Opinion of the Advocate General — ECLI:EU:C:2022:451
Date: 2022-06-09
Language of the case: Dutch
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
4 February 2021 
Referring court:  
Rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (Netherlands) 
Date of the decision to refer:  
4 February 2021 
Applicant:  
X 
Defendant:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject matter of the main proceedings 
The dispute in the main proceedings concerns the question whether X must be 
granted a residence permit or must be permitted to postpone departure because of 
serious medical problems and what the medical consequences will be if the 
treatment which X is undergoing (pain relief with medicinal cannabis) cannot be 
continued because he must comply with his departure obligation under the 
Vreemdelingenwet 2000 (Law on foreign nationals of 2000). 
Subject matter and legal basis of the request 
Interpretation of Articles 1, 4, 7, and 19 of the Charter of Fundamental Rights of 
the European Union 
Having regard to Directive 2008/115/EC, the Rechtbank (District Court) requests 
the interpretation of Article 19(2) of the Charter, read in conjunction with 
Articles 1 and 4 of the Charter, in order to assess whether a foreign national must 
be granted a postponement of departure because of his serious medical problems. 
In addition, the Rechtbank requests the interpretation of Article 7 of the Charter in 
EN 
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order to be able to assess whether medical treatment in a Member State is an 
aspect of private life which must be taken into account when assessing an 
application for a residence permit. 
Questions referred for a preliminary ruling 
I Can a significant increase in pain intensity due to a lack of medical 
treatment, while the clinical picture remains unchanged, constitute a situation 
which is contrary to Article 19(2) of the Charter of Fundamental Rights of the 
European Union (‘the Charter’), read in conjunction with Article 1 of the Charter 
and Article 4 of the Charter, if no postponement of the departure obligation 
resulting from Directive 2008/115/EC (‘the Return Directive’) is permitted? 
II Is the setting of a fixed period within which the consequences of the lack of 
medical treatment must materialise in order to constitute a medical obstacle to an 
obligation to return resulting from the Return Directive compatible with Article 4 
of the Charter, read in conjunction with Article 1 of the Charter? If the setting of a 
fixed period is not contrary to EU law, is a Member State then permitted to set a 
general period that is the same for all possible medical conditions and all possible 
medical consequences?  
III Is a determination that the consequences of expulsion should be assessed 
solely in terms of whether, and under what conditions, the foreign national can 
travel, compatible with Article 19(2) of the Charter, read in conjunction with 
Article 1 of the Charter and Article 4 of the Charter, and with the Return 
Directive? 
IV Does Article 7 of the Charter, read in conjunction with Article 1 of the 
Charter and Article 4 of the Charter, and in the light of the Return Directive, 
require that the medical condition of the foreign national and the treatment he is 
undergoing in the Member State be assessed when determining whether private 
life considerations should result in permission to stay being granted? Does 
Article 19(2) of the Charter, read in conjunction with Article 1 of the Charter and 
Article 4 of the Charter, and in the light of the Return Directive, require that 
private life and family life, as referred to in Article 7 of the Charter, be taken into 
account when assessing whether medical problems may constitute an obstacle to 
expulsion?  
Provisions of European Union law relied on 
Directive 2008/115/EG 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 (Return Directive): Articles 5, 6, 
and 9 
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Charter of Fundamental rights of the European Union: Articles 1, 4, 7, 19, 51, and 
52 
Provisions of national law relied on 
Vreemdelingenwet 2000 (Law on foreign nationals of 2000; ‘Vw’): Article 64  
Vreemdelingencirculaire 2000 (Circular on foreign nationals; ‘Vc’): paragraph 
A3/7 
Succinct presentation of the facts and procedure in the main proceedings  
1 X was born in 1988 and has Russian nationality. His country of origin is Russia. 
At the age of 16 years, he developed polycythaemia vera, a rare form of blood 
cancer. X is being treated in the Netherlands with medicinal cannabis for pain 
relief. Medicinal cannabis is not legally available in Russia.  
