Published: 25/11/2021

ECtHR case law gives rise to some dilemmas

Picture of the European Court in Strasbourg of Human Rights

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An inhuman situation resulting from illness and resource shortage in an applicant's home country can constitute grounds for right of residence. This has not always been the case.

Article 3 of the European Convention on Human Rights (ECHR) states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. This is a fundamental right that most of us take for granted: No one should have to fear torture or abuse at the hands of the authorities. And the authorities must be expected to do everything in their power to prevent such actions taking place. But can this provision entitle seriously ill foreign nationals to residence in Norway? According to case law from the European Court of Human Rights (ECtHR), it can.

The Court, which is based in Strasbourg, France, hears applications from individuals who claim that their rights under the Convention have been violated. In its case law, the Court has interpreted Article 3 such that it can protect foreign nationals against removal if they are seriously ill and have no access to treatment in their home country. The key ruling is currently Paposhvili v. Belgium (external link). This judgment was pronounced in December 2016 by a unanimous Grand Chamber. The Grand Chamber comprises 17 judges and is the supreme body of the Court.

Before I look at the judgment, I would like to comment on the legal basis and development of the law, since that could prove useful when it comes to understanding the judgment.

What does ECHR Article 3 say?

The ECHR was signed in 1950, and all European states are currently bound by it. It guarantees fundamental rights such as the right to life, protection against torture, abuse, slavery and arbitrary imprisonment, freedom of thought and religion, and freedom of speech. The Convention was drafted shortly after the Second World War, at a time when the abuses and cruelty of the Nazi regime were still fresh in people's minds. There was also a growing fear of new brutal regimes emerging in Eastern Europe. The Convention was inspired by the UN's 1948 Universal Declaration of Human Rights and it was intended to safeguard civil and political rights in Europe. One of these rights was the protection against torture and abuse set out in Article 3.

Article 3 states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

This prohibition is absolute. It cannot be derogated from, not even ‘in time of war or other public emergency threatening the life of the nation’, as Article 15 puts it. Torture or abuse is not permissible under any circumstances.  

The states’ responsibility under the Convention is limited to persons within their jurisdiction. This follows from Article 1. 'Jurisdiction' is normally taken to mean the territory of a state. That was also how the states interpreted the term when the Convention was adopted in 1950. The Convention applies to everyone within a state's territory, including foreign nationals – regardless of whether they are staying there lawfully or unlawfully. The states must refrain from torturing and abusing any person, citizen or foreign national, who is on their territory or under their control. They must also prevent torture and abuse within their jurisdiction, including by investigating and prosecuting people for such actions. 

How the ECtHR has changed our understanding of ECHR Article 3

Including protection against removal (Soering v. the United Kingdom)

In principle, the prohibition against torture and abuse set out in Article 3 only applies to persons who are in the territory of or under the control of a state. The Convention does not explicitly prohibit removal to other countries where people may be subjected to abuse and human rights violations, unlike e.g. the UN's Refugee Convention of 1951 (Article 33) or the 1984 UN Convention Against Torture (Article 3). However, the Court has applied an expansive interpretation of ECHR Article 3. In its decisions, the Court has stated that Article 3 does not only prohibit states from torturing and abusing people in their own country, but also from removing them to other countries where they will be subjected to torture or abuse. This was first stated in Soering v. the United Kingdom (1989). The Court acknowledged that Article 3 did not contain an explicit prohibition on removal, but considered that it had to be read into this provision. Sending someone to face torture or inhuman or degrading treatment or punishment in another country would be in violation of the objective and values of the Convention. The Court soon followed up this position in other judgments, and it has been established practice ever since. Most of the cases concern return to a person's home country, but some also concern removal to other countries.

In its case law, the Court has interpreted Article 3 to mean that it confers a right to protection against removal if there is good reason to believe that a person will face a real risk of torture or inhuman or degrading treatment or punishment if returned. It does not have to be certain or most likely that the person will be subjected to such actions on his/her return. It is sufficient to be protected against removal under Article 3 that there is a real risk.

