The protection of seriously ill migrants and the "unfortunate principle" of N. v. the United Kingdom

In a notable dissenting opinion in today's European Court of Human Rights judgment in the case of S.J. v. Belgium (Application no. 70055/10), Judge Pinto de Albuquerque has spoken out strongly on the protection of the human rights of seriously ill migrants in Europe and the "unfortunate principle" set out in the case of N. v. the United Kingdom (Application no. 26565/05).

The case of S.J. v. Belgium concerned the threatened expulsion from Belgium of a Nigerian mother suffering from AIDS, and was struck out after the Court received a proposal for a "friendly settlement" from the Belgian government, which the applicant accepted subject to the condition that she and her three children be granted unconditional and indefinite leave to remain.

In the earlier 2008 case of N. v. the UK, the Court ruled that the expulsion of a HIV-positive woman to Uganda would not cause a violation of Article 3.

Judge Pinto de Albuquerque said the striking out in today's judgment was a missed opportunity to depart from the "unfortunate principle" set out in N.

He wrote: "Six years have passed since the N. judgment. 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."

"Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible."

It's an important read so we've excerpted and reproduced Judge Pinto de Albuquerque's opinion in full below:

DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1. I subscribed to the separate opinion of Judges Tulkens, Jočienė, Popović, Karakaş and Raimondi in Yoh-Ekale Mwanje v. Belgium [1] , in which we called on the European Court of Human Rights ("the Court") to reconsider the unfortunate principle set out in N. v. the United Kingdom [2] . In so doing, we followed Judges Tulkens, Bonello and Spielmann, the dissenters in the case of N. I am still of the same view today and that is why I dissent. I believe that this case was a good opportunity to depart from N. and therefore should not have been struck out. The continuation of the examination of the application, in accordance with Article 37 § 1, second paragraph, of the European Convention on Human Rights ("the Convention"), was necessary for the sake of decent protection of the human rights of seriously ill persons in Europe [3].

The principle of the "very exceptional" protection of seriously ill illegal aliens

2. In N., the majority of the Grand Chamber established that "[a]liens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling." [4]

The majority went even further and extrapolated a general principle from the situation relating to the expulsion of a person with a HIV and AIDS-related condition: "The same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost."

Finding that this "high threshold" should be applied to N., who "was fit to travel", the Court agreed to her removal from the Contracting State in spite of her poor state of health and the doubts about the possibility of her obtaining the appropriate health care in the receiving State. Unsurprisingly, N. died shortly after her removal to Uganda [5].

3. Recently, the Court's case-law was replicated by the Luxembourg Court of Justice ("ECJ"), in the Grand Chamber judgment delivered in Mohamed M'Bodj v Belgian State: "None the less, the fact that a third country national suffering from a serious illness may not, under Article 3 ECHR as interpreted by the European Court of Human Rights, in highly exceptional cases, be removed to a country in which appropriate treatment is not available does not mean that that person should be granted leave to reside in a Member State by way of subsidiary protection under Directive 2004/83. In the light of the foregoing, Article 15(b) of Directive 2004/83 must be interpreted as meaning that serious harm, as defined by the directive, does not cover a situation in which inhuman or degrading treatment, such as that referred to by the legislation at issue in the main proceedings, to which an applicant suffering from a serious illness may be subjected if returned to his country of origin, is the result of the fact that appropriate treatment is not available in that country, unless such an applicant is intentionally deprived of health care."

