CONCURRING OPINION OF JUDGE LEMMENS, JOINED BY JUDGE NUSSBERGER

(Translation)

I agree with the judgment on all points. However, I would like to add a few thoughts on the issue of the violation of Article 3 of the Convention.

The majority based its analysis mainly on the judgment in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), in which the Grand Chamber of the Court adopted the following reasoning: “The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling ” (§ 42, italics added; see paragraphs 119 and 120 of the present judgment).

We concluded, basing our findings expressly on these principles – which we considered ourselves bound to follow in the present case (see paragraph 124) – that the threshold of severity required in order for Article 3 to apply had not been attained in this case.

Like some of my former and current colleagues, I find the level at which this threshold is situated to be very high. In the case of Yoh-Ekale Mwanje v. Belgium (no. 10486/10, 20 December 2011), six of the seven judges making up the Chamber which found that there had been no violation of Article 3 noted that, according to N. v. the United Kingdom , for the removal of an alien to constitute a violation of Article 3, it was necessary for “the person [concerned] to be in the final stages of the illness, close to death”. Although they followed the approach taken by the Grand Chamber, they expressed the hope that it would revisit its case-law on this point (see the joint partly concurring opinion of Judges Tulkens, Jočienė, Popović, Karakaş, Raimondi and Pinto de Albuquerque).

Without going that far, I would stress that in the present judgment the Court found that “there are strong humanitarian considerations in the applicant’s case weighing in favour of regularising her residence status” (see paragraph 126). Even if these considerations are not “sufficiently compelling, from the point of view of Article 3 of the Convention, to prohibit the applicant’s return to her country of origin” (ibid.), they nevertheless exist.

Article 53 of the Convention allows Contracting Parties to secure to the persons within their jurisdiction more extensive protection than that required by the Convention. I observe that under Belgian law an alien may be given leave to remain in the Kingdom in “exceptional circumstances” (section 9 bis of the Aliens Act). It is left to the competent authorities to assess whether such circumstances exist. I am conscious of the fact that the term “exceptional circumstances” refers to circumstances which preclude the alien’s temporary return to his or her country of origin in order to complete the necessary formalities with a view to lodging an application for leave to remain. I am also aware that “the factors relied on in the context of a request for leave to remain on the basis of section 9 ter ” “cannot be regarded as exceptional circumstances” (section 9 bis , paragraph 2, sub ‑ paragraph 4, of the Aliens Act). Nevertheless, I wonder whether section 9 bis does not allow the Belgian authorities ­ – in the exercise of their discretionary powers of course – to attribute to the humanitarian considerations referred to in the present judgment the importance they deserve, above and beyond the requirements of the Convention.

DISSENTING OPINION OF JUDGE POWER-FORDE

While N. v. the United Kingdom represents this Court’s case-law on the expulsion of people infected with HIV, I cannot, in conscience, endorse its application in this case. If applied, it will almost certainly result in the imminent death of the applicant and the deprivation of three young children of the presence, love, care and support of their mother. Denied the medication she needed, the applicant in N. died within a few months of having been deported to her home country. [1] In all probability, the same fate awaits this applicant. It is difficult for me to see how such an outcome could be compatible, in any way, with her rights under Articles 2 or 3 of the Convention [2] .

Acknowledging that the applicant’s life expectancy would be “affected” by its decision, the Court in N. took some “comfort” from the fact that the rapidity of her deterioration involved “a certain degree of speculation” particularly in view of the evolving situation of HIV treatment worldwide [3] .

In view of N.’s rapid deterioration and death, post-expulsion, however, the “degree of speculation” open to the Court at this point has diminished considerably. Consequently, the near certainty of imminent death is a vital factor which must be taken into account in the Court’s assessment of this applicant’s claim.

Even in N. , the Court affirmed the necessity of retaining a degree of flexibility to prevent expulsion in “very exceptional cases”. In its particular gravity, this case is distinguishable from N . Firstly, there is little or no room for conjecture on the issue of access to life-saving medication. In N. the Court noted that anti-retroviral (“ARV”) medication was available in Uganda although it acknowledged that only half of those who needed it received it. The situation in Nigeria is worse. As of 2010, only 34% of those with advanced HIV infection were receiving any anti-retroviral treatment and, currently, that situation is deteriorating [4] . What is more disconcerting, however, is that this applicant appears to have no hope of obtaining the triple therapy she requires [5] because the combination she needs to survive is not among the ARV therapy currently available in Nigeria (see paragraph 79). The majority accepts that it has no information to confirm that her medication is available in Nigeria (paragraph 122) but it is, nevertheless, prepared to sanction the Belgian authorities’ decision to deport her in the knowledge that she will be deprived of life-saving treatment.

