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 submitted such an application on the basis that he was suffering from a particularly serious illness. His application 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 noted that the referring court was asking, in essence, whether Directives 2003/9, 2004/83 and 2005/85, taken, where appropriate, in conjunction with Articles 1 to 4, 19(2), 20, 21 and 47 of the Charter of Fundamental Rights, were to be interpreted as meaning that a Member State whose authorities had adopted a decision refusing a residence application of a third country national under legislation akin to that at issue in the proceedings, and ordering him to leave its territory, was obliged to provide for a remedy with suspensive effect in respect of that decision and to make provision for his basic needs to be met pending a ruling on his appeal.
The CJEU noted that, on foot of its judgment in C 542/13 M’Bodj, applications of the sort made by the applicant did not constitute applications for international protection within the meaning of Article 2(g) of the Qualification Directive (Directive 2004/83/EC). It observed that the parties accepted that the decision under appeal was a “return decision” within the meaning of Article 3(4) of Directive 2008/115.
It held that any remedy available to the applicant would have to be effective, as per Article 47 of the Charter. It noted that, under Article 19(2) of the Charter, no one was to be removed to a State where there was a serious risk that he would be subjected to inhuman or degrading treatment. In interpreting that provision, it had regard to caselaw of the European Court of Human Rights to the effect that, whilst non-nationals subject to a decision authorising their removal could not, in principle, claim any entitlement to remain in the territory of a State in order to continue to benefit from medical, social or other forms of assistance and services provided by that State, a decision to remove such a person suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness were inferior to those available in that State, could well raise an issue under Article 3 ECHR in very exceptional cases, where the humanitarian grounds against removal were compelling.
Bearing that in mind, it held that, in such exceptional cases, Member States were precluded from proceeding with such removal, having regard to both Article 5 of Directive 2008/115 and Article 19(2) of the Charter.
It further held that, in order to have an effective appeal against a return decision whose enforcement might expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health, he had to be provided with a remedy with suspensive effect, which would ensure that the decision was not enforced before a competent authority had the opportunity of examining an objection alleging infringement of Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter. It held further that Member States were required to provide such a person the safeguards, pending return, established in Article 14 of Directive 2008/115, including appropriate medical treatment.
Applications for residence made by third country nationals in the EU Member States which are based on the ill-health of the applicant and on the existence of lower standards of healthcare in his or her country of origin than in the relevant Member State are not encompassed by the Qualification Directive, unless it can be shown that there would be a denial of medical treatment to the applicant in the country of origin. Refusals of such applications are capable of being classed as “return decisions” within the meaning of Directive 2008/115 and an effective remedy, including, where appropriate, with suspensive effect pending the final determination of an appeal or review, must be provided against them.