Case: S.J. v. Belgium
Judgement date: 19 March 2015 (Grand Chamber)
Topic: Health
Aspect: Deportation of seriously ill persons

Summary of the facts:
The applicant, an HIV-positive Nigerian national, alleged in particular that there were serious and established grounds to believe that if she were returned to Nigeria, she would face a real risk of being subjected to inhuman and degrading treatment, on account of the fact that the complex antiretroviral therapy which guaranteed her survival is neither available nor accessible in Nigeria. She also submits that the absence of treatment would result in her premature death in particularly inhuman conditions, given the presence of her three young children.

Summary of the Court's findings:
The Court struck the application out of its list of cases (pursuant to Article 37 of the Convention), taking note of the terms of the friendly settlement that had been reached between the Belgian Government and the applicant and the arrangements for ensuring compliance with the undertakings given, namely the fact that the applicant and her children had been issued with residence permits granting them indefinite leave to remain. In the proposal for a friendly settlement received by the Court from the Belgian Government in August 2014 the latter stressed in particular the strong humanitarian considerations weighing in favour of regularising the applicant’s residence status and that of her children.

The facts:
THE CIRCUMSTANCES OF THE CASE
A. Asylum proceedings
11. The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion.
12. Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age on 26 December 2007.
13. After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007.
14. On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). On 17 September 2007 the Maltese authorities accepted the request.
15. The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 37 et seq. below).
16. Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 24 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”).
17. On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria.
18. The applicant appealed to the Aliens Appeals Board. In judgment no. 49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm.
19. No administrative appeal on points of law was lodged with the Conseil d’État against that judgment.
B. The applicant’s medical, family and social situation
20. On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment.
21. The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection.
22. In October 2007 a course of ARV treatment (a combination of the drugs Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”).
23. During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving, which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children.
24. On 27 April 2009 the applicant gave birth to a second child by the same father, M.A. (see paragraph 36 below).
25. On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir.
26. On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament.
27. In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 47 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office.
28. On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list.
29. On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms:
“The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems ...”
30. On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa.
31. On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling in Dutch and the monitoring of her own illness.
32. A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows:
“Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child.
...
Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa.
Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups ...
Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.”
33. A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children.
34. In the meantime, on 23 November 2012, the applicant gave birth to a third child. According to the birth certificate, M.A. was again the father.
35. On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 31 above), stating that the applicant was continuing to receive psychosocial support.
36. Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit.
C. Refusal of leave to remain on medical grounds and order to leave the country
37. On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9 ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”).
38. On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months.
39. At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling.
40. On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008.
41. On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows:
“[From] a medical point of view, ... although [AIDS] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.”
42. On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for AIDS was available in Malta and was accessible to non-nationals.
43. The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008.
44. On 11 March 2009 the Aliens Office revoked its decision of 20 August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 16 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh medical opinion from its medical adviser concerning a possible return to Nigeria.
45. On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose.
46. On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion:
“From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.”
47. On the basis of this opinion and the information received from the Nigerian embassy, on 27 September 2010 the Aliens Office refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows:
« [The] medication currently being administered to the applicant is available in Nigeria ... Nigeria has numerous treatment programmes for the applicant’s condition ... The cost is low because the authorities subsidise the medication ... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.”
48. On 20 October 2010 – the asylum proceedings having ended in the meantime with the rejection of the applicant’s asylum application (see paragraph 18 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22 November 2010, worded as follows:
“Pursuant to the decision of ... 20 October 2010, the aforementioned [S.J.] and her children ... are hereby ordered to leave Belgium not later than [20 December 2010] ...
GROUNDS:
The applicant has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded (Act of 15 December 1980, section 7, sub-paragraph 1.2 o ).
If the applicant fails to comply with this order she faces possible removal from the country and detention for that purpose for the time strictly necessary to enforce the measure, in accordance with section 27 of the Act. This is without prejudice to any judicial proceedings that may be brought on the basis of section 75 of the Act.
In accordance with section 39/2, paragraph 2, of the Act of 15 December 1980, an application to set aside the present decision may be made to the Aliens Appeals Board. The application must be lodged within thirty days of notification of the present decision.
A request for a stay of execution may be lodged in accordance with section 39/82 of the Act of 15 December 1980. Except in cases of extreme urgency, the request for a stay of execution and the application to set aside must be submitted in a single document.”
49. On 26 November 2010 the applicant lodged a request under the extremely urgent procedure for a stay of execution of the Aliens Office’s decision of 20 October 2010 and the order to leave the country of 22 November 2010, together with an application to set aside those decisions. She alleged a violation of Articles 3, 8 and 13 of the Convention on account of the risk that she would not have access to the appropriate treatment if she returned to Nigeria and of the infringement of her right to respect for her private and family life.
50. The request for a stay of execution was rejected by the Aliens Appeals Board in judgment no. 51.741 of 27 November 2010. The Board gave the following reasons for its decision:
“... The applicant acted in an alert and diligent manner in lodging a request on the fourth day following notification of the impugned decision, but has not shown by means of specific evidence that a stay of execution of the measure in question granted under the ordinary procedure would be too late. The impugned order states that the applicant has until 22 December 2010 to leave the country. For the time being, the applicant is not being detained with a view to her repatriation and no date has been set for repatriation.
She simply asserts that a stay of execution under the ordinary procedure would be too late since the time taken to process requests is four to five months.
The mere fear that the impugned decision could be enforced at any time after 22 December 2010 does not mean that a stay of execution of the decision could not be granted in good time under the ordinary procedure.
In the present case it has not been shown that there is extreme urgency.
... The Board would refer to the possibility ... of lodging a request for interim measures under the extremely urgent procedure during the proceedings. In that case, [that request and the request for a stay of execution] may be examined jointly.”
51. On 8 December 2010 the applicant lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board judgment of 27 November 2010. She alleged that the risk of serious and irreversible harm in the event of her return to Nigeria, and the presence of her two young children, had not been specifically taken into consideration, and that appeals to the Aliens Appeals Board were ineffective.
52. On 24 December 2010 the time-limit for enforcement of the order to leave the country was extended by the Aliens Office for one month, as follows:
“Grounds: exceptional reason (awaiting decision by European Court of Human Rights).
Please request a further extension each month. The request will be reviewed each month in the light of developments in the case.”
53. On 6 January 2011 the Conseil d’État declared the appeal against the Aliens Appeals Board judgment of 27 November 2010 inadmissible. It held that the arguments relied on by the applicant, even supposing that they were admissible, were in any event manifestly unfounded since the assessment of extreme urgency was a matter solely for the judge hearing the case on the merits and the applicant could still submit a request for a stay of execution under the ordinary procedure, together with a request for interim measures made during the proceedings. She therefore had effective remedies available to her.
54. According to the information in the file, the application to set aside the decisions of the Aliens Office (see paragraph 49 above) is still pending before the Aliens Appeals Board. In reply to a letter from the applicant asking whether a hearing date had been set, the registry of the Aliens Appeals Board informed her in a letter of 14 May 2012 that the Board was making every effort to ensure that her case was dealt with as quickly as possible.
55. On 11 February 2013, following a request from the Government made in the context of the proceedings before the Court, the Aliens Office’s medical adviser prepared a fresh report on the applicant’s medical situation on the basis of a medical certificate issued by the University Hospital in 2010 (see paragraph 25 above). The report noted that the applicant was receiving daily treatment using a combination of three drugs (Kivexa, Telzir and Norvir). The report continued as follows:
“It appears from the medical certificate of 25 November 2010 that the applicant is making good progress and that her immunity has stabilised at 447 with a viral load that was undetectable on 5 May 2010. We have no other medical certificates providing clinical and immunological data after November 2010 and/or concerning a change in the applicant’s medical condition or her medication.
The aforementioned medical certificate of 25 November 2010 does not show that travel was or is strongly contra-indicated for this patient [or that she] is in need of medical attention.
As regards the availability of medication and monitoring in the patient’s country of origin, Nigeria, the following sources were consulted (this information has been added to the patient’s administrative file):
- information from the MedCOI database ... of local doctors working in the patient’s country of origin who work on a contract basis for the medical advisory service of the Dutch Ministry of the Interior, dated 1 June 2011 ... and 28 March 2012...;
- information from the site http://www.abuth.org ...;
- information from the site http://www.buth.org ...;
- information from the site http://www.who.int/selection_medicines/country_lists, (...), containing a list of the main drugs available in Nigeria in 2010.
It is clear from this information that drug therapy using a combination of abacavir, lamivudine and protease inhibitors is available in Nigeria. The information shows that the current availability of fosamprenavir in Nigeria is not confirmed, but that other protease inhibitors are available as an alternative, for instance a preparation combining lopinavir and ritonavir...
Laboratory tests (to determine CD4 count) are available in Nigeria. Treatment/monitoring by a specialist in internal medicine is also available in Nigeria.”

