ECtHR decision in Paposhvili v. Belgium, Application No. 41738/10, 17 April 2014

Wednesday, April 23, 2014

The Applicant, a Georgian national, challenges the decision of the Belgian authorities to remove him to Georgia and ban him from re-entering Belgian territory. Arriving in Belgium in 1998 with his wife and one child, the couple had two more children by July 2006. Between 1998 and 2007, the Applicant was convicted of a number of criminal offences, including robbery. During custody for his convictions, he was diagnosed with chronic lymphocytic leukaemia and tuberculosis, for which he was treated in hospital. In August 2007, after several failed attempts to regularise his residence status on medical grounds, an expulsion order and entry ban were imposed on the Applicant on account of danger to public order. Medical treatment left the order unenforced, but in 2010 he was detained pending removal under a new order by the Aliens Office. His release was secured, and his removal postponed, following a Rule 39 Interim Measure. His wife and children have indefinite leave to remain in Belgium.

The Applicant submitted to the ECtHR that his removal would violate his rights under Articles 2 (right to life) and 3 (prohibition of ill-treatment) due to the unavailability in Georgia of the necessary treatment for his medical conditions. He also complained that his removal and 10 year entry ban would violate Article 8 (right to family life) due to the separation from his wife and children.

Following its’ previous judgments, the ECtHR 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’. The ECtHR noted that despite the Applicant having an incurable and fatal disease, he was fit to travel, faced no imminent threat to his life, had a brother and some land in Georgia, and would be able to access medical treatment in Georgia to stabilise his conditions. On this basis, the ECtHR ruled that his circumstances did not meet the high threshold required for his removal to violate Articles 2 or 3 on medical grounds.

On Article 8, the ECtHR highlighted the number and seriousness of the Applicant’s criminal convictions, the precariousness of family life due to the Applicant’s lack of a valid residence permit for the whole 15 years of his stay in Belgium, the tolerance of the Belgian authorities regarding the Applicant’s family and medical circumstances, his strong social and cultural ties with Georgia, his wife’s ability to care for the children on her own during the Applicant’s custody, and the right of his family to leave and return to Belgium freely. For these reasons, the ECtHR assessed Belgium’s refusal to regularise the Applicant’s stay as a proportionate interference with his family life.

Read the judgment (French only) of the ECtHR.

18 April 2014

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Family unity (right to)
Health (right to)