Protection against removal interpreted as absolute

The Court has also interpreted Article 3 as conferring absolute protection against removal. This protection cannot be derogated from under any circumstances. The provision provides everyone with the same protection, including persons who represent a risk to society. The protection against removal cannot be adjusted based on the risk a person represents, for example by imposing stricter standards for the risk of future abuse or the degree of abuse people may face if returned to their home country. No matter how harmful a person is to society, he or she will be entitled to protection against removal if there is a real risk of a single instance of degrading treatment if they were to be returned to their home country.

On this point, Article 3 confers stronger protection than the Refugee Convention. The Refugee Convention prohibits returning refugees to persecution, but it does not protect all of them. The Convention permits the return of refugees who constitute a danger to the security of the country (Article 33(2)) and persons who have committed one of a number of crimes (Article 1 F).

To summarise, ECHR Article 3 provides absolute protection against removal of foreigners who risk torture, inhuman or degrading treatment or punishment if returned. The risk does not have to be high. It is sufficient that there is a real risk. This follows from the Court’s case law.

The ECtHR allowed for protection on health grounds

When we hear the words ‘torture’ or ‘inhuman or degrading treatment or punishment’, we usually think about concrete instances of abuse and intentional actions. This is inherent in the words ‘treatment’ and ‘punishment’. Article 3 was long interpreted in this way. It only conferred protection against removal to suffering in a person's home country intentionally inflicted on the person, either by the authorities or by private persons against whom the authorities were unable to provide protection. The Court changed this interpretation over time, however.  

D versus the United Kingdom

In the case D v. the United Kingdom (1997), the Court assumed that foreign nationals may be entitled to protection against removal pursuant to ECHR Article 3 even if they do not risk suffering intentionally inflicted by the authorities or others. The case concerned a man from the island state of St Kitts who was imprisoned in the UK for cocaine smuggling. While serving his sentence in the UK, he was diagnosed with AIDS and started treatment. After completing his sentence, he was to be expelled to St Kitts. By then, he was in the advanced stages of the disease and it was clear that he was going to die. The limited quality of life he enjoyed in the UK was due to the care provided by a charitable organisation and sophisticated medication. He attended group counselling on death and had formed bonds with his carers. In St Kitts, he would not have had access to medical treatment or care. He had no family who could provide him with food or shelter. It was clear that he would die under very difficult circumstances. In the Court's view, removing him to St Kitts would amount to inhuman treatment. Due to the ‘very exceptional circumstances’ of the case, removing him would be a violation of Article 3.

This represented another expansive interpretation of Article 3. Not only did it prohibit removal to concrete abuse or suffering intentionally inflicted by the authorities or others, but also to an inhuman situation resulting from illness and lack of resources in the home country. This was later referred to in Opinions of the Lords of Appeal for Judgment in the Cause as ‘an extension of an extension’ of the Article 3 obligation, see paragraphs 23 and 87 (refworld.org).

Strict practice in the following years

After its judgment in D v. the United Kingdom (1997), the Court applied a strict standard for protection on grounds of physical or mental illness. ‘Very exceptional circumstances’ had to exist. The Court's grounds for this were that the Convention is primarily intended to safeguard civil and political rights, not to provide access to medical treatment and social benefits. The member states had no obligation to compensate for differences in treatment provisions between rich and poor countries by providing unlimited health services to seriously ill foreign nationals. That would impose far too great a burden on the states.

N versus the United Kingdom

In the following years, no applications on grounds of health issues alone succeeded. The Court rejected numerous applications from persons with physical or mental conditions after having considered the health services available in their home countries. These cases included several people with HIV. One example is the Grand Chamber's judgment in the case of N versus the United Kingdom.  

In the case of N versus the United Kingdom (2008), the matter in dispute was whether an HIV-positive woman from Uganda could be returned to her home country. She entered the UK by plane and was immediately admitted to hospital, where she was found to be HIV-positive. The Court’s majority (14-3) was of the opinion that Article 3 did not prevent her from being returned. Her condition was stable following the treatment she had received in the UK. She was fit to travel and would remain fit as long as she continued to receive basic treatment. Her quality of life and life expectancy could change if she was returned to her home country. How quickly this would occur was uncertain. Only half of all HIV-positive people in Uganda had access to medication. There was poor access to medication in rural areas such as the area she was from. Nevertheless, the majority considered that her situation was less serious than that in the case of D versus the United Kingdom (1997). It could not be ruled out that there might be ‘other very exceptional cases where the humanitarian considerations are equally compelling’, but the majority was of the opinion that the Court was right to uphold the high threshold set in D versus the United Kingdom.

