Published on 21 March 2022

FOURTH SECTION

Application no. 27091/21 Samuel GARDEA against the Netherlands lodged on 18 May 2021 communicated on 1 March 2022

SUBJECT MATTER OF THE CASE

The applicant is a Liberian national infected with HIV. He has been staying in the Netherlands without a residence status since 1994. As of 2010 he had been granted deferments of expulsion ( uitstel van vertrek ) for medical reasons pursuant to section 64 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), because the necessary treatment for HIV was not available in Liberia according to the Medical Advisor’s Office ( Bureau Medische Advisering ; “BMA”) of the Immigration and Naturalisation Service.

In August 2018 the applicant applied for a residence permit for the purpose of receiving medical treatment. The Deputy Minister of Justice and Security granted another deferment of expulsion until October 2019 but refused to grant a residence permit because in view of criminal offences committed by the applicant of which he had been convicted in 2001, 2008 and 2010 she considered him a threat to public order within the meaning of applicable domestic law.

In April 2020 the Deputy Minister rejected a new application for deferment of expulsion because the BMA reported that treatment was now available in Liberia. She refused to assess the practical accessibility of treatment for the applicant, because he had never proven his identity and nationality by means of official, unexpired documents. Without such information, so the Deputy Minister held, it was not possible to assess individual accessibility.

The applicant appealed in both cases. In the appeal concerning the refusal to grant a residence permit, he invoked his right to private life under Article 8 of the Convention. He argued, inter alia , that he had committed the offences that were being held against him a long time ago and that he no longer posed a threat to public order. As to the refusal to grant deferment of expulsion, he argued that the availability of treatment as suggested by the BMA was not dependable in general, and a fortiori not during the Covid-19 pandemic that had broken out after the issuance of the BMA’s report. He further argued that he would not have access to the treatment suggested by the BMA because it was too expensive. In support of his arguments the applicant provided, inter alia , information from general sources including the WHO, as well as correspondence with medical facilities named by the BMA. As to his identity and nationality, he submitted that this had never been an issue when he had lodged his previous applications for deferment.

The Regional Court of The Hague dismissed both appeals. Stating that it exercised due reticence, the court found that the Deputy Minister had not been wrong to take the position that, despite the lapse of time since the offences had been committed, the result of the balancing exercise required by Article 8 was to the applicant’s detriment. As regards deferment of expulsion, the court found that the applicant had not sufficiently substantiated the unavailability of any necessary medication in Liberia. It considered that the Deputy Minister’s decision, including her considerations about the applicant’s identity and nationality, was in line with the Court’s judgment in Paposhvili v. Belgium ([GC], no. 41738/10, 13 December 2016). The Administrative Jurisdiction Division of the Council of State rejected the applicant’s further appeal on summary reasoning on 12 March 2021.

The applicant complains that, if removed without a proper examination of the availability of medical treatment in Liberia and of practical accessibility of such treatment for him, there would be a violation of Article 3 of the Convention, and under Article 8 about the failure to allow him to reside in the Netherlands.

QUESTIONS TO THE PARTIES

1. Having regard to the applicant’s complaint, would his removal to Liberia amount to a violation of Article 3 of the Convention?

In particular, in view of the applicant’s claims that the required treatment and/or medication would not be available and/or accessible in Liberia and the documents that he has submitted in support of these claims, have the domestic authorities observed their obligation under Article 3 to protect the applicant by establishing an appropriate procedure allowing an examination of the applicant’s fears to be carried out, as well as an assessment of the risks he would face if removed to the receiving country (see Paposhvili v. Belgium [GC], no. 41738/10, §§ 184-193, 13 December 2016, and Savran v. Denmark [GC], no. 57467/15, § 130, 7 December 2021)?

2. Did the refusal to grant the applicant a residence permit constitute a violation of his right to respect for his private life as guaranteed by Article 8 of the Convention?

In particular, have the competent authorities and the domestic courts, when conducting the Article 8 proportionality assessment, carefully examined the facts, applied the human rights standards consistently with the Convention and the Court’s case-law (see, inter alia , Üner v. the Netherlands [GC], no. 46410/99 §§ 57-58, 5 July 2005, and Pormes v. the Netherlands , no. 25402/14, §§ 51-58, 28 July 2020), and adequately balanced the applicant’s personal interests against the general public interest (see Ndidi v. United Kingdom , no. 41215/14, § 76, 14 September 2017, and Unuane v. United Kingdom , no. 80343/17, § 87, 24 November 2020)?