ECtHR - Yoh-Ekale Mwanje v. Belgium, Application No. 10486/10, 20 December 2011

Facts:

The applicant is a national of Cameroon who left the country in 2002. Following the refusal of her asylum claim in the Netherlands she left and began a relationship in 2006 with a Dutch national living in Belgium. They were refused permission to marry. In September 2009, the Aliens Office ordered the applicant to leave the country as she had no valid residence papers and had a false passport. She was placed in a closed centre for illegal immigrants pending the issue of travel papers to deport her to Cameroon. She appealed against a later order to leave the country under an extremely urgent procedure as she was at an advanced stage of the HIV infection which was diagnosed in 2003. Her applications for release and stay of execution of the order were rejected. She lodged an application for Rule 39 interim measures to suspend her removal to Cameroon on the day prior to her deportation, on 22 February 2010. This was granted, and she was released from detention on 9 April 2010.

She claimed that her deportation to Cameroon would violate Article 3, as she would not have access to the necessary anti-retroviral drugs, leading to her premature death, in contravention of Article 2 and that it would interfere with her Article 8 right to private and family life. In addition, she alleged that there was no effective remedy to challenge her removal in the Belgian courts on this basis. She also submitted that her detention in a closed centre was unlawful and arbitrary, in violation of Article 5(1)f), as well as Article 3, on account of the lack of appropriate medical care. 

Decision & reasoning:

The Court noted that the treatment the applicant required was only accessible to a small percentage of the population in Cameroon, and without these drugs her health would deteriorate. However, this situation was insufficient to constitute a violation of Article 3, as Contracting States were not obliged to alleviate gaps in medical treatment by providing free and unlimited healthcare to foreigners who did not have the right to remain (N v UK). This case did not involve such compelling humanitarian considerations as existed in the case of D v UK. The medical certificates issued showed that her current condition was not critical and she was fit to travel. As such deportation of the applicant to Cameroon would not violate Article 3 or Article 2.

The Court observed that the applicant had a serious and incurable disease, which the Belgian authorities were aware of, and which had worsened while she was detained. There was a delay in the applicant being examined by hospital specialists and in administering appropriate treatment. The Court considered that the authorities had not acted with due diligence in taking all measures reasonably expected of them to protect the applicant’s health and prevent its deterioration whilst she was detained. This exposed her to suffering over and above that expected for someone detained, with HIV,  facing deportation, which constituted inhuman and degrading treatment.

With regard to Article 13, the applicant’s request for leave to remain on medical grounds had been refused in reliance on an opinion issued by a medical officer and information on the availability of medication in Cameroon. However this was based on limited information as the medical officer had not conducted an individual assessment of the applicant and was therefore not in a position to know what specific treatment she needed, and whether this was available. The Court found that the Belgian authorities had dispensed with a careful and thorough examination of the applicant’s individual situation before concluding that no risk would arise under Article 3 if she were deported to Cameroon and continuing with the deportation procedure and as such the applicant was deprived of an effective remedy.

Turning to the applicant’s detention, domestic law provided for the detention of aliens refused leave to remain in Belgium for the time strictly necessary to enforce a deportation order, with a two month maximum time limit. This could be extended provided action was being taken with due diligence to secure deportation, which was still realistic within a reasonable time. Her scheduled removal was due on 23 February 2010 but this was prevented due to the Court’s interim measures. Although further detention following this did not exceed the 2 month maximum, it was apparent that no final decision would be made within this period, and therefore that deportation would not take place within a reasonable period. Further, given the applicant’s personal circumstances and cooperation with the authorities, a less drastic alternative to detention should have been considered. This could have still protected the public interest while avoiding the further detention of the applicant for 7 weeks during which her health deteriorated. Article 5(1)f) was violated as there was no link between her detention and the purported aim of securing her removal from Belgium. 

Outcome:

No violation of Article 3 to deport the applicant to Cameroon.

Violation of Article 3 in relation to the applicant’s detention.

Violations of Article 13 and Article 5(1)f). 

Observations/comments:

Six out of seven of the judges (judges Tulkens, Jočienė, Popović, Karakaş, Raimondi and Pinto de Albuquerque) issued a partially concurring separate opinion, in which they called for the case law in N v. UK , which they felt bound to follow to preserve legal certainty, to be reconsidered one day. They found this case to set a very high threshold for Article 3 violation on the basis of compelling humanitarian grounds. The jurisprudence required an extreme factual scenario where a person is at the final stage of a disease, near death, as was the case in D v UK in order to find a violation of Article 3. They  considered that this was not compatible with the letter and spirit of Article 3 given the fundamental and absolute nature of this right, and did not adequately respect the integrity and dignity of the person.

The author of a blog on strasbourgobservers.com  considers this case to illustrate a pattern in the Court’s reasoning towards recognising a ‘less stringent measures test’ when it considers detention of migrants under Article 5(1).  

Other sources:

UNAIDS report ‘ The Impact of Aids and HIV in Cameroon in 2020’ dated September 2010

WHO Epidemiological Factsheet Cameroon, 2009

National Agency for Research on Aids and  Viral Hepatitis report ‘Decentralised access to treatment for HIV/AIDS: Evaluation of the Cameroon experience’ published February 2010