ECtHR decision in Josef v. Belgium, Application No. 70055/10, 27 February 2014

Monday, March 3, 2014

(An analysis of a January 2014 judgment of the Belgian Constitutional Court concerning the 'extreme urgency procedure' is available in the EDAL Journal section.

This case concerns the proposed return of a mother with HIV and her three children to Nigeria. Finding that the relevant medication would be available to the Applicant in Nigeria, the Belgian Aliens Office refused her asylum application and the family were ordered to leave Belgium. Her appeals were rejected by the Aliens Appeals Board and the Conseil d’État, but a Rule 39 Interim Measure of the ECtHR asked the Belgian authorities to refrain from removing the Applicant until proceedings are concluded. In 2012 the Applicant had her third child. She submitted to the ECtHR that her family’s return to Nigeria would be a violation of Article 3 (prohibition of inhuman treatment). In addition, she alleged violations of Article 8 (right to family life) and 13 (right to an effective remedy) ECHR.

Article 13

The Court ruled that the family did not have an effective opportunity to challenge their removal. The Court concludes that Belgian law fails to enable people to appeal against their deportation with ‘automatic suspensive effect’, which would allow a judicial authority to submit the merits of the appeal to a thorough and rigorous review prior to removal. Under Belgian law an ‘annulment appeal’ against an expulsion order has no suspensive effect, nor does an ordinary ‘suspension appeal’. Only an appeal for suspension under the 'extreme urgency procedure' has automatic suspensive effect. Such an appeal can only be issued where expulsion is imminent and where the applicant is in detention, according to the jurisprudence of the Belgian Appeal Court. Moreover, the ‘extreme urgency procedure’ cannot be launched in the absence of an ordinary suspension appeal.

The Belgian appeal process against deportation is, according to the Court, too complex and difficult to understand, even, as in this case, with the benefit of specialist legal assistance. Given this complexity, coupled with the limited application of the ‘extreme urgency procedure’, the Court concluded that Belgium fails to comply with Article 13, which requires the right to an effective remedy to be available and accessible in practice. The Court chose to exercise the power to make recommendations under Article 46 ECHR to urge Belgium to amend its domestic law in order to ensure access to an effective remedy with automatic suspensive effect, and one which is not conditional on the prior lodging of another appeal.

Article 3

The HIV-positive mother had submitted that the necessary medical treatment she requires could not be provided to her in Nigeria, thereby placing her at risk of physical and moral suffering contrary to Article 3.

Following its’ previous judgments, the Court held that an Article 3 issue is only raised by treatment facilities in the country of origin ‘in a very exceptional case, where the humanitarian grounds against the removal are compelling’. It is not enough to say that the facilities in the country of origin are inferior to those in the state from which the patient is to be removed, nor is it sufficient to prove that return would cause a ‘significant reduction in life expectancy’. Notwithstanding the acknowledged absence of free treatment against AIDs for a majority of people in Nigeria, and her three dependent children who will witness her deterioration, a majority of the Court concluded that the mother is not in a ‘critical condition’ and therefore her removal to Nigeria is not prohibited by Article 3.

One dissenting judge could not agree with the majority’s decision, given that it would ‘almost certainly lead to the imminent death of the Applicant’.

Article 8

The Court rejected the Applicant’s claim that return to Nigeria would breach her right to family life on the basis that she could not have had any legitimate expectation of an eventual right of residence in Belgium. In addition, the young age of the three children means they have enough adaptive capacity to resettle in Nigeria. Most significantly, the Court noted that the family would remain together if removed.

Read the judgment (French only) of the European Court of Human Rights.

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Effective remedy (right to)
Family unity (right to)
Health (right to)
Inhuman or degrading treatment or punishment
Right to remain pending a decision (Suspensive effect)