Region: Europe
Year: 2014
Court: Grand Chamber
Health Topics: Health care and health services, Health systems and financing
Human Rights: Freedom from torture and cruel, inhuman or degrading treatment, Right to health
Tags: Access to health care, Access to treatment, Asylum, Emergency care, Health expenditures, Health funding, Health spending, Immigrants, Immigration, Migrants, Refugees
Mr. Abdida, a Niegrian national, was in Belgium seeking asylum from torture and inhuman treatment. While in Belgium, he suffered from a serious illness and submitted an application to reside in Belgium on medical grounds. The application was accepted, and he began receiving social assistance from the Public Social Action Centre of Ottignies-Louvain-la-Neuve (“CPAS”). In 2011, Mr. Abdida’s application to reside on medical grounds was rejected on the grounds that his home country of Nigeria had adequate medical infrastructure to care for his particular illness. He was then ordered to leave Belgium. Abdida appealed this decision. He also appealed CPAS’ decision to withdraw his social assistance.
The question before the Grand Chamber was whether Articles 13 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”) preclude legislation that does not suspend an appeal brought against a return decision and does not take into account the needs of the party being removed pending a ruling on the appeal of the return decision.
The Court held that Article 5 and 13 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 should be interpreted as not allowing legislation to take away needed assistance from someone that is in a country waiting for an appeal to be heard. The basic needs of a non-national must be met, including access to emergency health care and essential treatment of illness during the time in which that person is waiting for the results of an appeal. It is for member States to determine how to provide for the basic needs of the non-national.
The Court stated that, although it is true that, according to Article 19(2) of the Charter of Fundamental Rights of the European Union, non-nationals subject to a decision authorizing their removal are not able to claim any entitlement to remain in a country just to receive medical or social assistance, it is not permissible to remove a foreign national to a country that is not equipped to attend to the person’s particular illnesses.
“In order for the appeal to be effective in respect of a return decision whose enforcement may expose the third country national concerned to serious risk of grave and irreversible deterioration in his state of health, that third country national must be able to avail himself, in such circumstances, of a remedy with suspense effect, in order to ensure that the return decision is not enforced before a competent authority has the opportunity to examine an objection alleging infringement…” Para. 50.
“It follows that Article 14(1)b) of Directive 2008/115 must be interpreted as precluding national legislation which does not make provision, in so far as possible, for the basic needs of a third country national suffering from a serious illness to be met, in order to ensure that such a person may in fact avail himself of emergency health care and essential treatment… during the period in which the Member State concerned is required to postpone removal of the third country national following the lodging of a appeal against a decision ordering that person’s return.” Para. 62.