum, which was dismissed. In the meantime, she was found to be HIV-positive with a serious immune system deficiency requiring antiretroviral treatment. Given her serious illness and the lack of treatment in Nigeria, she also submitted an application for a residence permit on medical grounds, which was denied. Ms. S.J. and her three children were subsequently ordered to leave Belgium. On appeal against the decision, the Belgian domestic courts dismissed her application for the suspension of her expulsion. In 2010, Ms. S.J. finally lodged an application before the ECtHR.

On this basis, before the Court, S.J. invoked the violation of article 3 of the ECHR that enshrines the right not be subjected to torture or to inhuman or degrading treatment or punishment.  S.J. claimed that if she and her three children were expelled, she would certainly die in Nigeria given the critical stage of her disease and the lack of accessibility to the right treatment in that country. She also claimed that her vulnerability was even greater considering her children’s young ages (between two and six years old), all of whom were likely to become orphans since she had no family and social network in Nigeria.

In the ECtHR’s judgment of February 27, 2014, the Fifth Section concluded that, since the applicant was not “critically ill” and was able to travel, the level of gravity of article 3 of the ECHR was not reached (para. 125). As a result, the Court found that the expulsion of the applicant and her three children to Nigeria would not breach article 3. The applicant then requested to refer her case to the GC, which struck it out of the list a few weeks ago, as already explained.

Ms. N.

It is striking that in the judgment of February 2014, the Court referred to the sadly well-known case, N. v. United Kingdom, ruled by the GC of the Court on May 27, 2008. The N. v. United Kingdom case illustrates a shift to the very restrictive case law of the Court concerning the protection of seriously ill migrants in irregular situations. As in S.J.’s case, N. was an applicant suffering from an advanced stage of AIDS. Similar to S.J., she claimed she was going to die in great suffering in her country of origin, Uganda, where there was no available treatment. Similar to the case of S.J., despite the situation of high vulnerability of N., the Court concluded that she was “fit to travel,” (para. 47) not critically ill, and, therefore, did not qualify as a “very exceptional case,” (para. 50) “where the humanitarian grounds against removal are compelling.” (para. 52) On this basis, N. was expelled to Uganda where she died a few months later, unsurprisingly.

A case law in contradiction with Article 3 ECHR

Numerous authors (see notably S. Slama & K. Parrot, N. Hervieu, L. Leboeuf) and judges—in dissenting opinions—have denounced the inhuman and overly restrictive case law of the Court.

A protective case law, excluding seriously ill migrants

The case law reflected in N. v. United Kingdom and subsequent decisions is in total contradiction with the terms and purpose of Article 3 of the ECHR as well as with the related case law of the Court. Indeed, the Court has repeatedly maintained that Article 3 enshrines one of the most fundamental values of democratic society (Chahal v. United Kingdom, para. 79) and makes no provision for exceptions even in the event of a public emergency threatening the life of the nation. In addition, according to the Court, the prohibition provided by Article 3 against ill treatment is equally absolute in expulsion cases (Chahal, para. 80). On this basis, the Court has developed a strict scrutiny and adequate threshold of Article 3 in cases of expulsion of asylum seekers and extradition of criminals.

In cases involving asylum seekers the Court has incessantly condemned Member States for violations of Article 3 of the Convention on the basis that applicants brought substantial grounds for believing that they would face a real risk of ill treatment if removed to another State (Chahal; Jabari v. Turkey; Hirsi Jamaa & others v. Italy, A.A. v. France, M.S.S v. Belgium and Greece, Tarakhel v. Switzerland). In the framework of extradition, the Court found in Soering that the real risk of being put on “death row” if removed to the US went beyond the threshold set by Article 3. Moreover, in Aswat, the Court held that the extradition of the applicant to the US amounted to ill treatment because the detention conditions would likely be exacerbated by his condition of paranoid schizophrenic. Ironically and with a fair amount of provocation, one can wonder whether S.J. would have been better protected by the Court regarding the Aswat and Soering case-law – notably as the Court requested some guarantees concerning the availability of treatment in Nigeria – if she had been a criminal under an extradition procedure.

