The execution of the applicant’s deportation to his country of origin would seriously endanger his health
JUDGMENT
Iboko Lokila v. France 18.04.2024 (app. no. 54507/21)
SUMMARY
Forced expulsion proceedings against the applicant, a national of the Democratic Republic of the Congo (DRC) and suffering from several physical ailments, in the DRC.
The applicant claimed that if the deportation order were executed, he would run a serious risk of ill-treatment because of the lack of medication and care he needed to receive for his medical conditions. A medical opinion from a doctor at the Immigration and Integration Office found that the applicant’s state of health required medical treatment, which had to be continued for a period of six months, that the lack of medical treatment could lead to extremely serious consequences and that, taking into account the provision of care and the characteristics of the health system in the country of origin, he could not benefit from appropriate treatment there, specifying that his state of health did not allow him to
The Court emphasised that it was for the applicants to adduce evidence sufficient to show that there were serious reasons to believe that, if the contested measure were to enter into force, they would run a real risk of being subjected to treatment contrary to Article 3 of the Convention. Finally, the Court found that the applicant had provided sufficient evidence to show that there were substantial grounds for believing that, if the expulsion decision were enforced, he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention.
Therefore, the enforcement of the applicant’s deportation order would constitute a violation of the procedural part of Article 3 ECHR.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant claimed that there was a risk of a violation of Article 3 of the Convention if the deportation order was executed in the DRC, where he would run the risk of being subjected to inhuman and degrading treatment and exposed to premature death due to the unavailability of the medical treatment and care he needed.
The applicant arrived in France in 1984.
He suffers from several chronic conditions, including high blood pressure, heart rhythm disorders, type 2 diabetes and hepatitis B.
A father of three children born in France, he was granted a residence permit for private and family life and applied for renewal of that permit at the end of 2020.
On 9 June 2021, an order refusing to renew his residence permit, requiring him to leave French territory (hereinafter ‘OQTF’) with a period of voluntary departure and determination of the country of destination, was issued against him on 9 June 2021 and notified to him on 22 July 2021.
By decision of 16 September 2021, which became final, the Cergy-Pontoise administrative court referred the applicant’s views seeking annulment of the decision to refuse to renew his residence permit to a collective committee and rejected his other claims. The applicant’s arguments seeking annulment of the decision refusing to renew the residence permit were subsequently rejected by a decision of 30 June 2022 of the Administrative Court of Cergy-Pontoise, confirmed by an order of 5 April 2023 of the Administrative Court of Appeal of Versailles.
On 22 October 2021, the applicant was arrested and detained for the purpose of executing his OQTF.
In a medical opinion issued on 1 November 2021, the doctor of the Office of Immigration and Integration concluded that the applicant’s health condition required medical treatment, which had to continue for a period of six months, that the lack of medical treatment could lead to extremely serious consequences and that, taking into account the provision of care and the health characteristics of the system in the country of origin, he could not benefit from appropriate treatment there, specifying that the It does not appear from the documents in the file submitted to the Court that the administrative authority requested a new medical opinion.
On 8 November 2021, the judge of the Melun Administrative Court, to whom the applicant applied for interim judicial protection, dismissed his application on the basis of the provisions of Act No. 522-3, in the absence of any change in the legal or factual circumstances that had arisen since 9 June 2021. The applicant did not contest this provision.
On 17 November 2021, the Court decided to direct the French Government, in accordance with Rule 39 of the Rules, in the interests of the parties and the proper conduct of the proceedings before it, not to refer the applicant during the proceedings before it.
By order of 21 December 2021, the detention order was lifted.
The applicant argued that deportation to the PRC, where, according to him, he would not be able to access the medical treatment required because of his illnesses, would expose him to conditions contrary to Article 3 of the Convention.
THE DECISION OF THE COURT…
The general principles on the deportation of sick aliens were summarized in the Paposhvili v. Belgium judgment of 13.12.2016 ([GC], no. ref. 41738/10, §§ 172-193) and confirmed in the Savran v. Denmark judgment of 07.12.2021 ([GC], no. ref. 57467/15, §§ 121-139).
In particular, the Court recalled that cases of deportation of a seriously ill person may raise a problem under Article 3 in which there are substantial grounds for believing that the person, although not currently at imminent risk of death, will, owing to the lack of appropriate treatment in the country of destination or lack of access to it, face a real risk of exposure to a serious, rapid and irreversible deterioration in his or her state of health leading to severe suffering or a significant reduction in his or her life expectancy. The Court has explained that these cases correspond to a high threshold for the application of Article 3 of the Convention to cases concerning the deportation of seriously ill aliens (Paposhvili, cited above, § 183; Savran , cited above, § 130).
The Court therefore emphasised that it was incumbent on the applicants to adduce evidence sufficient to show that there were serious reasons to believe that, if the contested measure were to enter into force, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention (Paposhvili, cited above, § 186).
The Court further emphasised that only when the threshold of gravity is reached, and therefore Article 3 applies, do the State’s obligations listed in paragraphs 187 to 191 of the Paposhvili judgment become relevant (Savran , cited above, § 135).
