CJEU (Grand Chamber) - X v Staatssecretaris van Justitie en Veiligheid, Case C-69/21, 22/11/2022

Facts:

The applicant has a rare form of blood cancer and the only treatment working to relieve his pain is based on medicinal cannabis not permitted in Russia. He applied for international protection in the Netherlands but his claim was rejected because another Member State was deemed responsible for examining the application. He made a new application arguing that because the use of medicinal cannabis is not permitted in Russia, he had to grow his own cannabis plants, exposing him to great difficulties. It was rejected as these problems were viewed as not credible and in the same decision, the Secretary of State said that X could not obtain another residence permit. The District Court partially annulled the decision and the Secretary of State had to reexamine the applicant’s arguments. Following another refusal, he brought an action before the referring Court arguing that if he was returned to Russia he would have to stop his treatment and therefore could no longer live a decent life.

Decision & reasoning:

-        On the first and second questions

Article 5 of the Return Directive recalls the principle of non-refoulement, which precludes a third-country national from being removed to a third country where there are substantial grounds to believe the person would be exposed to a risk of inhuman or degrading treatments contrary to Articles 18 and 19(2) of the Charter. According to previous case law, the pain caused by an illness arising from natural causes is covered by this article when the pain is increased as a result of a removal measure for which the authorities may be held responsible. Therefore, this provision can be applied when the state of health of the removed person risks declining because of intense pain. The fact that the removal is likely to worsen the state of health must be attested by substantial grounds. In the present case, Russia, where the applicant would be removed, does not permit the only effective relief treatment and the absence of the said treatment would expose him to a pain so intense it is contrary to human dignity.

-         On the third question

Considering the previous answer, the Court cannot conclude that it would be sufficient for a Member State to ensure that the third-country national would only receive appropriate treatment during the removal and not after. States have the obligation to ascertain that the person is fit to travel and receives adequate treatment during and after the removal.

-        On the fourth question

The Court recalls that the Return Directive does not concern the rules on how to attribute a right of residence, therefore no provision can be interpreted as requiring a Member State to grant a right to residence to third-country nationals suffering from an illness treated in the Member State. However, it aims to establish a removal system that respects the fundamental rights and dignity of the individuals concerned (recitals 2 and 4), meaning that when implementing the Directive and taking a return decision, Member States must respect their individual rights enshrined in the Charter, including the right to respect for the private and family life (Articles 7 Charter). In this regard, the Court found that, even if it is not specifically mentioned in Article 5 of the Return Directive, the medical treatment of the applicant is part of his private life.

The Court confirms that, in accordance with ECtHR case-law, the threshold remains high for a return decision to be barred on medical grounds.

Outcome:

On those grounds, the Court (Grand Chamber) hereby rules

1.      Article 5 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights of the European Union as well as Article 19(2) thereof,

must be interpreted as precluding a return decision from being taken or a removal order from being made in respect of a third-country national who is staying illegally on the territory of a Member State and suffering from a serious illness, where there are substantial grounds for believing that the person concerned would be exposed, in the third-country to which he or she would be removed, to a real risk of a significant, permanent and rapid increase in his or her pain, if he or she were returned, on account of the only effective analgesic treatment being prohibited in that country. A Member State may not lay down a strict period within which such an increase must be liable to materialise in order to preclude that return decision or that removal order.

2.      Article 5 and Article 9(1)(a) of Directive 2008/115, read in conjunction with Articles 1 and 4 of the Charter of Fundamental Rights as well as Article 19(2) thereof,

must be interpreted as precluding the consequences of the removal order in the strict sense on the state of health of a third-country national from being taken into account by the competent national authority solely in order to examine whether he or she is able to travel.

3.      Directive 2008/115, read in conjunction with Article 7, as well as Article 1 and 4 of the Charter of Fundamental Rights,

must be interpreted as:

-        meaning that it does not require the Member State on whose territory a third-country national is staying illegally to grant that national a right of residence where he or she cannot be the subject of a return decision or a removal order because there are substantial grounds for believing that he or she would be exposed, in the receiving country, to a real risk of a rapid, significant and permanent increase in the pain caused by the serious illness from which he or she suffers;

-        the state of health of that national and the care he or she receives on that territory, on account of that illness, must be taken into account, together with all the other relevant factors, by the competent national authority when it examines whether the right to respect for the private life of that national precludes him or her being the subject of a return decision or a removal order;

-        the adoption of such a decision or measure does not infringe that right on the sole ground that, if he or she were returned to the receiving country, that national would be exposed to the risk that his or her state of health deteriorates, where such a risk does not reach the severity threshold required under Article 4 of the Charter.

Subsequent proceedings:

https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBDHA:2022:14223&showbutton=true&keyword=ECLI%3aNL%3aRBDHA%3a2022%3a14223&idx=1

Observations/comments:

The Court relies on precedent case law to interpret the Directive and on case law of the European Court of Human Rights.

This summary was written by Sixitne Schaffers, student at the Human Rights and Migration Law Clinic of the University of Gent.