2 On 19 May 2016, X lodged an application for asylum in the Netherlands for the 
second time. X based his asylum application on the fact that he suffers from 
polycythaemia vera, for which he was treated with regular medicines in his 
country of origin. X claims that he suffered from the side effects of those 
medicines and that cannabis provides better pain relief. He grew cannabis plants 
for medicinal use and as a result experienced such problems that he requires 
protection.  
3 By decision of 29 March 2018, the staatssecretaris (‘State Secretary’) refused X’s 
asylum application. According to the State Secretary, the problems which X 
claims to have experienced because of the cultivation of cannabis for personal use 
are not credible. In addition, the State Secretary decided that X was not eligible 
for a residence permit on ordinary grounds and that no postponement of departure 
would be granted on the grounds of Article 64 Vw 2000 (state of health).  
4 On 20 December 2018, the Rechtbank partially upheld X’s appeal against that 
decision and partially annulled the decision. This ruling was upheld on appeal. 
This established in law that X had no claim to refugee status or to subsidiary 
protection. The State Secretary did, however, have to make a fresh ruling on the 
claim invoking Article 8 of the Convention for the Protection of Human Rights 
and Fundamental Freedoms (‘ECHR’) and on the request for the application of 
Article 64 Vw.  
5 By decision of 19 February 2020, the State Secretary made a fresh ruling on X’s 
second asylum application. According to this decision, X is not eligible for an 
ordinary residence permit of limited duration on the basis of Article 8 ECHR and 
he was not granted a postponement of departure on the grounds of Article 64 Vw.  
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Essential arguments of the parties in the main proceedings 
6 X claims that he should be granted a residence permit on the basis of Article 8 
ECHR or that he should have been granted a postponement of departure on the 
basis of Article 64 Vw. He substantiates these claims on the basis of his medical 
situation, the treatment he is undergoing in the Netherlands and the consequences 
if he cannot continue this treatment due to his return to Russia.  
7 According to X, treatment with medicinal cannabis can relieve the pain by about 
70%. This treatment is so essential to him that, if it were to be discontinued, he 
would not be able to live in a dignified manner, so that residence must be granted 
on the basis of Article 8 ECHR. Without cannabis he would not be able to sleep or 
eat because of the pain, which would have considerable physical and 
psychological consequences. X states that in that case he would become depressed 
and suicidal. The failure to provide pain relief would therefore result in a short-
term medical emergency.  
8 The State Secretary took the position that X’s treatment in the Netherlands was 
insufficient to constitute private life within the meaning of Article 8 ECHR, so 
that he did not have to be granted residence on that ground. If X is no longer able 
to take medicinal cannabis for pain relief, this does not give rise to any medical 
emergency, according to the State Secretary. Under certain conditions, it is 
possible for X to travel. X therefore does not qualify for a postponement of 
departure on medical grounds pursuant to Article 64 Vw.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The dispute in the main proceedings concerns the question whether the applicant 
should be granted residence or postponement of departure because of his state of 
health and the medical consequences of discontinuing his treatment because of the 
necessity to comply with his departure obligation.  
10 Article 64 Vw and paragraph A3/7 Vc lay down the framework for the assessment 
of whether a foreign national can obtain a postponement of his departure 
obligation on the grounds of serious medical problems and thereby acquire a right 
to stay legally. The State Secretary may grant a postponement of departure under 
Article 64 Vw if the foreign national is unable to travel on medical grounds or if 
there is a real risk of an infringement of Article 3 ECHR on medical grounds. 
According to that assessment framework, there is only a real risk of an 
infringement of Article 3 ECHR if BMA 1 advice shows that failure to provide 
medical treatment will in all probability result in a medical emergency and 
 
1 The Bureau Medische Advisering (Medical Advisors Office; ‘BMA’) forms part of the 
Ministerie van Veiligheid en Justitie (Ministry of Security and Justice) and advises its principal, 
the Immigratie- en Naturalisatiedienst (Immigration and Naturalisation Service; ‘IND’), at the 
latter’s request, on medical issues concerning foreign nationals in relation to decisions pursuant 
to the Vreemdelingenwet 2000.  
