9 January 2015

Two judgments relating to international protection for ill persons confirm that these cases cannot fall under EU asylum law, but their return can be prevented by the Returns Directive.

In the first case, which involves a Mauritian national, M’Bodj, who had been granted a residence permit under Belgian national law for medical reasons, the Court has held that a person suffering from a serious illness, which is not the result of an intentional deprivation of health care in his/her country of origin, is not entitled to refugee status or subsidiary protection status under the Qualification Directive. According to the Court, this is because international protection in the Directive does not include a person’s deteriorating health even if the country of origin lacks adequate medical treatment to treat them. Therefore, the social and healthcare benefits listed in the Qualification Directive will also not apply to medical cases. The applicant can, however, refer to the European Convention of Human Rights and inhumane treatment as well as statuses under national law, i.e. humanitarian status in order to seek the right to remain.

In the second case, however, whilst the Court repeats the finding in M,Bodj, it goes further and analyses the scope of the Returns Directive for medical cases. The Court considers that Article 19(2) of the Charter on Fundamental Rights of the European Union, which bans return where the applicant would face inhumane treatment, coupled with Article 5 of the Returns Directive, which requires Member States to take account of the state of health of the applicant and respect the principle of non-refoulement, prevents Member States from returning a seriously ill individual to a country where there is a serious risk of grave and irreversible deterioration to their state of health. In these cases, the Court rules that an appeal challenging a return decision must have suspensive effect, which is otherwise optional for Member States in the Returns Directive, and that during this time emergency health care and essential treatment of illness must be provided.

Further information
EU Law Analysis, Steven Peers, Could EU law save Paddington Bear? The CJEU develops a new type of protection, 21 December 2014