Deportation, mental illness and Article 8 ECHR: a discussion of Azzaqui v the Netherlands

By Mark Klaassen

Mental illness can reduce the weight attached to the nature and seriousness of a crime in the context of balancing interests under Article 8 ECHR in deportation cases. In Azzaqui v the Netherlands, the European Court of Human Rights (the Court) confirmed the Grand Chamber judgment in Savran v Denmark and further clarified how mental illness plays a role in testing compliance with Article 8 ECHR. In this blog, I will first outline the facts of the case and the decision of the Court. After that, I will place the ruling in the context of the jurisprudence of the Court. In my discussion, I will focus on the Dutch practice of hospital orders for convicts with a psychiatric condition, concluding that amendments are required both in the practice of hospital orders and in the way Article 8 ECHR is applied in the revocation of residence permits.

Facts of the case

The case concerns a Moroccan national who was born in 1972 and arrived in the Netherlands in 1982. In 1991, the applicant received a permit for permanent residence. After being convicted for numerous crimes, in 1996, the applicant was sentenced for rape. In the context of the criminal proceedings, a psychiatric report was prepared, finding that the applicant has a personality disorder with schizotypal and antisocial traits and episodic psychotic experiences, creating a significant risk of reoffending. Accordingly, the applicant was sentenced to two-year imprisonment and a hospital order for psychiatric treatment (in Dutch: terbeschikkingstelling, abbreviated as TBS). The hospital order was extended thirteen times until 2016 when the criminal court extended it for one more year after the applicant was to be released to an assisted living facility. At the beginning of 2017 and before his release, the Dutch authorities informed the applicant of the intention to withdraw his residence permit on the grounds that he posed a threat to public order. This severely disturbed the applicant, who violated the conditions for his release by smoking marijuana and drinking alcohol. Later in 2017, the hospital order was extended for one more year because the applicant had broken the conditions for his release. In January 2018, the applicant’s residence permit was withdrawn. In balancing interests under Article 8 ECHR, the domestic authorities considered that the applicant’s interests in continuing his private life in the Netherlands did not outweigh the interests of the general public. Appeals against the revocation of the applicant’s residence permit failed. In 2018, the hospital order was extended by one more year. In its judgment, the criminal court stated that the hospital order was no longer necessary under normal circumstances because of the decreased risk of reoffending. However, the (threat of) deportation creates the risk of psychiatric deterioration, warranting the extension of the hospital order. Accordingly, the hospital order was extended twice after submitting the complaint to the European Court of Human Rights. In his complaint, the applicant argued that the revocation of his residence permit had violated Article 8 because his personal circumstances had insufficiently been taken into account in the domestic procedures.

Judgment of the Court

In its judgment, the Court summarises how the test of Article 8 ECHR in case concerning the revocation of a residence permit should be conducted. First it must, be established whether there is family and/or private life in the host state. The revocation of the residence of a migrant with lawful residence is considered to be an interference with Article 8. This interference can be justified, but this requires balancing the interests of the applicant and the host state. The criteria to be considered in this balancing exercise, outlined in Boultif v Switzerland, include the nature and seriousness of the criminal offence. In Savran v. Denmark, the Court adds that this criterion presupposes that the criminal court assesses whether the applicant has a mental illness and that this may limit the weight attached to the nature and seriousness of the criminal offence. In cases concerning foreigners who spent a significant part of their life in the host state, only very weighty reasons can justify expulsion. Applying this legal framework to the facts of the case, the Court concludes that the crimes committed by the applicant constitute a very serious reason to justify expulsion. However, in the decision to revoke the applicant’s residence permit, the domestic authorities had only considered the seriousness of the applicant’s crimes and had attached ‘decisive weight’ to that. Neither the administration nor the domestic court had taken the psychiatric condition of the applicant considered in determining the weight attached to the nature and seriousness of the committed crimes. The Court observes that the psychiatric treatment of the applicant was aimed at reintegration into Dutch society. At no stage during his treatment, the applicant was prepared to return to Morocco. Finally, the Court considers that the medical background of the applicant should also be taken into account in determining the extent to which it could be expected from the applicant to settle in Morocco and the difficulties that he would encounter there, considering his mental vulnerability. Accordingly, the Court holds unanimously that the Dutch authorities have violated Article 8 ECHR in revoking the applicant’s residence permit.

Role of mental state in the balancing of interests

The present judgment further clarifies mental health’s role in balancing interests under Article 8 ECHR in deportation cases. It was already clear from Savran v Denmark (see this blog post for a discussion) that the applicant’s mental state during the criminal offence should be considered when determining the weight attached to the nature and seriousness of the crime. Because it was apparent from the domestic proceedings in Denmark that this had not been the case, the Court found in Savran that this fell short of the requirements. Even though the Court explained that mental state potentially limits the weight that can be attached to the nature and seriousness of the crime, the extent to which this weight can be limited remained unclear in the Savran judgment. In Azzaqui, the Dutch criminal court held that the applicant had limited criminal culpability because of his mental condition. This shows that the committed crime was partially attributable to the applicant in the context of criminal law. Because in the Azzaqui judgment, the Court did not provide further guidance on this, it is uncertain how the extent of criminal culpability influences the weight attached to the nature and seriousness of the offence. Future jurisprudence must shed light on whether any weight can be attached to the nature and seriousness of the offence in cases in which the criminal court holds that there is no criminal culpability because the applicant was fully incapacitated at the moment of committing the offence. This point was previously raised in the dissent in Khan v Germany, in which Judge Zupančič argued that the Court incorrectly attached weight to the nature and seriousness of the offence because “according to the strict criminal law criteria, an insane person cannot commit a criminal act.”