Stretching this reasoning to its limits, the Luxembourg Court left no margin of discretion to Member States to extend the applicability of subsidiary protection to seriously ill foreign nationals: "The reservation set out in Article 3 of Directive 2004/83 precludes a Member State from introducing or retaining provisions granting the subsidiary protection status provided for in the directive to a third country national suffering from a serious illness on the ground that there is a risk that that person's health will deteriorate as a result of the fact that adequate treatment is not available in his country of origin, as such provisions are incompatible with the directive." [6]

4. Having taken this extremely restrictive approach to the scope of substantive protection under the "Qualification" Directive, the Luxembourg Court, in another judgment delivered on the very same day, adopted a markedly broad interpretation of Articles 5 and 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, taken in conjunction with Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union and Article 14(1)(b) of that Directive. In Centre public d'action sociale d'Ottignies-Louvain-La-Neuve v Moussa Abdida, it criticised national legislation that did not endow with suspensive effect an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State, where the enforcement of that decision might expose that third country national to a serious risk of grave and irreversible deterioration in his state of health, and did not make provision, in so far as possible, for the basic needs of such a third country national to be met, in order to ensure that emergency health care and essential treatment of illness were in fact made available during the period in which that Member State was required to postpone removal of the third country national following the lodging of the appeal [7].

The fact that the dates of delivery of the judgments in M'Bodj and Abdida coincided is certainly no accident, and may have been intended to give a balanced image of the Luxembourg Court's case-law. If that was the intention, it failed. The opposite happened. In fact, the coincidence only highlights the unbalanced nature of the rulings delivered. Firstly, the two judgments demonstrate a contradictory approach to the issue of the protection of seriously ill foreign nationals, by providing them with reasonable procedural guarantees and at the same time depriving them of the most elementary substantive guarantees. The positive obligation set out in paragraphs 59 and 61 of the Abdida judgment is hardly compatible with the rejection of that same positive obligation in paragraph 39 of the M'Bodj judgment. Secondly, the M'Bodj judgment affords legally resident foreign nationals a lesser standard of protection in terms of health care than that afforded by the Abdida judgment to those who are illegally resident, since pending an appeal against a return decision whose enforcement may expose them to a serious risk of grave and irreversible deterioration in their state of health, the latter must be able to avail themselves, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter; in addition, they enjoy "emergency health care and essential treatment of illness" during that period.

5. In sum, the contradictory approach of the Luxembourg Court reflects the current contradiction in the Strasbourg Court's case-law itself, which has simultaneously sustained an unreasonably restrictive interpretation of the Article 3 substantive guarantee, in N. v. the United Kingdom, and a reasonably broad procedural interpretation of the right to an effective remedy for asylum seekers in Hirsi Jamaa and Others v. Italy and, less clearly, for undocumented migrants in De Souza Ribeiro v. France [8] . The messy state of the European case-law, with its flagrant internal contradictions, makes it even more urgent to review the standard set out in N. in the light of international refugee law and international migration law.

Critique of N.

6. According to N., illegally resident foreigners do not benefit from Convention protection, namely from any positive obligation on the part of the State to guarantee the health treatment necessary for a life-threatening or serious illness, when the foreseeable Article 3 violation stems from a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country. This principle does not stand up to closer scrutiny [9].

7. Firstly, it clearly distorts the reasoning behind Article 3 of the Convention, by watering down the legal force of that provision on the basis of purely speculative assumptions regarding both the future care and support that seriously ill persons will receive from the national authorities in the receiving State and the economic burden they represent for the Contracting Parties to the ECHR.

The ground put forward by the majority to deny a positive obligation for the State to treat seriously ill foreign nationals is purely axiomatic. It does not provide any rational justification for the lesser protection given to them other than an aprioristic view that no positive obligations are to be derived from Article 3 in relation to them. Put differently, paragraph 43 of the N. judgment reveals nothing but a circular reasoning whose ultimate purpose is explained in the following paragraph. The purpose of this reasoning is, as the majority of the Grand Chamber explicitly acknowledges in the subsequent paragraph 44, to avoid a supposedly uncontrollable massive influx of medical migrants towards the Contracting Parties to the Convention, with its allegedly exponential financial cost [10]. This is a typical argumentum ad consequentiam, which considers that the disadvantages of a course of action based on a certain legal solution outweigh its advantages. The fallacy is presented in its worst version, the argumentum ad terrorem, which invokes the supposedly (but not proven) catastrophic consequences of adopting a particular legal solution.