Not all the ECtHR judges agreed with the strict practice of the Court. This manifested itself in a series of dissenting and separate opinions in various decisions. In 2016, it was time for a new round in the Grand Chamber. The case in question was Paposhvili v. Belgium.

New issue for consideration in health-related cases

In Paposhvili v. Belgium (2016), the Grand Chamber was to ‘clarify’ (paragraph 182) the protection against removal on grounds of health issues. This has since been the key decision for the consideration of such cases.

Paposhvili v. Belgium

The case concerned a man from Georgia who travelled to Belgium, where he committed a number of crimes and received a prison sentence. The Belgian authorities wanted to expel him to Georgia. However, in 2006 he was diagnosed with a life-threatening form of cancer (chronic lymphocytic leukaemia) while serving his sentence in Belgium. He then received extensive chemotherapy in Belgium for many years. His condition gradually deteriorated, and he was given more advanced medication. A 2015 declaration written by a specialist stated that he would probably die within six months without such medication. His only chance of a full recovery was a bone marrow transplant. It was claimed that neither the medication in question nor the possibility of a transplant would be available to him in Georgia. The man died in Belgium in 2016 before the case could be considered by the Grand Chamber.

The Grand Chamber did not draw any final conclusion on the treatment available in Georgia, but found that Belgium would have violated Article 3 of the ECHR had it returned the man to Georgia. The reason for this was that they had failed to adequately consider whether he would have been subjected to inhuman treatment on his return in light of the state of his health and the treatment available in Georgia. As regards the threshold for protection on grounds of health issues, the Court maintained that ‘very exceptional circumstances’ were required for this to apply. However, it is not a requirement for death to be imminent, as in D v. the United Kingdom. Article 3 can also entitle seriously ill persons to protection ‘in other very exceptional circumstances’. The Grand Chamber states in paragraph 183 that this applies to foreign nationals who risk a serious, rapid and irreversible decline in their state of health resulting in either intense pain or significantly reduced life expectancy in the absence of adequate treatment:
‘183. The Court considers that the “other very exceptional cases” […] which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.’

Article 3 thus confers a right to protection if there is a real risk of a seriously ill person suffering a serious, rapid and irreversible decline in his or her state of health resulting in either intense suffering or a significant reduction in life expectancy if returned to his or her home country, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment. This applies to people suffering from both physical and mental illness.

Has the ECtHR extended the scope of protection against removal in health-related cases?
Does this mean that the Court is extending the scope of protection against removal in health-related cases and introducing a lower threshold for protection?
At first glance, the issue under consideration in paragraph 183 seems to suggest that it does. There is a difference between death being imminent (previous case law) and suffering a serious, rapid and irreversible decline in one's state of health, resulting in either intense suffering or a significant reduction in life expectancy in the absence of appropriate treatment (the Paposhvili test). Many people with serious cancers or cardiovascular conditions, for example, could suffer a rapid and serious decline in their state of health and a significant reduction in life expectancy in the absence of appropriate treatment. On the other hand, the criteria in paragraph 183 are fairly vague. They allow for a certain discretion. What does ‘rapid’ or ‘serious’ decline entail? What is meant by a ‘significant’ reduction in life expectancy? Moreover, the Grand Chamber states that this applies to ‘other’ very exceptional cases. This indicates that the threshold will remain high. Cases must involve ‘exceptional’ circumstances. Having a life-threatening illness is not in itself exceptional. Many people suffer from such illnesses. The Grand Chamber also states that these cases shall correspond to ‘a high threshold’. However, it does not state that it must be the same high threshold, but simply ‘a’ high threshold. The Court also states in paragraph 182 that the approach ‘should be clarified’. It does not say that it wishes to extend the protection. The judgment is ambiguous. It has the potential to be broad in scope, but can also be interpreted as largely upholding the high threshold and thus be of limited scope.

