Insights from the OHCHR Expert Meeting on Non-Refoulement in International Human Rights Law

By Veronika Flegar, University of Groningen, v.l.b.flegar(at)rug.nl

On 2 June 2016, the Office of the High Commissioner for Human Rights (OHCHR) organized an expert meeting titled “Non-refoulement in International Human Rights Law” in Geneva. During the meeting, representatives from academia, the International Organization for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR), OHCHR, the EU Fundamental Rights Agency (FRA), the United Nations Children’s Fund (UNICEF), human rights treaty bodies and courts as well as members of non-governmental organizations voiced their ideas on this matter. The meeting aimed to clarify the scope and future of the principle of non-refoulement as well as to highlight possible legal and policy avenues and challenges. One of our GHLG members, Veronika Flegar was invited to speak about her research on extreme poverty, vulnerability and non-refoulement.

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Get involved in GHLG: ‘Vulnerability and Migration in International Human Rights Law’

Do you want to find out more about human rights in the context of migration? Are you interested in learning about social scientific research methods and qualitative content analysis programmes and their application in the legal field? Join the project ‘Vulnerability and Migration in International Human Rights Law’ as a research assistant or thesis student!

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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”.

Case law discussion on Asiye Genç v. Turkey, ECtHR 27 January 2015

Dr. Brigit Toebes, University of Groningen

On 19 March the Department of International Law of the University of Groningen held its second case law discussion, organised by colleagues Monika Ambrus and Panos Merkouris. This time we discussed the judgment of the European Court of Human Rights in Asiye Genç v Turkey of 27 January 2015 (in French, see also previous Global Health Law Groningen blog posting). The case concerned the tragic story of a newborn baby with respiratory problems who dies in an ambulance after the baby’s transfer between hospitals without being admitted for treatment.

The judgment of the Court is based on the right to life in Article 2 European Convention on Human Rights (ECHR). With reference to earlier case law, the Court Stated that Article 2 ECHR has two dimensions:  a positive obligation to regulate the health sector, and secondly an obligation to establish an effective and impartially functioning procedural system in response to the accident.

When it comes to the first obligation, the Court held that the State had not sufficiently ensured the proper organization and functioning of the public hospital service. The child had not died because of negligence or error of judgment in the care dispensed to it, but because it was not offered treatment at all. This then constituted a denial of medical care so as to put a person’s life in danger.

A denial of medical care – with this, the Court comes remarkably close to the right to (protection of) health as recognised in Article 11 of the European Social Charter (ESC) and Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It is also interesting that the Court refers in this respect to the ‘quantity’ and ‘state’ of the medical services. In General Comment 14 on the right to health in Article 12 ICESCR, the ESCR Committee formulates the so-called ‘AAAQ’, containing the obligations on the part of the State to ensure the availability, accessibility, acceptability and quality of health services. The ‘quantity’ and ‘state’ of medical services, as mentioned in this judgment, can be traced back to ‘availability’ and ‘quality’ in the AAAQ.  In this case, the ECtHR formulates a bottom line or possibly a ‘minimum core’ for the right to health or medical care: there is a violation of the right to life when emergency medical care is structurally absent and the patient will die as a result of this.
Not all judges of the Court concurred with this position. Whilst agreeing that there was a violation of Article 2 ECHR, in their concurring opinion Judges Lemmens, Spano and KjØlbro did not see a reason to criticize the lack of incubators. They argued that Article 2 should not be interpreted as requiring a certain level or quality of medical equipment.

Time will tell how the Court will respond to future cases where the lack of availability and quality of healthcare services are at stake. Will it be more restrictive, in line with the concurring opinion, or will it go beyond this case and recognize a failure also when the event does not result in the death of the patient? Will it, ultimately, be willing to go beyond a minimum right to emergency medical care?