28 February 2014

The European Court of Human Rights has ruled that a Nigerian woman and her three children did not have an effective opportunity to challenge their removal from Belgium on the ground that they faced a risk of ill-treatment in Nigeria. The Court concluded that Belgian law failed to enable the applicants to appeal their deportation with ‘automatic suspensive effect’. A suspensive effect enables people to remain in the country while their appeal is examined by a judicial authority.

Under Belgian law an ‘annulment appeal’ against an expulsion order and an ordinary ‘suspension appeal’ have no suspensive effect. Only an appeal for suspension under the extreme urgency procedure has automatic suspensive effect. Such an appeal can only be issued where expulsion is imminent and where the applicant is in detention, according to the jurisprudence of the Belgian Appeal Court. Moreover, the ‘extreme urgency procedure’ cannot be launched in the absence of an ordinary suspension appeal.

The Court found that the Belgian appeal process against a deportation is too complex and difficult to understand, even, as in this case, with the benefit of specialist legal assistance. Given the complexity, coupled with the limited application of the ‘extreme urgency procedure’, the Court concluded that Belgium failed to comply with Article 13 of the European Convention on Human Rights (ECHR), which requires the right to an effective remedy to be available and accessible in practice.

The Court urged Belgium to amend its domestic law in order to ensure access to an effective remedy with automatic suspensive effect, and one which is not conditional on lodging a prior appeal.

The Court found that there was no violation of Article 3 (prohibition of inhuman treatment) ECHR. The Nigerian mother, who is HIV-positive, had submitted that the necessary medical treatment she requires could not be provided to her in Nigeria, thereby placing her at risk of physical and mental suffering contrary to Article 3.

In line with its previous judgments, the Court held that Article 3 is only raised in regard to treatment facilities in very exceptional cases, 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’. Notwithstanding the acknowledged absence of free treatment for AIDS for the majority of people in Nigeria, and the Courts acknowledgements that her three dependent children will witness her deterioration, the majority of the Court concluded that the mother is not in a ‘critical condition’ and therefore her removal to Nigeria is not prohibited by Article 3.

One dissenting judge could not agree with the majority’s decision, given that it would almost certainly lead to the imminent death of the applicant.

The Court also rejected the applicant’s claim that her return to Nigeria would breach her right to family life under Article 8 on the basis that she could not have had any legitimate expectation of an eventual right of residence in Belgium. In addition, the young age of the three children means they have the ability to adapt and resettle in Nigeria. Significantly, the Court also noted that the family would remain together if removed.

This article originally appeared in the ECRE Weekly Bulletin of 28 February 2014
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