Expulsion of Severely Ill migrants: Beyond the Deathbed, Still Exceptional

By Eva Sevrin

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Over the next 10 days, Strasbourg Observers will be hosting a blog symposium on Article 3 ECHR and the forthcoming Chișinău Declaration on the ECtHR’s approach in migration cases. The symposium was convened by Natasa Mavronicola. It also features contributions from Mary Rogan, Rishika Sahgal, Eva Sevrin, and Elaine Webster.

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Introduction

Ama Sumani, a mother of two, was diagnosed in 2006 with multiple myeloma, a terminal cancer affecting bone marrow. Her condition required kidney dialysis. At the time, she was residing irregularly in the United Kingdom after overstaying her visa. Once deemed fit to travel, five immigration officers removed her from the hospital in a wheelchair and deported her to Ghana. Unable to access adequate care, she passed away shortly thereafter.

At the time, the chief executive of the Borders and Immigration Agency, stated that “repeated judicial rulings” had found that deporting those undergoing medical treatment did not amount to inhuman treatment. Two months later, the European Court of Human Rights (ECtHR) affirmed this approach in N. v. the United Kingdom. Like Ms. Sumani, Ms. N. died not long after deportation.

A decade later, Paposhvili v. Belgium marked a shift. The Grand Chamber held that expulsion of severely ill migrants is prohibited where there are substantial grounds for believing that a person “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.” (§183). This clarification would likely have prevented the deportation of Ms. Sumani or Ms. N.

While Paposhvili has been widely discussed, current political pressure on the Court puts it in the spotlight once again. Twenty-seven governments explicitly referenced the Court’s case law on non-refoulement in medical cases, suggesting that Article 3 has been stretched beyond “the most serious issues”. The CDDH outcome document, containing elements for the Chișinău Declaration, is defensive on the matter and emphasizes how exceptional it is for Article 3 to prevent the expulsion of seriously ill persons, noting that violations are only found rarely (§29). At the same time, the document proposes a normative push, stressing that an ‘exceptionality’ approach should be maintained (p. 10).

This post makes three claims. First, medical cases illustrate the Court’s cautious and incremental extension of non-refoulement principles. Second, even after Paposhvili, the threshold remains exceptionally high—and its legal basis remains unclear. The real evolution in the case law has not been from “high threshold” to “low threshold”, but from a near-death paradigm to a broader yet still demanding test. Third, the legal reasoning underpinning this high threshold remains conceptually unstable, reflecting an unresolved tension between competing approaches. I suggest that this tension can be better understood by drawing an analogy with the Court’s approach in the penal context, where a baseline of “inevitable suffering” is accepted.

From Deathbed Cases to Paposhvili

The Court first accepted that expelling a seriously ill person could violate Article 3 in D. v. the United Kingdom (1997). The applicant, a migrant from St Kitts without a residence permit, was convicted for drug charges. Suffering from the advanced stages of AIDS, the Court emphasized that expulsion would abruptly withdraw the care that sustained him, hastening death with the “most dramatic consequences” (§52). In such “exceptional circumstances”, the act of removal would violate Article 3 ECHR.

Subsequent case law applied this standard restrictively. Unless applicants were effectively dying, expulsion was permitted, even when removal would lead to rapid deterioration and premature death. Many applicants with serious illnesses, often HIV-related, were denied protection despite clear medical evidence that their life expectancy would be drastically reduced. I do not know what happened to the applicants in the judgments following D.: Mr. Arcila Henao, Mr. Bensaid, Mr. Amegnigan, Mr. Ndangoya, Ms. S.C.C. or Mr. Karara. The Court recognized that all of them were severely ill, just not in a terminal stage.

From the beginning, the Court stated that ‘other very exceptional cases’, next to the deathbed-approach, could halt expulsion. However,  N. v the United Kingdom did not elaborate on what such cases might be – reaffirming once again a threshold that would only be met in the most extreme cases. Although removal would significantly shorten Ms. N.’s life, the Grand Chamber maintained a “high threshold” (§43), accepting the consequences for her life expectancy and quality of life (§50).In contrast to a decision, on similar facts, of the Inter-American Commission two months later, the ECtHR did not consider whether the deportation would amount to a de facto death sentence (§91). The judgment in N was widely criticised, including by the dissenting judges who rejected the implicit reliance on policy concerns such as the “floodgates” argument.

Over time, this approach became increasingly difficult to sustain. Apart from the rare approach in Aswat (which foreshadowed Paposhvili), no violation was found. Separate opinions frequently accompanied cases (S.H.H.; Tatar), either criticizing the finding of a non-violation (S.H.H.; Tatar) or urging the national authorities to give a broader interpretation to humanitarian considerations (S.J.; Bensaid. Note that S.J. and her young children were eventually granted leave to remain by the Belgian authorities). Most famously, in Yoh-Ekale Mwanje, six out of the seven judges acknowledged that the extreme threshold was difficult to reconcile with the absolute nature of the prohibition of ill-treatment, and they called on the Court to reconsider its jurisprudence. But Judge Pinto De Albuquerque wrote perhaps the strongest j’accuse, reflecting on the human implications of the medical expulsions case law:

“When confronted with situations similar to that of N., the Court has reaffirmed its implacable position, feigning to ignore the fact that the Grand Chamber sent N. to her death. Too much time has elapsed since N.’s unnecessary premature death and the Court has not yet remedied the wrong done. I wonder how many N.s have been sent to death all over Europe during this period of time and how many more will have to endure the same fate until the “conscience of Europe” wakes up to this brutal reality and decides to change course.“

This culminated in Paposhvili v. Belgium(2016). The Court moved beyond the strict deathbed approach and clarified that “very exceptional cases” also include situations where removal would lead to a serious, rapid and irreversible decline in health, resulting in intense suffering or a significant reduction in life expectancy, when appropriate health care would not be accessible in the receiving country (§183). Importantly, this was not a radical lowering of the threshold (no other violations have been found by the ECtHR since), but it did oblige States to put detailed and appropriate procedures in place to ensure that expulsion would not expose the person to Article 3 risks.

