Under Belgian law, a foreign national residing in Belgium who could prove his identity and who suffered from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there was no appropriate treatment in his country of origin or in the country in which he resided was entitled to apply for leave to reside in Belgium. The applicant successfully submitted such an application.
However, a later application for payment to him of disability allowances was rejected and he appealed. The appellate court referred a number of questions to the Court of Justice of the European Union (CJEU) arising out of his case.
The CJEU considered that the appellate, referring court was asking, in essence, whether Articles 28 and 29 of the Qualification Directive, read in conjunction with Articles 2(e), 3, 15 and 18 thereof, were to be interpreted as requiring a Member State to grant the social welfare and health care benefits provided for in those measures to a third country national who had been granted leave to reside on its territory under national legislation like that at issue in the proceedings. It held that Member States were not so required by the legislation.
The CJEU considered the various categories of “serious harm” set out in Articles 15(a) to (c) of the Qualification Directive. It held that any risks faced by such a person of a deterioration in his state of health arising out of a situation where he was not intentionally deprived of health care, were not covered by Article 15(a) and (c) of the Qualification Directive 2004/83, because “serious harm”, as defined by those provisions, consisted of the “death penalty or execution” and “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict,” respectively.
Nor, it held, were such risks covered by Article 15(b) of the Qualification Directive 2004/83, under which “serious harm” constituted “torture, inhuman or degrading treatment.” It held that that did not encompass a situation where appropriate treatment was not available in the person’s country of origin, unless he was to be intentionally deprived of health care there.
It noted that Article 3 of the Qualification Directive allowed Member States to introduce or retain more favourable standards for determining, inter alia, who qualified as a person eligible for subsidiary protection, insofar as those standards were compatible with the Directive. However, it held that the latter reservation precluded a Member State from introducing or retaining provisions granting subsidiary protection status provided for in the Directive to a third country national suffering from a serious illness on the ground that there is a risk that that person’s health would deteriorate as a result of the fact that adequate treatment was not available in his country of origin, as such provisions would, it said, be incompatible with the directive.
The CJEU held that, in the light of those considerations, it would be contrary to the general scheme and objectives of the Qualification Directive to grant refugee status and subsidiary protection status to third country nationals in situations which had no connection with the rationale for international protection.