In a unanimous judgment, the Grand Chamber of the European Court of Human Rights (ECtHR) departed from its previously restrictive case-law on violations of Article 3 (prohibition of torture) of the European Convention on Human Rights (the Convention) concerning the expulsion of migrants with serious illnesses. The ECtHR found that there would have been a violation of Article 3 if Belgium expelled the applicant without assessing the risk he faced given the information that the authorities had concerning his health, and the existence of appropriate treatment in Georgia. It further held that Article 8 would have been violated if Belgium expelled the applicant without assessing the impact of his return on the guarantee of respect for family life, considering the applicant’s condition.
By way of background the applicant was a Georgian national in Belgium. He became seriously ill with leukaemia, but was in a stable condition because of treatment received in Belgium. He made several requests for regularisation on medical grounds, but an order was made for him to leave the country. The applicant argued that his expulsion would lead to the risk of inhuman treatment and an accelerated death due to his medical treatment being withdrawn. He died in June 2016 while the case was pending before the Grand Chamber but it was held that in the circumstances, the case should not be struck out.
The ECtHR acknowledged that while the applicant had a fatal illness, his condition was stable. In line with Convention case-law, it was emphasised that instances where the removal of a seriously ill applicant to a country with inferior medical treatment could raise an Article 3 issue were exceptional. However, the ECtHR cited its earlier position, which restricted the application of Article 3 to those close to death, as depriving applicants whose conditions were less critical. It was held that the high threshold for the application of Article 3 was met as there was a real risk of the applicant being exposed to serious and irreversible decline, resulting in intense suffering and significant reduction in life expectancy because of the absence of appropriate treatment in the receiving country.
The ECtHR set out a range of procedural duties for domestic authorities to carry out in order to prevent applicants being exposed to treatment contrary to Article 3. This includes taking account of the accessibility of treatment in the receiving country, the alleged risk of ill-treatment and the costs of treatment. Its judgment emphasised that where, in light of this examination, serious doubts persist as to the impact of removal on the person concerned, the returning State must receive assurances from the receiving State that appropriate treatment is available and accessible, so as to prevent Article 3 violations.
Click here for the full judgment in Paposhvili v Belgium.
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