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treatment is not available or not accessible to the foreign national in the country of 
origin.  
11 A medical emergency is understood to mean a situation of which it is certain, on 
the basis of current medical-scientific insights, that a failure to provide treatment 
will result, within a period of three months, in death, invalidity or some other form 
of serious mental or physical damage. On the basis of judgements of the European 
Court of Human Rights (‘ECtHR’), national case-law assumes that there may be 
an infringement of Article 3 of the ECHR if a seriously ill foreign national, on 
being removed, runs a real risk of a serious, rapid and irreversible deterioration in 
his health, resulting in intense suffering or a significant reduction in his life 
expectancy, as a result of the absence of adequate treatment in the country of 
origin or a lack of access to such treatment.  
12 X substantiated his claim that his medical problems should lead to a postponement 
of departure with letters from his doctors. These letters show that he suffers 
intense pain that is just bearable when treated with cannabis and that alternative 
painkilling medication is contraindicated.  
13 In response, the State Secretary asked the BMA for advice. Among other things, 
BMA advised that the efficacy of cannabis as a medicine has not been 
demonstrated, that cannabis thus is not a cure and that therefore it is not possible 
to judge what would happen if the medicine could no longer be used because it 
was not available in Russia as a painkiller. Because the efficacy of cannabis as a 
medicine has not been demonstrated, it cannot be said that the use of cannabis 
prevents a short-term medical emergency. Furthermore, according to the BMA, 
there are enough alternatives to cannabis to enable a medically sound choice to be 
made.  
14 It has been established that treatment with medicinal cannabis or adequate 
alternative treatments to combat the pain are not available to X in his country of 
origin. That means that X’s treatment, as far as pain relief is concerned, will be 
discontinued if he is not granted a postponement of departure. The next question is 
what the medical consequences are of discontinuing the treatment with medicinal 
cannabis. From the information provided by the doctors treating him, the 
Rechtbank provisionally concludes that the clinical picture will remain unchanged 
if no pain relief is provided.  
15 Before the Rechtbank appoints a medical expert to assess what medical 
consequences are to be expected, and over what period, if the cannabis treatment 
is discontinued, it is necessary to ask the Court of Justice to interpret the scope of 
the protection afforded to seriously ill foreign nationals by Articles 1, 4, and 19 of 
the Charter. While it remains unclear to the Rechtbank whether increased 
suffering per se can preclude expulsion, over what period the increase in suffering 
must materialise in order to preclude expulsion, and whether possible 
psychological consequences due to an increase in pain must be included in the 
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assessment of whether a medical emergency exists if X fulfils his departure 
obligation, it is not useful to ask an expert for advice in this regard.  
16 Article 52(3) of the Charter provides that, in so far as that Charter contains rights 
which correspond to rights guaranteed by the ECHR, the meaning and scope of 
those rights will be the same as those laid down by the said Convention. It appears 
from the Explanations relating to the Charter that Article 1 of the Charter 
constitutes the real basis of fundamental rights, that Article 4 of the Charter 
corresponds to Article 3 of the ECHR, that Article 7 of the Charter corresponds to 
Article 8 of the ECHR and that Article 19(2) of the Charter incorporates the case-
law of the ECtHR regarding Article 3 of the ECHR.  
First question 
17 The Rechtbank is not aware of any case-law of the Court of Justice which 
interprets Article 19(2) of the Charter, read in conjunction with Articles 1 and 4 of 
the Charter, with a view to assessing whether there can be considered to be 
medical obstacles to expulsion if the clinical picture does not worsen if the 
medical treatment is not available in the country of origin, but there is a 
significant increase in pain. It would like further elucidation of the protection that 
a seriously ill foreign national can derive from these provisions.  
