CJEU - Case C‑542/13 Mohamed M’Bodj v État belge, 18 December 2014

Date: 
Tuesday, January 6, 2015

Facts of the case: Mr M’Bodj, a Mauritanian national, was granted a residence permit in Belgium for medical reasons (a major eye disability), on the basis that his removal to Mauritania would subject him to a real risk of inhuman or degrading treatment due to the lack of adequate medical treatment. Under Belgian law transposing the Qualification Directive, he had been granted neither refugee status nor subsidiary protection, and subsequently denied income allowance and income support. Domestic litigation concerning Mr M’Bodj’s entitlement under EU law to such an allowance reached the Belgian Constitutional Court, which referred two questions to the CJEU.

Questions referred for a preliminary ruling

1. Must Articles 2(e) and (f), 15, 18, 28 and 29 of [the Qualification Directive] be interpreted as meaning that not only a person who has been granted, at his request, subsidiary protection status by an independent authority of the Member State must be entitled to benefit from the social welfare and health care referred to in Articles 28 and 29 of that directive, but also a foreign national who has been authorised by an administrative authority of a Member State to reside in the territory of that Member State and who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment in the case where there is no appropriate treatment in his country of origin or in the country in which he resides?

2. If the answer to the first question is that the two categories of persons who are there described must be capable of benefiting from the social welfare and health care referred to therein, must Articles 20(3), 28(2) and 29(2) of [the Qualification Directive] be interpreted as meaning that the obligation imposed on Member States to take into account the specific situation of vulnerable persons such as disabled people implies that the latter must be granted the allowances provided for by the Law of 27 February 1987 concerning allowances for disabled people, in view of the fact that social assistance which takes account of the handicap may be granted pursuant to the Basic Law of 8 July 1976 on public social welfare centres?

Consideration of the questions referred

In its assessment of the first question, which raises eligibility for subsidiary protection status, the Court notes that a third country national with a deteriorating state of health, which is not the result of an intentional deprivation of health care, is not covered by 15(a) and (c) of the Qualification Directive[31].  Nor would this person be covered by Article 15(b) of said Directive for several reasons. Firstly, because the inhumane or degrading treatment specified in 15 (b) is only applicable where it occurs in the applicants country of origin [33]. Secondly, in light of Article 6 of the Qualification Directive serious harm is inflicted by a third party and cannot therefore simply be the result of general shortcomings in the health system of the country of origin.According to the Court this is further clarified in the Recitals whereby an intentional deprivation of health care by a third party is required for the person to be granted subsidiary protection [35-37]. Thirdly, the Court submits that whilst the ECtHR jurisprudence points towards a violation of Article 3 if a person suffering from a serious illness were to be removed to a country where facilities for the illness were inferior to the hosting State (N v UK), this does not mean that that person should be granted leave to reside in a Member State by way of subsidiary protection under the QD [39-40].

In light of the Courts’ submissions that an applicant suffering from a serious illness cannot fall under 15(b), unless the applicant is intentionally deprived of health care in his country of origin, the Court further advances that Article 3 of the QD, allowing Member States to introduce or retain more favourable standards for persons who qualify for subsidiary protection, does also not apply to such an applicant [42-43]. The Court, thus, surmises that the legislation referred to by the Belgian State cannot be regarded, for the purpose of Article 3 QD, as introducing a more favourable standard for determining who is eligible for subsidiary protection. Third country nationals granted leave to reside under such legislation are not, therefore, persons with subsidiary protection status to whom social welfare and health care would apply [46].

Finding there no need to address the second question the Court concludes that the Qualification Directive does not require Member States to grant social welfare and health care benefitswhere national legislation has granted leave to remain to an applicant who suffers from a serious illness and where the nationals country of origin cannot provide appropriate treatment, provided that the national has not been intentionally deprived of health care in that country.


19 December 2014                                      

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Keywords: 
Health (right to)
Humanitarian considerations
Protection
Reception conditions
Serious harm
Torture
Vulnerable person
Tags: 
CJEU