8. Furthermore, N. lacks any clear legal criteria for deciding when a terminally ill person may or may not be removed, either in terms of the degree of seriousness of the illness (what is a "critically ill" person?) or in terms of the quality, accessibility and cost of the treatment provided in the receiving State (what are the required minimum standards which should be accepted by the Court in this regard?). For example, the majority refrains from saying that, in the case of AIDS patients, antiretroviral treatment can be likened to a life-support machine and that terminating it in the receiving State would be tantamount to having a life-support machine turned off and therefore to a breach of Article 3. Instead, the majority focuses on "fitness to travel" as the ultimate, practical criterion for deciding who is to be removed!

9. As a matter of fact the majority of the Grand Chamber considers, in N., that the uncertainty about the specific features of the health care available in the receiving State operates against the applicant. The elliptical sentence contained in paragraph 50 of N. is quite telling, if one reads between the lines: "The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and Aids worldwide." This argumentum ad ignorantiam not only contradicts a basic tenet of legal reasoning, according to which one should not draw conclusions from a lack of information or incomplete or insufficient sources of information [11]. Worse still, the majority is ready to exchange the available scientific treatment of a fatal disease like HIV in the removing country for faith in uncertain scientific developments that might one day eventually also reach the receiving country. Worst of all, the majority surreptitiously imposes on the applicant an untenable burden of proof. Since Soering, mere uncertainty about the possibility of ill-treatment in the receiving State bars removal from any Contracting Party to the ECHR, precisely because the implementation of the removal measure could lead to prohibited ill-treatment [12]. It is up to the removing State to ensure that the removal measure will not put the removed person's Article 2 and 3 rights in danger, if necessary by obtaining valid international assurances, and to provide that evidence to the Court [13]. Implicitly, in N., the majority departs from this wise rule of evidence by relieving the Government of the burden to provide similar assurances that the removed seriously ill person will not be subjected to any form of prohibited ill-treatment, by action or omission, and by imposing on the applicant the burden of providing evidence, without any margin for "speculation", that he or she will face such prohibited ill-treatment or even death in the receiving State in view of the deficiencies of its health system. This hidden reversal of the burden of proof is not acceptable, for the reasons mentioned above.

10. In addition, by introducing considerations of "compassion" or "sympathy" in place of rights-based arguments, the Court leaves unfettered discretion to Governments to do as they please with costly and undesirable sick people. In fact, in its opaque language, the N. judgment betrays the real concern of the majority, which is to reverse the approach taken in Airey v. Ireland [14] . The worrying policy considerations set out by the majority, which are aimed at downplaying the importance of the social or economic implications of the protection of civil and political rights, are particularly misplaced in view of the absolute character of the prohibition of ill-treatment in the Convention system. Legal reasoning is abandoned in favour of politics. The protection of the right to life and the right to physical integrity is no longer the subject of a State obligation, but of a more or less obscure policy of mercy which may vary in each State according to the political sensitivity of the Government in power.

11. Finally, N. was rejected in no uncertain terms by the Inter-American Commission of Human Rights ("IACHR") in the case of Andrea Mortlock v. the United States, in which it opposed the expulsion from the US of a Jamaican with AIDS whose state of health was stable but whose removal would have led to a premature death: "... stopping the treatment would lead to a revival of the symptoms and an earlier death. Therefore, even though the risk of death may not be so imminent [as in the ECtHR D. v. UK case] in the case of Ms. Mortlock, the effects of terminating the antiretroviral treatment may well be fatal" [15]. In blunt terms, the European standard of human rights protection is today well below the American one.

Conclusion

12. Six years have passed since the N. judgment. 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.

Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.

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[15] IACHR, 25 July 2008, Andrea Mortlock v. United States, Case 12.534, § 90.