October 31, 2016
Guest post by Benoit Dhondt, Belgian lawyer specialized in migration and refugee law. As a teaching assistant, he is also connected to the Human Rights Centre of Ghent University, more specifically its Human Rights and Migration Law Clinic.
Several practitioners were disappointed with the road the ECtHR traveled in Khan v. Germany last year. With the Grand Chamber referral, hope rose for a more sensible approach and greater protection standards for mentally ill migrants on the verge of expulsion. Alas, the Grand Chamber has struck out the case, leaving us with more questions than answers. In what follows I will give a brief description of the case after which I will delve a little bit deeper into some of the issues the decision to strike out has left untouched.
The applicant in Khan v. Germany is a 53 year old Pakistani woman who fled to Germany in 1991 with her husband, a man belonging to the Ahmadiyya faith, a severely discriminated against religious minority. The applicant had converted to her husband’s faith. Both applied for refugee status upon arrival in Germany. Whilst the application of her husband was successful, her own application was refused. She obtained a residence permit as the spouse of a refugee in 1994. In 1995 the couple had a son but in 1998 they separated from one another. The son resided with his mother. She obtained an indefinite residence permit in 2001. From 2004 on, the life of the applicant started taking a turn for the worst. She lost her job because of behavioral issues. Her husband filed for divorce and she lost custody of her son. The applicant, who suffers from schizophrenia and diminished intelligence, killed her neighbor in a state of acute psychosis. She was committed to a psychiatric hospital and a guardian was appointed to her. In 2009 the German authorities ordered her expulsion on account of the fact that she posed a danger to public safety. The government stated that she was not all that integrated into German society, had only limited contact with her son and might receive support from her family in Pakistan.
The applicant started a procedure before the ECtHR and on 23 April 2015 the Court decided there to be no violation of article 8. According to the Court, medical care in Pakistan would be sufficient and the applicant would be able to rely on the help of family members. The case was referred to the Grand Chamber, but subsequently struck out. The German authorities had decided to tolerate the applicants presence for a certain time (the so-called ‘Duldung‘ status) and they guaranteed that before removing the applicant, a new expulsion order would be issued after a thorough medical examination and taking account of the time which had passed. The Grand Chamber of the Court repeated its case-law on the striking out of cases and remarked that even in cases where no residence permit was granted, the Court might strike a case out if it is clear that the applicant no longer faces any risk for a foreseeable time to come of being expelled and of being subjected to treatment contrary to Article 8 of the Convention. The Court was satisfied with the guarantees offered by the government and struck out the case, referring to its subsidiary role and to the fact that the elements at play are mere factual appreciations and not special circumstances regarding respect for human rights. In his dissenting opinion judge Sajó raises two important issues. The first issue is whether the tolerated residence status for a mentally disabled person is at odds with the Convention or not. The second issue he takes on is the fact that the supervisory role of the Court could serve as a legitimate ground to strike out cases, as it would leave the Court completely unbound in judging whether a case should be struck out or not.
One year after the S.J. v Belgium judgment and it seems the Court has missed yet another major opportunity to speak out on the protection standards for people in need of medical treatment, be it under article 3 or under article 8 of the Convention. In this post I will take a closer look at the guarantees that the German government offered, i.e. the nature of the tolerated stay or Duldung, the material point in time at which an article 8 violation might take place in migration cases and the promise of a new decision which takes the medical situation into account. Central to these elements will be the rather manifest vulnerability of Ms. Khan, so I will start with this point.
The Court has famously treated asylum-seekers as a particularly vulnerable group. (see M.S.S. v. Belgium and Greece, §251, and Tarakhel v. Switserland, §§118-119). It has not shed any light yet on the specific point in time at which this ‘procedural’ vulnerability would come to an end. If we take a look at the facts known in the Khan case, we see an applicant who is prima facie extremely vulnerable. Recent case-law of the Court suggests that as a convert to the Ahmadiyya faith she might be at risk of persecution. The fact that she suffers from severe psychological problems only aggravates this risk, as research shows persons suffering from a mental illness to be overrepresented in the group of those accused of blasphemy in Pakistan. But Ms. Khan came to Germany as an asylum-seeker, so when did her intrinsic vulnerability end according to the Court? Did Ms. Khan devolve into a ‘plain’ migrant after the rejection of her asylum application, and if so, why? As a female migrant, struggling with severe mental health issues, she remained highly vulnerable. There seems to be no justification for stepping over this manifest vulnerability. As judge Sajó rightly remarked, chances are that the vulnerability of the applicant will be exacerbated by the Duldung status and its intrinsic uncertainties. Just very recently the Court took a completely different route in B.A.C. v. Greece in which it judged an asylum procedure that took over 15 years to be incompatible with the positive obligation of the State to safeguard the right to a private life, and this precisely because of the precariousness of the applicant’s residence status during the procedure. In B.A.C. the Court did not judge the risk of an article 8 violation in regard to the refusal of residency or an expulsion, but in regard to the longevity in time of the procedure itself.