Budgetary constraints as a justification

According to the Court “The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.” (Pretty v. United Kingdom, para. 52)

Why then are seriously ill migrants in irregular situations still treated so unfairly under Article 3 of the ECHR, in comparison to asylum seekers and migrants under an extradition measure? Why has the threshold of Article 3 been brought so high that it is impossible to reach except if the migrant is on his/her deathbed?

The answer is given in the case law that developed in the wake of N. v. United Kingdom. The Court is afraid that it “would place too great a burden on the Contracting States.” (para. 44 in fine) Budgetary constraints. This is the reason why the Court continues to refuse fair protection to these vulnerable people. However, as underlined by the judges in their joint dissenting opinion in the N. case, “Such a consideration runs counter to the absolute nature of Article 3 of the Convention and the very nature of the rights guaranteed by the Convention.” (para. 8) Indeed, what is the role of Human Rights bodies if not to protect the most vulnerable whose lives are at risk due to political and economic considerations of the State? Moreover, as underlined by the minority in N., “when one compares the total number of requests received [by the ECtHR] (and those refused and accepted) as against the number of HIV cases, the so-called “floodgate” argument is totally misconceived.” (para. 8 in fine)

Unacceptable differences of treatment

In addition, I believe that the distinctions between the categories of seriously ill migrants and those of asylum seekers and migrants under extradition measures do not justify the high difference of threshold in the application of Article 3. What are the distinctions between them? In the case of asylum seekers, the ill treatment is caused by a third party while, in the case of seriously ill migrants, it is caused by a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country. In the situation of extradition, the difference lies in the procedure chosen by the State. Indeed, extradition procedures are based on international cooperation in criminal matters, usually laid down in treaties while expulsion and deportation procedures are mainly based on national legislation related to immigration and are unilateral by nature.

Yet, the situation of the three categories – asylum seekers, seriously ill migrants in irregular situations and migrants under extradition procedures – ends up with similar effects and consequences under article 3 ECHR: ill treatment or torture – followed sometimes by death – in case of expulsion, deportation or extradition. As a result, regarding the effects and consequences of the removal of those three categories, the ‘absolute’ character of article 3 ECHR pleas for the application of a similar threshold whatever the reason of the persecution and the procedure at hand. In other words, it is the role of the States – and the role of the Court to remind them – to protect seriously ill migrants in irregular situations under their jurisdiction either by obtaining guarantees from the government of the receiving country or by keeping them on their territory if there is any risk those people might die in the short term and in greater suffering because of the lack of treatment and family support.

An urgent need to come back to the D. v. United Kingdom case law

It is striking that, before N. v. United Kingdom was decided, the Court seemed to adopt an adequate position towards the protection of seriously ill migrants in D. v. United Kingdom, ruled on May 2, 1997. In that judgment, noting that the applicant had an advanced stage of a terminal and incurable illness (para. 51), the Court found that the abrupt withdrawal of the facilities he had in the United Kingdom would have entailed the most dramatic consequences for him (para. 52). The Court further ruled that there was a serious danger that the conditions of adversity awaiting him in Saint Kitts would have further reduced his already limited life expectancy and would subject him to acute mental and physical suffering. It finally came to the unanimous conclusion that the implementation of the decision to remove the applicant to Saint Kitts would have amounted to inhuman treatment in violation of Article 3 (para. 54; see also the Report of the European Commission of Human Right, B.B. v. France). The D. line of case law has been watered down a lot by the ECtHR in N. and completely disappeared from the following decisions of the Court in cases related to seriously ill migrants.

Why not return to the example of the judgment in D. v. United Kingdom and establish a human and reasonable understanding of “very exceptional cases”? Let’s hope that the ECtHR will rapidly realize how this case law is in total contradiction with its own title of Court of “Human Rights” to avoid further “N.” outcomes and to save more individuals like S.J.