This ambiguity became apparent in British case law shortly after the judgment. In a 2017 decision, the British Upper Tribunal (Immigration and Asylum Chamber) (gov.uk) found that the ECtHR's judgment constituted ‘an extension of earlier jurisprudence’. The following year, the appellate body, the Court of Appeal, concluded that Paposhvili represented a ‘very modest’ extension (bailii.org). This judgment was appealed to the UK Supreme Court. The UK Supreme Court did not comment on the degree of extension in its judgment of April 2020 (supremecourt.uk), but concluded that the Court of Appeal's concrete and narrow interpretation of the judgment was incorrect. The Supreme Court seemed to indicate that this will largely depend on the interpretation of the conditions set out in paragraph 183, including ‘significant’ reduction in life expectancy:
‘31. […] Like the skin of a chameleon, the adjective takes a different colour so as to suit a different context. […] The word “significant" often means something less than the word “substantial". In context, however, it must in my view mean substantial. […] But even a reduction to death in the near future might be significant for one person but not for another. Take a person aged 74, with an expectancy of life normal for that age. Were that person's expectancy be reduced to, say, two years, the reduction might well - in this context - not be significant. But compare that person with one aged 24 with an expectancy of life normal for that age. Were his or her expectancy to be reduced to two years, the reduction might well be significant.’

The scope of the states’ duty of investigation has been extended

On one point, however, it seems clear that Paposhvili goes somewhat further than previous ECtHR judgments. This point concerns the states’ duty to investigate the treatment available in the home country. The Grand Chamber underlines that the states must verify whether the care generally available is sufficient and appropriate in practice for the treatment of the foreign national's illness. The states must also consider whether the foreigner will actually have access to this care, taking into consideration, among other things, the cost of treatment and the distance to be travelled (paragraphs 189 and 190). If there are serious doubts about whether he will have access to sufficient treatment, the state must obtain assurances from the authorities in the home country that treatment will be available to him following his return (paragraph 191). This is new. In the case of N v. the United Kingdom (2008), the majority found that the applicant could be returned to Uganda even though it was uncertain whether treatment would be available to her. In Paposhvili, the Court appears to require a more thorough investigation of the availability of treatment in the home country.
So far, no final and enforceable ECtHR judgments have specified the conditions for protection set out in the Paposhvili judgment. The Grand Chamber will decide on protection against removal on grounds of mental illness in the case of Savran v. Denmark. The Grand Chamber may well comment on this threshold in that case, but the judgment has not yet been handed down.

Reflections on ECtHR case law

There is no doubt that the Court’s dynamic interpretation of the Convention can provide valuable input to the development of the law in Europe. In some cases, however, it can also give rise to questions and dilemmas. This is not something that UNE takes into consideration in its case processing. UNE will comply with the Court's requirements at all times, as we are obliged to do. But sometimes, one can pause to reflect on the questions of principle that case law raises – as indeed one should for all practice, including UNE's practice.

Below I offer some simple reflections:

• Outside the core area: The right to protection on grounds of health issues is well beyond the core area of ECHR Article 3. This is not a question of abuse in Norway, but of a risk of abuse in the receiving state due to suffering for which not even the authorities of that state can be held responsible (Paposhvili paragraphs 173 and 175). It does not concern concrete abuse or the authorities denying treatment due to discrimination. It is about natural suffering as a consequence of illness and insufficient availability of treatment. When the Convention was adopted, it was not the intention that Article 3 should confer protection in such cases. Nor was the Convention intended to be interpreted in such a dynamic manner as the Court has done. That is something the Court itself has decided.
• Scope: This is not an insignificant issue. Serious illness can affect anybody. And many countries are unable to provide their citizens with expensive medication and state-of-the-art treatment.
• Obligations: These cases are not just about the right to protection against removal. For the states involved, it is also a question of right of residence and the right to medical treatment. In its judgment in the Paposhvili case (paragraph 188), the Court states that it is only concluding on the state's obligation not to return the foreign national. However, the consequence is that the states become responsible for the person and must ensure that he receives the treatment he needs. In most cases, the key issue will be the wish for treatment. Without it, the protection afforded by Article 3 will not be worth much.
• Health services in rich and poor countries: The Court emphasises in the Paposhvili judgment (paragraph 189) that it is not a question of comparing the level of care available here and in the home country. At the same time, the Court says that the foreign national's state of health here must be compared to his expected state of health in his home country (paragraph 188). When making such a comparison, the quality of treatment available in Norway and in the foreign national's home country could be a key factor. In most cases, differences in the treatment available are precisely what results in the foreign national being granted protection. It is a factor in many cases whether the home country can provide a form of treatment that has already been initiated here and that health personnel deem absolutely vital. In such cases, differences in the treatment available will often be apparent and may be decisive.
• Consequences for society: The right to protection in health-related cases can have consequences for society. Firstly, there is the question of the costs of medical treatment, which could be considerable. In the Paposhvili case, the applicant was being treated for cancer in Belgium. He was being treated with a drug that cost EUR 6,000 per month as well as advanced hepatitis C medication that cost EUR 700 per day. A possible transplant would have cost EUR 150,000 (paragraph 140). Secondly, many patients will need social and financial benefits, often for a long time. Thirdly, it can be more difficult to expel people who represent a risk or burden to society, for example violent individuals with serious mental disorders who meet the requirements for protection set out in the Paposhvili judgment.
• Absolute protection: The Court's case law provides absolute protection against removal in health-related cases. This protection cannot be derogated from under any circumstances or weighed against other weighty considerations, not even in the event of excessive health immigration or if the burden on the health service becomes too great. Norway has a long-standing tradition of granting residence on humanitarian grounds based on serious health problems, and it is very possible that many member states do the same. But this is a practice that the states themselves can adjust on the basis of their own needs and wishes.
• The ECtHR's grounds: When the ECtHR has extended the Convention in other areas, it has often referred to this being in accordance with the prevailing conception of justice in the vast majority of the member states. The Paposhvili judgment makes no reference to the states’ conception of justice or practice. It is clear that Article 3 was not intended to afford protection in such cases when the Convention was adopted, and it is very doubtful whether the states have ever wanted such an interpretation. There are probably few, if any, states that want an interpretation that extends the absolute obligations under the Convention in such a politically sensitive area as health immigration. Moreover, the Court has not carried out any concrete assessments of the societal consequences of the practice. The only grounds based on a question of principle given in D v. the UK (1997) for extending the protection against return to health issues was ‘the fundamental importance of Article 3 in the Convention system’ and the importance of not undermining the absolute character of its protection (paragraph 49). It does not necessarily follow from the fact that a provision is absolute and important that its scope should be extended, however. On the contrary, the absolute nature of the provision could be an argument against interpreting it in a way that extends its scope. The states are normally unwilling to accept absolute obligations unless they have explicitly agreed to them. The grounds given in Paposhvili are that the rights under the Convention should be ‘practical and effective and not theoretical and illusory’ (paragraph 182). But this is not a particularly good argument for extending the scope of a rule. A rule should of course be practical and effective against the type of actions it is intended to protect against, but that does not necessarily mean that it must also offer protection against other types of actions or situations. No one would find it difficult to understand the human aspects of the Court’s case law. These are sad cases. The problem with the vague grounds given by the Court is that they do not draw a clear dividing line for how far the absolute protection should extend in purely humanitarian cases. How far are we willing to go when faced with illness, poverty and social deprivation? That is entirely up to the Court.
Health and immigration are two important topics of public debate. They are of major importance to the welfare society and raise important political questions. There are many considerations to take into account and interests to be weighed against each other. It does not make things any easier when these two topics intersect. A right to residence in Norway on grounds of health issues is essentially a political question. Many will probably agree that residence should be granted in some cases. Which cases this should apply to is open for debate, however. Opinions will differ. Whether this should be made an absolute right and whether it is for the Court in Strasbourg to do so, is another matter on which opinions will probably differ.