Finally, the Court recalled the procedural nature of the obligations incumbent on Contracting States under Article 3 of the Convention in cases involving the expulsion of a seriously ill alien. It stated that it was careful not to examine applications for international protection itself or to verify the manner in which States control the entry, stay and removal of aliens. Under Article 1 of the Convention, domestic authorities are in fact the primary authorities responsible for the implementation and enforcement of the guaranteed rights and freedoms and are therefore required to consider the fears expressed by the applicants and to assess the risks invoked under Article 3 of the ECHR. The complaints mechanism before the Court is subsidiary to the national human rights safeguards systems (Savran, cited above, § 136).
As regards the French system, the Court noted that the Law of 7 March 2016 reforming the Code on the entry and residence of aliens and the right of asylum (“CESEDA “) conferred on the OFII the exclusive power to provide medical opinions assessing the state of health of sick aliens, whether it be a decision to issue a temporary residence card in that capacity or the impossibility of imposing on them an obligation to leave French territory.
Article 611-3 of the CESEDA, which was in force on the date of the contested events, provided that the following cannot be the subject of an OQTF : “The foreigner habitually resident in France if his state of health requires medical treatment, the failure of which could have extremely serious consequences for him and if, taking into account the provision of care and the characteristics of the health system of the country of return, he could not benefit from this indeed appropriate treatment. Article 611-1 of the then-applicable CESEDA stated that: “In order to establish the state of health of the alien referred to in Article 611-3, the administrative authority shall take into account an opinion issued by a medical school with national jurisdiction of the French Office of Immigration and Integration . However, when the foreigner is placed under house arrest for the purposes of executing the decision requiring him to leave French territory or is placed or remains in detention pursuant to Title IV of Book VII, the opinion shall be issued by a medical practitioner and transmitted without delay to the competent local prefect. Article 611-2 of the same code, which was in force at the time, defined that: “The opinion referred to in article 611-1 is issued under the conditions defined by order of the minister responsible for immigration and the competent Minister of Health. However, when the foreigner is placed or remains in custody, the prescribed certificate is drawn up by a doctor working at the place of detention in accordance with article 744-14.
In this regard, the Court noted that the Defender of Rights recognized, in his report entitled “Sick foreigners: rights weakened, protection to be strengthened” and published on 10 May 2019, the importance and scope of the opinions of the medical units of the OFII , recalling, on the one hand, that “the examination of the availability of treatment in the country of origin falls under the exclusive competence of the OFII doctors, who, unlike the doctors of the medical units of the detention centers, have special tools to decide on this last point” and recommending, on the other hand, that the law be amended to expressly provide that, except for reasons of public order, the favorable opinions of the OFII medical school bind the prefects in their decision to admit for residence (…)”.
In the present case, first, the Court noted that the OFII’s doctor’s opinion of 1 November 2021 concluded that the applicant’s state of health required medical treatment, that the lack of medical treatment could lead to extremely serious consequences and that, given the provision of care and the characteristics of the health system in the country of origin, he could not benefit from appropriate treatment there. Also clarifying that his state of health did not allow him to travel without risk to his country of origin, he ruled against the applicant’s deportation to his country of origin. The Court further noted that the applicant provided evidence supporting the OFII doctor’s assessment of the unavailability in the PRC of the medication required for his ailments.
In these circumstances, the Court held that the applicant had provided sufficient evidence capable of demonstrating that there were serious grounds for believing that, if the deportation order were carried out, he would be exposed to a real risk of treatment contrary to Article 3 of the Convention and that , consequently, the seriousness threshold for the application of Article 3 has been reached, in the present case.
Second, the Court noted that the Government argues, based on the fact that the OFII medical opinion is not binding on the authorities, that the criteria on which the OFII doctors base their decision characterizing the existence of extremely serious consequences are not sufficient to lead to a violation of Article 3 of the Convention. However, the Court noted, on the one hand, that the national authorities did not in any way justify the reasons why they considered, although they had no medical capacity, that they could not follow the advice of the OFII doctor of the statutory procedure established by law of March 7, 2016 to ensure the reliability and impartiality of medical opinions, which constitutes, in the judgment of the Court, an objective guarantee of seriousness and quality. Furthermore, the Court considered that it did not appear from the documents in the file, in particular from the documents produced before it, that the Government dispelled the doubts raised by the opinion of the OFII doctor by subjecting the alleged risk to strict scrutiny, in particular taking into account the foreseeable consequences of the applicant’s return to the DRC, taking into account the general situation in that country and the special circumstances of the applicant’s case, verifying, after a full and ex nunc examination, whether the care generally available in the PRC is in practice sufficient to treat the illnesses from which he is suffering.
In these circumstances, the Court found that the domestic authorities had failed to comply with their obligations to establish appropriate procedures that would have enabled them to carry out a full and ex nunc examination of the applicant’s risks in the event of his return to DRC prison, the existence which was recognized by the unique medical opinion issued by the OFII doctor.
From the above, the Court concluded that in the absence of a prior assessment by the French authorities of his state of health, the execution of the applicant’s deportation order would constitute a violation of the procedural limb of Article 3 of the Convention.
The Court held that the interim measure previously referred to in this application is no longer necessary (edited by: echrcaselaw.com).
