Information Note on the Court’s case-law 55

July 2003

Arcila Henao v. the Netherlands (dec.) - 13669/03

Decision 24.6.2003 [Section II]

Article 3

Expulsion

Expulsion to country of origin of an HIV-positive drug offender: inadmissible

The applicant is a Colombian national who was convicted of a drugs offence in 1997. On the basis of that conviction he was declared an undesirable alien, entailing a 10-year excl usion order, and expelled. He returned to the Netherlands in 1998 and was convicted of a new drugs offence. Whilst serving the two-year prison sentence, the applicant was found to be HIV-positive. Prior to his release from prison, he requested the lifting of the order declaring him an undesirable alien and applied for a residence permit on the basis of the medical treatment which he required. The residence permit was not granted since, as long as the decision declaring him an undesirable alien was valid, th e applicant was ineligible for residence. Despite a number of reports from a Medical Advice Bureau indicating that if treatment was stopped a health relapse was likely, and that possible delays in treatment could be expected in Colombia, the State Secretar y held that it was not possible to lift the exclusion order (since the applicant had not resided out of the Netherlands for 10 years and had re-offended), and concluded that as treatment was available in Colombia there was no life-threatening situation out weighing public order considerations. Two appeals filed by the applicant were rejected by the Regional Court, which held that only in cases of advanced, incurable and life-threatening disease and when no medical facilities were available in the country of destination could expulsion be regarded as contrary to Article 3.

Inadmissible under Article 3: Although the situation in Colombia would be less favourable for the applicant, his condition did not appear to have reached an advanced or terminal stage, and t reatment was in principle available in Colombia. The circumstances were not of such an exceptional nature that expulsion would amount to treatment proscribed by Article 3: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This sum mary by the Registry does not bind the Court.

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