Timing an article 8 violation
This brings us to another question raised but unaddressed by the Khan judgment, the material point in time at which an article 8 violation occurs. The Duldung status in Khan would hardly bring the applicant in a better position than the uncertain residence status in B.A.C.. Ms. Khan will be tolerated on the territory, but she will not enjoy residency rights and the threat of a new expulsion would continuously loom large. One could imagine this to be a bit much for a mentally unstable woman of 53, rejected by both her family and society. So how can it be that in B.A.C. the precarious residency status is the crux of an article 8 violation, while in Khan v. Germany it is the very reason the Court holds the violation to have taken an end? In B.A.C. the applicant’s private life was assessed in relation to the State’s positive obligation to protect it, while in Khan v. Germany private life was addressed in terms of the State’s negative obligation not to infringe upon it. Whether the approach starts from a positive obligation or a negative one has consequences for the material point in time at which the violation occurs. From the case law on this subject it would seem that in some cases the enforcement of the expulsion decision is the material point in time (Khan v. Germany), in others we have to look at the refusal of residency (Paposhvili v. Belgium), and in B.A.C. it is the precarious residence in absence of a decision that forms the material point in time. The difference between these approaches might seem abstract, but the effects are all too real. In Paposhvili v. Belgium the Court makes a clear difference between the refusal to grant residency and the decision to expel before deciding to treat the case under the positive obligations of the Belgian government (§138). The Belgian court (the CALL) had refused several times to examine the complaints of the applicant under article 8 as there was no imminent expulsion foreseen. It was only when the applicant was detained in order to enforce the expulsion order that the article 8 violation was examined. I would assume the foreseeability of an actual expulsion would only come to play as long as it is but the negative responsibility of the State that is invoked. The positive obligation of the State to grant residency (Rodrigues Da Silva and Hoogkamer v. The Netherlands, §38, Jeunesse v. The Netherlands, and Paposhvili v. Belgium) is tied to the refusal of a residence permit and not to the expulsion decision. The B.A.C. case takes this positive obligation one step further. Yet in the Khan judgment the mere fact of being tolerated on the territory seemingly quells the matter of the positive obligation of the State to secure her private life. If anything, this is inconsistent, as the Duldung is a status that stays off the threatening expulsion for a certain time, but grants its subject no right of residency whatsoever and in so far as it allows for a private life it is one built on quicksand. If we compare this precarious residence status in Khan v. Germany to the residence situation of the applicant in A.A. v. the United Kingdom we see that in A.A. the applicant had not been detained, could attend university and could even work after the expulsion decision had been taken. While he arguably had more rights than Ms Khan under the Duldung status, in A.A. v. The United Kingdom, it was the effect of the additional lapse of time between the expulsion order and the Courts’ judgment on the proportionality of the applicant’s deportation that was crucial for the Court in finding an article 8 violation (§§67-68). In Khan v. Germany a similar lapse of time is actually artificially introduced by the Government’s guarantee to tolerate Ms. Khan’s presence until a new decision will be taken, only this time it is not part of the violation but one of the reasons why the case has been struck out.
Guarantees to legal entitlements
This brings us to the final element of the guarantees the German government offered: the fact that the expulsion order would not be enforced, but that a new one would be taken after re-examining the medical evidence. In Paposhvili v. Belgium the underlying decision of 2010 from which the attempted enforcement of the expulsion flowed, was replaced by a new decision in 2012. This last decision was not accompanied by enforcement measures, and entailed a new examination of all relevant elements. It is hard to see in what way this situation differs from the guarantees in Khan, which sufficed to strike out the case. Of course, one could argue that a new decision is not the only guarantee Ms. Khan has been offered. She is also tolerated on the territory until a new decision will be taken. However, tolerating a third country national on the territory goes into the objective of EU law, more specifically the Return Directive 2008/115/EC, and the obligation of member states to either grant a residency right or to work towards expulsion in the shortest delay possible (CJEU, 6 December 2011, C-329/11, Alexandre Achughbabian v. Préfet du Val-de-Marne, §§ 35 and 45). The Return Directive offers guarantees to every third country national, notably the guarantee to enjoy basic medical health care whilst awaiting the expulsion procedure and the guarantee not to be expelled without having one’s medical condition and family life taken into consideration. In effect, if the return is stayed, this directive provides for the possibility to be tolerated on the territory with medical guarantees. Immediately we are compelled to question in what way the German guarantees offered to Ms. Khan go beyond that which is legally required according to the Return Directive.
It is clear that the Khan v. Germany case goes well beyond the assessment of the factual situation of the applicant and raises some very delicate questions with regard to the protection offered to migrants under article 8 and the consistency of the guiding principles we could derive from the case law at hand. We can only hope that the Court will grab the next opportunity to shed a light on these matters and maybe the Grand Chamber will do so in Paposhvili v. Belgium.