Furthermore, it follows from the Azzaqui ruling that the applicant’s mental state should not only be considered when determining the nature and seriousness of the offence but also in determining the extent to which it can be expected from the applicant to resettle in the country of origin considering the difficulties the applicant would encounter there because of mental vulnerability. This is a new element in the Article 8 test, as the Court did not mention this in Savran. The present case is atypical in that the Dutch authorities did not consider the difficulties the applicant would encounter after deportation at all. The Court refutes the Netherlands for not considering the difficulties the applicant would encounter in Morocco but does not further specify which circumstances must be considered in taking these difficulties into account. In the present case, the Court attached weight to the fact that during the mental treatment of the applicant, the entire focus had been on reintegration into Dutch society and not on return to Morocco. Also, the applicant’s residence was revoked almost twenty years after the applicant was sentenced. Only after the criminal court had taken steps to prepare the applicant’s return to society, his residence permit was revoked. The Court judges that neither the difficulties in Morocco nor the circumstances of the applicant’s residence permit were considered.

Further guidance is needed on the weight that must be attached to the difficulties foreign nationals with mental conditions would experience upon returning to their country of nationality. This is also relevant for cases where the applicant was not criminally convicted. Deportation itself can trigger a deterioration of the mental state. There can furthermore be insecurities in the availability of psychiatric treatment or the conditions thereof. It would be helpful if the Court further specifies how the difficulties upon deportation must be balanced in subsequent jurisprudence concerning Article 8 ECHR. In Paposhvili, the Court has confirmed a rather strict position in Article 3 ECHR cases. But as Savran and Azzaqui clearly show that the Article 8 test is very different, more guidance from the Court on measuring the difficulties a person with a mental condition would encounter in the country of nationality would be helpful.

The practice of hospital orders in the Netherlands

Unfortunately, the present case does not stand alone. The imposition of hospital orders is standard practice, and the applicant’s mental state does not play any role in revoking residence permits. As was found by the criminal court in the present case, this puts foreign nationals in a deadlock situation. Currently, almost 130 foreigners reside in a psychiatric facility on a hospital order. The (pending) revocation of their residence permit limits how much they can effectively receive effective psychiatric treatment. The Azzaqui judgement makes it clear that reforms are required both in the hospital order practice and in how Article 8 ECHR is applied in domestic immigration law.

The Dutch Council for the Administration of Criminal Justice and Protection of Juveniles, an independent body that is tasked with ensuring that the government enforces sanctions and juvenile protection measures in a humane and legally correct manner, has issued a report on the lack of perspectives for foreign nationals sentenced with a hospital order. The Council observes that it is often practically impossible to return a foreign national with a hospital order whose residence permit is withdrawn for different reasons. Firstly, countries of nationality often do not have a similar arrangement like hospital orders in the Netherlands aimed at safely returning psychiatric patients to society. In some countries, psychiatric treatment is unavailable for certain mental illnesses. Because of that, hospital orders can often not be transferred to the country of nationality. Secondly, countries of origin and foreign nationals often do not cooperate with the responsible Dutch authorities in return procedures. For these reasons, foreign nationals with a hospital order are often unreturnable. At the same time, conditional release to Dutch society is not possible because there is no lawful residence and therefore, the social support required for reintegration into society is not available. This puts foreign nationals with a hospital order facing deportation in a hopeless situation with no or little perspective of reintegration in the Netherlands or the country of nationality. To break this status quo, among other recommendations, the Council advises refraining from revoking residence permits in cases where the foreign national was declared fully incapacitated during the offence because of a psychiatric condition. Furthermore, the Council recommends making it possible for foreign nationals with a hospital order to be conditionally released to achieve reintegration into society. The present judgment demonstrates that a fundamental reform of the hospital order for foreign nationals is necessary to ensure compliance with Article 8 ECHR.

Furthermore, the Azzaqui judgment should trigger an amendment of the way Article 8 ECHR is applied in Dutch immigration law. When a residence permit is withdrawn, compliance with Article 8 ECHR has to be tested ex officio. This is laid down in different levels of national regulation. In caseworker instructions, which are documents providing instructions to the Dutch immigration authorities on making administrative decisions, specific guidelines are provided for applying the various criteria in balancing competing interests. The instructions provide that the circumstances under which an offence is committed must be considered. Domestic judges are however reluctant to take mental illness into account as a factor that limits the weight attached to the nature and seriousness of the offence. This example shows that the caseworker instructions should reflect the way mental illness should be considered in the balancing exercise more precisely, making it clear that it is relevant both for the weight attached to the nature and seriousness of the offence as well as for the difficulties the applicant would encounter in the country of origin.