18 The Rechtbank is of the view that a significant increase in the intensity of 
suffering resulting from the cessation of pain relief without this being the result of 
‘a serious, rapid and irreversible decline in his or her state of health’ (ECtHR 
judgment of 13 December 2016, Paposhvili v Belgium, CE: 
ECHR:2016:1213JUD00417381, paragraph 183), in X’s case, therefore, of a 
worsening of the clinical picture of polycythaemia vera, should fall within the 
scope of the protection offered by the Charter to a seriously ill foreign national.  
Second question 
19 According to the settled case-law of the Afdeling Bestuursrechtspraak of the Raad 
van State (Administrative Jurisdiction Division of the Council of State; ‘ABRvS’), 
only the medical consequences that occur within a period of three months after 
discontinuation of the medical treatment are to be taken into account when 
assessing whether a medical emergency will arise if the treatment is discontinued. 
According to the ABRvS, this criterion is in line with the requirement of a rapid 
decline of the person’s state of health as laid down in paragraph 183 of the 
Paposhvili judgment. However, the ABRvS has never substantiated why a 
maximum period has been set and why this period has been set at three months. In 
the Paposhvili judgment, the ECtHR did not explicitly set a deadline, but ruled 
that ‘the impact of removal on the person concerned must be assessed by 
comparing his or her state of health prior to removal and how it would evolve 
after transfer to the receiving State’ (paragraph 188), which only refers to a the 
health situation evolving if medical treatment is discontinued.  
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20 The Rechtbank therefore wishes to ascertain whether a fixed period within which 
the consequences of the discontinuation of medical treatment must materialise is 
compatible with EU law, and whether the Member States, without differentiating 
on the basis of the nature of the medical condition and the medical treatment, may 
determine a period within which the medical consequences must materialise in 
order for the foreign national to be granted a postponement of departure and, 
consequently, the right to stay.  
Third question 
21 In national legal practice, the medical consequences of expulsion are only 
assessed by examining the conditions under which the journey can take place. The 
question of whether transfer or expulsion as such will have medical consequences 
is not considered in relation to national law, policy and the settled case-law of the 
ABRvS when assessing whether expulsion is contrary to the Charter or the ECHR.  
22 In paragraph 188 of the Paposhvili judgment, however, the ECtHR considered 
that the consequences of the removal of a person must be assessed by comparing 
his state of health prior to removal with how it would evolve after removal. That 
seems to indicate that all the medical consequences of the transfer must be taken 
into account when assessing whether a medical emergency could arise from the 
removal and not only whether the medical consequences can be mitigated by 
imposing conditions on the journey.  
23 In the judgment of 16 February 2017, C. K. and Others, C-578/16 PPU, 
EU:C:2017:127, the Court of Justice held, in the context of a Dublin transfer, that 
it is not sufficient for the authorities to consider only the consequences of 
physically transporting the person concerned from one Member State to another, 
but all the significant and permanent consequences that might arise from the 
transfer must be taken into consideration (paragraph 76). The present case 
concerns return to the country of origin rather than transfer to another Member 
State, but the Rechtbank does not see why the medical consequences of the mere 
transfer in this case should be disregarded when assessing whether a foreign 
national with very serious medical problems can be refused the right to stay.  
24 However, according to the interpretation of the judgment in C. K. and Others by 
the ABRvS, this point is not taken into account in the assessment. The Rechtbank 
would like to ascertain from the Court of Justice whether this national assessment 
framework is compatible with Article 4 of the Charter.  
Fourth question 
25 Also at issue in the present proceedings is whether the medical condition of a 
foreign national and the medical treatment undergone in a Member State can 
constitute private life deserving of protection within the meaning of Article 7 of 
the Charter and Article 8 of the ECHR, as claimed by X.  
