Dilemma of sick irregular migrant

Dear Readers,

In this edition of The African Bulletin, I write about one of the toughest dilemmas in migration law. What to do with irregular migrants who get very ill during their irregular stay? Can they be expelled to their country of origin, even if the migrant fears that he will not get the medical treatment that keeps him alive there? Should they get some kind of status?

The dilemma

In international law, it is fully accepted that states are entitled to control the entry, residence and expulsion of migrants. Nevertheless the expulsion of a gravely ill irregular migrant might be considered so inhumane that it is not legitimate anymore.  Obviously, anyone, including an irregular migrant, has a huge personal interest in receiving state of the art medical treatment. Medical treatment is very expensive and the availability of it is not unlimited so, states have a similarly huge interest in not having to pay for treatment for irregular migrants.

No civilized state considers it acceptable that human beings must suffer an inhumane treatment but when is such the case and against what costs? The question has been asked many times before.

The answer?

On 13 December 2016, the Grand Chamber of The European Court for Human Rights (ECHR) in France gave a judgment in the case of Mr. Paposhvili versus Belgium. This judgment is binding to many countries around the world and certainly all countries that are part of the European Union.

The ECHR gives a clear description of the path to the answer. Bear in mind that the judgment (and this article) is only relevant for those who are gravely ill and would suffer an inhumane treatment after expulsion. Being ill in itself is no ground on which one can claim any residential status.

What did the court say?

It started with the remark that under international law it is fully accepted that states are entitled to control the entry, residence and expulsion of migrants. That is the basis and we must keep that in mind to avoid creating unrealistic hope.

Expulsion of an irregular migrant might be illegitimate if that person faces a real risk of being subjected to an inhumane treatment. Also it must be clear that the treatment must reach a level of severity before it has to be considered inhumane.

The suffering as a result of a disease in itself is not a treatment but when the (risk of) suffering is being increased by measures like detention and expulsion and a lack of access to medical treatment afterwards; it might become a case of inhumane treatment.

For the treatment to be considered inhumane, in spite of the general principle that a state is entitled to expel irregular migrants, there must be in the individual case very exceptional circumstances that lead to that conclusion. It is the person concerned who has to provide arguments and evidence for that and that is not easily done.

The fact that the medical treatment in the country of origin is less good or the person’s life expectancy would be reduced, are no very exceptional circumstances in itself. For that was up to now assumed that it is required that death after expulsion is imminent. However there were also other very exceptional circumstances that could lead to the conclusion that expulsion as treatment could be inhumane. Problem was that it was not clear what the other very exceptional circumstances where.

In the judgment the court clarified this and it appears to me that the result of this will be a more humane treatment of gravely ill irregular migrants.

The court describes it in its consideration 183 in a beautiful and clear manner so I will mainly quote the courts judgment. Seriously ill irregular migrants under inhumane treatment should be understood as situations involving the removal of a seriously ill person in which substantial grounds has been shown for believing that he or she , although not at imminent risk of dying, 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. The court also points out that there will be a high threshold before it is concluded that this situation is applicable.

What will this judgment mean for those concerned?

How this judgment will be implemented and how the seriously ill will benefit from this judgment will become clear coming year. One thing that is clear that the Immigration Authority must find a new assessment framework for judging applications for a waiver of the pending expulsion since the judgment requires this.

In the past, seriously ill people who asked for a temporary permission to stay in the country, could be denied on the basis that in spite of their illness being indeed very serious, the required medical treatment was theoretically and technically available in the country of origin and that the question whether they personally would be able to get access to the treatment was not relevant.

That assessment framework is not valid anymore because the court ruled that a lack of access to that treatment is a possible ground for the conclusion that there is a case of inhumane treatment.

What to do?

Those irregular migrants who are often seriously ill have applied for some kind of status or a waiver of their expulsion before. Mostly without success because the required medical treatment was theoretically and technically available. Those people and of course those who have not applied before should apply or apply again because the assessment framework have changed and therefore the possible outcome of their procedure. Again, bear in mind, this application is only meant for those who are very ill and have arguments and evidence to prove the reality of their fear for expulsion to their country of origin. It is therefore important that one is well informed before such an application is filed.

Where to get information?

For information, I always advise to go directly to the source so read the judgment of the court. It is a beautiful legal document and is very readable. Seek for the case of Paposhvili versus Belgium or follow the link http://hudoc.echr.coe.int/eng#{“itemid”:[“001-169662”]}.

On whether this judgment is applicable to your situation, make contact with Het Juridisch Loket for advice at www.juridischloket.nl and call for advise and if needed an appointment. The people from Het Loket are helpful and give good advice. If after gathering information you want to visit a lawyer for the procedure, make sure your lawyer is specialised in migration law.

What to do when you want to visit our office? 

If you have a case concerning immigration law or you are in immigration detention, we are able to support you. Our office specialises in immigration law but cooperates with other specialised lawyers if you have a problem that does not involve migration law.

Readers who are in need of legal support are welcome to visit our office for a free consultation. Have a look at our web-site www.skv-advocatenkantoor.nl and from 01 march 2017 www.advocatenkantoorkleijweg.nl to learn more about our office.

Readers are welcome to visit our office but of course, only after an appointment. For an appointment please call our secretary on 070 317 7700.

When you come to the appointment please bring all available information about your personal situation with you. Keep in mind that you cannot give too much information. Only on the basis of the information you provide can we judge the case and make good use of the time.

*A.G. Kleijweg, Advocatenkantoor Kleijweg, Koninginnegracht 22 A, 2514 AB Den Haag

Tel: +31 (70) 317 7700 / www.advocatenkantooorkleijweg.nl / mail@advocatenkantoorkleijweg.nl