Returning persons with a medical condition to their home country: still a contentious issue

Deportation of persons with a medical condition: the Dutch National ombudsman criticizes the immigration authorities of the Netherlands for an insufficiently clear evaluation of the medical resources available in the country of origin. At the same time, Judge Pinto de Albuquerque points to the meager guidance of the European Court of Human Rights in that respect in his dissenting opinion to the recent case of S. J. v Belgium.

Veronika Flegar, University of Groningen

Recently, the Dutch National ombudsman reproved the Dutch Immigration and Naturalization Service for not evaluating critically enough whether there are sufficient medical resources available in the country of origin before a person with a medical condition is deported. This is a very remarkable statement, especially in light of the dissenting opinion of Judge Pinto de Albuquerque in the recent case of S. J. v Belgium of the European Court of Human Rights (ECtHR). What are a state’s legal obligations for persons with a medical condition who are to be send back to their country of origin?

The International Convention Relating to the Status of Refugees is silent on this matter and, under Article 1(A)(2) only considers the fear of persecution on the basis of race, nationality, political opinion, religion or membership to a particular social group to be ‘sufficiently severe’ to not return someone to his/her country of origin. However, the so-called non-refoulement principle of international human rights law is a lot broader and less clearly defined in this respect: according to Article 7 of the International Covenant on Civil and Political Rights, Article 3 of the United Nations Convention Against Torture and Article 3 of the European Convention of Human Rights (ECHR), persons are not to be returned to their country of origin if they would fear torture or inhuman or degrading treatment upon their return.

This is why the ECtHR has ruled on persons with a medical condition who were to be returned to their country of origin in several cases under Article 3 ECHR. The two most famous cases are the cases of D v UK and the case of N v UK. D was a HIV/AIDS patient whom the ECtHR found to be in very exceptional circumstances due to the terminal stage of his illness. For this reason the ECtHR ruled that he could not be send back to his country of origin, St. Kitts. N, on the other hand, was suffering from HIV/AIDS in a less terminal stage of the disease. This led the ECtHR to conclude that, contrary to D, N could still be sent back to Uganda. What remains unclear are issues such as why exactly the condition of N was less terminal than the condition of D as well as the standard on the basis of which the ECtHR takes into consideration the access to medical treatment in the country of origin and what exact medical treatment should be available. This is why the case of N v UK has been met with fierce criticism from legal scholars (see, for instance, Virginia Mantouvalou, N v UK: No duty to rescue the nearby needy?).

As the dissenting opinion of Judge Pinto de Albuquerque in S. J. v Belgium shows, judges of the ECtHR also seem to have come to the realization that the N v UK standard is rather questionable. Although the case of S. J. v Belgium was struck out of the list because Belgium agreed to not return the applicant, the dissenting opinion of Judge Pinto de Albuquerque offers a compassionate insight into this topic in the concluding paragraph of his dissenting opinion: “Too much time has elapsed since N.’s unnecessary premature death and the Court has not yet remedied the wrong done. […] 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.” In paragraph 9 of his dissenting opinion he therefore argues that ruling in the case of N despite the acknowledgement of a certain degree of speculation with regard to the deterioration of her condition and the treatment available “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. 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.” According to Judge Pinto de Albuquerque, the burden of proof does not lie with the applicant but rather with the state wanting to return the applicant and the “hidden reversal of the burden of proof” in N v UK and subsequent cases is therefore unacceptable. However, as Judge Pinto de Albuquerque points out in his reference to “a more or less obscure policy of mercy” in paragraph 10 of his dissenting opinion, even if the burden of proof is upon the returning country, this does still not guarantee legal certainty and a fair procedure.

This is exactly what has also recently been criticized by the National Ombudsman of the Netherlands. Under Article 64 of the Aliens Act 2000, the Netherlands allow for a three-month suspension of the deportation if it would be irresponsible to travel due to the medical circumstances of the person concerned. This article has been known to be the last resort for many rejected-asylum seekers who fear to be returned to their home country. However, the National Ombudsman of the Netherlands has now concluded that the Dutch immigration authorities are not critical enough in evaluating whether there is sufficient ‘medically necessary care’ available in the country of origin. The ombudsman advises to be more critical about the doctors and the organization International SOS who are providing information about the situation in the country of origin. The Dutch immigration authorities should therefore actively check and assess the information provided and, if necessary, conduct additional research. Yet, how do you check and assess this information without clear guidelines?

All in all, it seems still unclear what the exact guidelines for the return of persons with a medical condition are. Both the case law of the ECtHR and the recent criticism of the National Ombudsman of the Netherlands show that there is need for more guidelines on how to determine the sufficient level of medical care available and the level of severity of a medical condition that would suspend deportation. Only if clear standards are established on these matters will it be possible to assess whether someone would truly suffer inhuman or degrading treatment upon return. Without sufficient legal rules and safeguards on this issue, we are most likely to remain in the loop of N v UK for much longer and, in the words of Judge Pinto de Albuquerque, European states will most likely send many more of “these women and men to a certain, early and painful death alone and far away”.

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