Relevant law and the Court's assessment:
THE LAW
56. On 26 August 2014 the Court received a proposal for a friendly settlement from the Government providing as follows:
“The applicant’s case is ... characterised by strong humanitarian considerations weighing in favour of regularising her residence status and that of her children on the basis of section 9 bis of the Aliens Act of 15 December 1980.”
57. On 11 September 2014 the Court received the following reply from the applicant:
“[The applicant] has decided to accept the proposal made by the Belgian State, subject to certain conditions.
Firstly, that she and her three children be granted unconditional and indefinite leave to remain.
Secondly: [she] also claims compensation for the pecuniary and non-pecuniary damage sustained on account of the Belgian State’s decision finding her application for regularisation of her status under section 9 ter of the Aliens Act to be unfounded and on account of the order to leave the country.
...
[A] sum of 7,000 euros ex aequo et bono would cover the suffering undergone by the [applicant] as a result of the Belgian State’s decision.
Thirdly: [the applicant] will agree to the striking-out of the case from the Court’s list only once the residence permit has been issued to her in person.
...”
58. On 17 September 2014 the Government informed the Court that they agreed to the conditions stipulated by the applicant. They specified that the applicant’s residence status, and that of her children, would be regularised immediately and unconditionally on an indefinite basis.
59. The Court notes that, on 6 January 2015, the applicant and her children were issued with residence permits granting them indefinite leave to remain.
60. The Court further considers that the settlement is based on respect for human rights as defined in the Convention and its Protocols (Article 37 § 1 in fine of the Convention and Rule 62 § 3 of the Rules of Court).
61. Accordingly, it is appropriate to strike the case out of the list in accordance with Article 39 § 3 of the Convention.