A right of residence on medical grounds in the EU: what does the ECJ say?

Nov 25, 2022

A third country national who is suffering from a serious illness may not be removed if, in the absence of appropriate medical treatment in the receiving country, that national risks being exposed to a real risk of a rapid, significant and permanent increase in the pain linked to that illness. On the other hand, it does not require the Member State on whose territory a third-country national is staying illegally to grant that national a right of residence where he or she cannot be the subject of a return decision or a removal order because there are substantial grounds for believing that he or she would be exposed, in the receiving country, to a real risk of a rapid, significant and permanent increase in the pain caused by the serious illness from which he or she suffers.

With Case C-69/21 of 22 November 2022, the ECJ clarified whether EU law precludes a return decision from being taken or a removal order from being made in situations as descried below and whether Member States are required to grand permit of stay in such situations.

Facts of the Case

A Russian national, who suffers from a rare form of blood cancer currently is receiving treatment in the Netherlands for his illness. His medical treatment consists mainly of the administration of medicinal cannabis for analgesic purposes, which is not permitted in Russia. He has requested several times for asylum in the Netherlands and the last of which was rejected in 2020, which included also the decision to return him. He brought an action before the Court claiming that 1) a permit of stay should be issued for him; and 2) his removal should be postponed indicating that the analgesic treatment based on medicinal cannabis, which he receives in the Netherlands, is so essential to him that he would no longer be able to lead to a decent life if that treatment was discontinued.

EU Legal Context

  • Directive 2008/115/EC 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
  • EU Charter of Fundamental Rights
    • Art. 1: Human dignity is inviolable. It must be respected and protected.
    • Art. 4: No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
    • Art. 7: Everyone has the right to respect for his or her private and family life, home and communications..
    • Art. 19 (2): No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

Questions referred to the ECJ

The referring court, asked in essence:

  1. whether Directive 2008/115, read in conjunction with Articles 1 and 4, as well as Article 19(2) of the Charter, must be interpreted as precluding a return decision from being taken or a removal order from being made in respect of a third-country national who is staying illegally on the territory of a Member State and suffering from a serious illness, and who would be exposed, in the third country to which he would be removed, to the risk of a significant increase in the pain caused by that illness, on account of the only effective analgesic treatment being prohibited in that country. Moreover, whether a Member State may provide for a strict period during which such an increase must be likely to materialise in order for that return decision or that removal order to be precluded.
  2. whether Directive 2008/115, read in conjunction with Articles 1, 4 and 19 of the Charter, must be interpreted as precluding the consequences of the removal order, in the strict sense, on the state of health of a third-country national from being taken into account by the competent national authority solely in order to examine whether that third-country national is able to travel.
  3. whether Directive 2008/115, read in conjunction with Articles 7 as well as Articles 1 and 4 and of the Charter, must be interpreted as meaning that the state of health of a third-country national who is staying illegally on the territory of a Member State and the treatment which that national is undergoing on that territory, on account of the serious illness from which he or she is suffering, must be taken into account by that Member State in order to assess whether, in accordance with the right to respect for his or her private life, a right of residence on the territory of that Member State must be granted or the date of his or her removal must be postponed.

Finding of the ECJ

The ECJ found out that the Directive 2008/115/EC read in conjunction with Articles 1, 4 and 19(2) of the Charter must be interpreted as precluding:

  • a return decision from being taken or a removal order from being made in respect of a third-country national who is staying illegally on the territory of a Member State and suffering from a serious illness, where there are substantial grounds for believing that the person concerned would be exposed, in the third-country to which he or she would be removed, to a real risk of a significant, permanent and rapid increase in his or her pain, if he or she were returned, on account of the only effective analgesic treatment being prohibited in that country. A Member State may not lay down a strict period within which such an increase must be liable to materialise in order to preclude that return decision or that removal order.
  • the consequences of the removal order in the strict sense on the state of health of a third-country national from being taken into account by the competent national authority solely in order to examine whether he or she is able to travel.

And the Directive 2008/115/EC read in conjunction with Articles 1, 4 and 7 of the Charter must be interpreted as meaning that:

  • it does not require the Member State on whose territory a third-country national is staying illegally to grant that national a right of residence where he or she cannot be the subject of a return decision or a removal order because there are substantial grounds for believing that he or she would be exposed, in the receiving country, to a real risk of a rapid, significant and permanent increase in the pain caused by the serious illness from which he or she suffers;
  •  the state of health of that national and the care he or she receives on that territory, on account of that illness, must be taken into account, together with all the other relevant factors, by the competent national authority when it examines whether the right to respect for the private life of that national precludes him or her being the subject of a return decision or a removal order;
  •  the adoption of such a decision or measure does not infringe that right on the sole ground that, if he or she were returned to the receiving country, that national would be exposed to the risk that his or her state of health deteriorates, where such a risk does not reach the severity threshold required under Article 4 of the Charter.

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