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26 In the judgment of 6 May 2001, Bensaid v. United Kingdom, 
CE:ECHR:2001:0206JUD004459998, the ECtHR considered that it cannot be 
ruled out that a situation that does not reach the threshold of Article 3 of the 
ECHR may nevertheless qualify as a violation of Article 8 of the ECHR if the 
right to stay is not (any longer) granted. In that context, the ECtHR held that 
‘private life’ is a term not susceptible to exhaustive definition and that mental 
health must also be regarded as a crucial part of private life within the meaning of 
Article 8 of the ECHR.  
27 Unlike the ABRvS, the Rechtbank is of the opinion that it follows from the 
Paposhvili judgment that Article 8 ECHR also plays a role in the assessment of 
whether medical reasons preclude expulsion. In addition, in the asylum procedure, 
an automatic check must be made as to whether the foreign national is entitled to 
an ordinary residence permit on the grounds of Article 8 ECHR if he or she is not 
eligible for refugee status or subsidiary protection. The Rechtbank therefore seeks 
further clarification as to whether, if the foreign national wishes to acquire the 
right to stay on the basis of his serious medical problems and the medical 
treatment he is undergoing in the Member State for that reason, the authorities 
have to take medical circumstances into account as an aspect of private life when 
assessing whether the foreign national is entitled to stay on the grounds of 
Article 8 ECHR, and whether they must take these medical circumstances into 
account as an aspect of private life in any proceedings in which the foreign 
national applies for the postponement of departure.  
28 The answer to the fourth question referred for a preliminary ruling is important 
because the granting of a permit or authorisation on the basis of private life gives 
rise to a legally more robust right of residence than the postponement of departure 
on the basis of Article 64 Vw.  
Proposed answers 
29 The referring court suggests that the Court of Justice consider answering the 
questions referred for a preliminary ruling follows: 
‘I Having regard to Article 19(2) of the Charter, read in conjunction with 
Article 1 of the Charter, Article 4 of the Charter, and the Return Directive, 
Member States are obliged to consider all the medical consequences of the 
termination of the medical treatment being undergone by a seriously ill foreign 
national in the Member State, even if the clinical picture itself remains unchanged, 
when assessing whether there are medical obstacles of such a nature that a 
seriously ill foreign national is not subject to the departure obligation. In 
appropriate cases, the departure obligation must be suspended or permission must 
be granted to (temporarily) not comply with a departure obligation so that the 
right to stay legally is thus acquired.  
II Having regard to Article 19(2) of the Charter, read in conjunction with 
Article 1 of the Charter, Article 4 of the Charter, and the Return Directive, 
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Member States, when assessing the existence of medical obstacles to expulsion, 
are obliged to assess the specific circumstances of each case, and determining that 
medical consequences which become apparent after a general maximum period 
may be disregarded, is not compatible with the absolute nature of Article 4 of the 
Charter. 
III Having regard to Article 19(2) of the Charter, read in conjunction with 
Article 1 of the Charter, Article 4 of the Charter, and the Return Directive, 
Member States are obliged to take into account all the medical consequences 
resulting from the expulsion in the assessment of whether a medical emergency 
could arise and a very seriously ill foreign national must, because of medical 
obstacles, be allowed to (temporarily) not comply with a departure obligation and 
so that the right to stay legally is thus acquired.  
IV Having regard to Article 19(2) of the Charter, read in conjunction with 
Article 1 of the Charter, Article 4 of the Charter, Article 7 of the Charter, and the 
Return Directive, the Member States are not permitted to determine that private 
life and family life, as referred to in Article 7 of the Charter, may never be taken 
into account in the assessment of whether there are medical obstacles to 
expulsion. If a seriously ill foreign national applies for permission to stay, and not 
just for a postponement of departure on the grounds of private life, and bases this 
on his medical problems and medical treatment, the authorities should assess 
whether such permission must be granted on the basis of Article 7 of the Charter 
and Article 8 ECHR.’