Applying Article 3 ECHR and Non-Refoulement to Severely Ill Migrants

Despite the doctrinal development in Paposhvili, the threshold in medical expulsion cases remains exceptionally high. The Court itself continues to emphasize that only “very exceptional cases” engage Article 3. The slow and uneven development of the case law reflects a deeper conceptual tension. Two competing approaches seem to shape the Court’s reasoning.

The first frames medical expulsion as affecting the ‘obligation’ to help ‘the needy’. This approach invites considerations of proportionality and resource constraints (e.g. Bossuyt, p. 241). This is the language of positive obligations. The second approach, however, focuses on the expulsion itself as the harmful act. It frames the issue as a negative obligation and leaves generally no room for balancing or policy considerations.

Formally, the Strasbourg Court adopts the second approach in medical non-refoulement cases:

This is legally and logically consistent with the broader principles of Article 3, as States are generally prohibited from exposing someone to a real risk of inhuman or degrading treatment. As Mavronicola points out, non-refoulement is a specific application of this principle (p. 178). This focus on active exposure, as distinct from exposure by omission, means that “the source of the risk does nothing to alter the level of protection guaranteed by the Convention” (Tarakhel v. Switzerland §104). In other words, as the prohibition, a negative obligation, under Article 3 is absolute, the source of N. or Ama Sumani’s suffering (a severe illness rather than state acts) is legally irrelevant.

Still, elements of the first approach have seeped into the case law. In N., the Court invoked a “fair balance” between individual rights and community interests, quoting a discredited paragraph of the Soering judgment (§44 N.; §89 Soering). However, as the Court stated earlier in Saadi v. Italy, the interest to expel a migrant cannot be “weighed against the interests of the community as a whole” (§138), due to the absolute nature of Article 3 ECHR. As Judge Zupančič stated, allowing balancing in Article 3 – only for non-refoulement matters – would mean that there are individuals that “do not deserve human rights … because they are less human”.

Paposhvili leaves the fair balance test behind. However, the Court still emphasizes that only in “very exceptional cases” will the removal of a seriously ill person raise an Article 3 issue, which “correspond to a high threshold” (§183). As Stoyanova points out, “if the principle of non-refoulement sets in motion negative obligations, … the retention of the exceptionality test when the prospective harm has natural origins leads to a paradox” (p. 585).  The tension between the two approaches thus remains unresolved.

Rethinking Exceptional Circumstances: The Penal Analogy

At its best, this inconsistent reasoning is ill-fitting, using legally uncomfortable legal arguments to justify a very high threshold. At its worst, however, this combined approach creates the kind of muddy unclarity that becomes an easy argument  for governments who claim to be under impossible Strasbourg obligations. In the CDDH outcome document, the discredited ‘fair balance’ approach from Soering is quoted (§7), as if all Convention articles can be restricted (and not only the ones that include this option explicitly).

But why should medical expulsion cases be exceptional at all? If non-refoulement reflects a negative obligation, the continued reliance on exceptionality is difficult to justify. To me, it suggests that some level of suffering caused by expulsion is considered acceptable by the Court.

I think that the Court’s approach in migration cases could be explained within the framework of negative obligations, by placing it in analogy to its case law on the penal context. There, the Court accepts that lawful punishment inevitably involves suffering. Article 3 is only violated when that suffering goes beyond the “inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment” (e.g. A. and Others § 127). The suffering or harm exists, but it is deemed not to be wrongly inflicted. 

The Court appears to adopt a similar logic in medical expulsion cases. It implicitly accepts that expulsion can entail hardship (social, economic, …) and only intervenes when suffering goes beyond what is considered inevitable. The ‘exceptionality’ threshold thus functions as a filter distinguishing acceptable from unacceptable suffering. This explains why Savran’s expulsion was not degrading under Article 3, but disproportionate nonetheless under Article 8 ECHR: the deportation (and its effects) would not be degrading in itself, but still the type of harm that outweighed the policy aim.

This analogy helps to explain the Court’s case law, but it also raises concerns. First of all, unlike in the penal context, this principle is not made explicit. It just seems to assume that there is a level of acceptable harm. As Mavronicola points out in the penal context, a ‘legitimacy loop’ risks arising: the threshold of acceptable suffering is affected by what we accept to be acceptable (p. 114). This serves to normalize the harm following expulsion, as well as shape the threshold of what is ‘acceptable’ in a completely opaque manner. Without a clearer articulation of what constitutes ‘inevitable suffering in expulsion’ the concept of exceptionality remains unstable and open to political pressure.

Conclusion

Contrary to political claims, Strasbourg has not dramatically expanded protection. Instead, it has cautiously extended Article 3 to cover a narrow category of cases involving a serious decline in health accompanied by severe suffering or a shortened lifespan. The persistence of the ‘exceptionality’ requirement reveals that State concerns have seeped into the case law already.

This raises the question what States are after when they imply that the medical expulsion cases should be interpreted more strictly. Do they want to go back to a time where they could send persons like Ama Sumani to their death without the teeth of human rights law dragging them down? Or is the goal to bring balancing into Article 3 ECHR, threatening its absolute nature, and are the current legal inconsistencies in the medical case law a fertile ground for this endeavour?