Secondly, this applicant’s particular vulnerability is marked by her young age and her position as the mother of three children. While still a minor, she was impregnated by a man with whose family she had been living since she was eleven years old. By the age of twenty-two she had become a mother to three young children to whom she provides care on a daily basis.

Thirdly, apart from the horrendous physical suffering which death from AIDS entails, this applicant, additionally, will endure the profound emotional suffering involved in watching her three young children witness their mother deteriorate and die for want of medication knowing that she is powerless to help them and conscious that they will be left as orphans after her death.

That the State, in this case, knows of the real and imminent risk to the life of the applicant but fails to take any measures to avert it raises not only the issue of positive obligations [6] but also the fundamental question of responsibility for cause of the prohibited treatment. Whilst the majority in N. shifted causation beyond the territory of the contracting State party, the logic of that view cannot be sustained. The crucial act that will bring about this applicant’s death is not Nigeria’s omission to include her combination therapy amongst the ARVs available. That omission can have no effect upon her for so long as she is not placed in Nigeria. The crucial act which will determine whether she lives or dies is the execution of the State’s decision to deport. The intentional and proactive removal of the applicant from a place where she can obtain life-saving treatment to a place where she cannot is what will bring about her death. It is this conscious exposure of her to a real and imminent risk of near certain but avoidable suffering and death that engages the State’s responsibility under the Convention. “ Arguing otherwise is akin to saying it is the fault of the hard ground for injury suffered by a person pushed from a cliff rather than the hand that pushed him ” [7] .

That geographical location is irrelevant to causation is demonstrated, clearly, in the non-refoulement obligation under the Convention. Article 3 protects those within a State’s jurisdiction from proscribed treatment regardless of whether such treatment is inflicted directly in the contracting State or somewhere else at a later date [8] . A contracting State’s responsibility is engaged where “ substantial grounds have been shown for believing that the person in question, if deported, would face a real risk of being subject to treatment contrary to Article 3 in the receiving country ” [9] . The Court has made it clear that this liability is incurred by reason of “ having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment ” (emphasis added) [10] .

This consistent approach has been confirmed recently in Aswat v. the United Kingdom [11] . The applicant, a suspected terrorist, was the subject of an extradition request from the United States. Whilst held in a British hospital, his illness (schizophrenia) was well-controlled and he received the appropriate medication needed for his health and safety. The Court considered that whether or not his extradition would breach Article 3 very much depended upon (i) the conditions in which he would find himself and (ii) the medical services that would be made available to him (§ 52). Accepting that the applicant would have access to mental health services regardless of the institution in which he would be detained, the Court noted that the absence of guarantees that he would not be detained at ADX Florence—a maximum security facility in which long periods of isolation were the norm. It found that there was a real risk that the applicant’s extradition to a potentially more hostile prison environment would result in a significant deterioration in his mental and physical health. This, it concluded, would violate Article 3.

As in Aswat , the applicant in the instant case will certainly be placed in “a more hostile environment” which will have an adverse impact upon her health. Without access to life-saving treatment, she will suffer a rapid and a fatal deterioration in her condition. If Article 3 prohibits, rightly, the expulsion of a suspected terrorist to a third country because the conditions there would have adverse consequences for his health, it defies logic for the same Court to maintain that the same provision does not prohibit the expulsion of a vulnerable mother to a third country where the conditions there will have fatal consequence for her life. The Grand Chamber must resolve such a patent discrepancy in this Court’s jurisprudence [12] .

In N. type cases, the obligation to protect against a real risk of inhuman and degrading treatment is triggered only when an applicant’s illness has reached a terminal stage. A more humane application of the “exceptional circumstances” test is required, as a matter of urgency, to save this applicant’s life. The Court’s judgments must protect not just the dying but also the living against treatment prohibited under Article 3 of the Convention.

[1] XVIII International Aids Conference: Abstract C. Izambert: http://pag.aids2010.org/Abstracts.aspx?SID=432&AID=5953

[2] As to Article 8, my vote was based solely on the fact that if the applicant’s Article 3 rights were vindicated as required under the Convention, then no violation of Article 8 would occur. Consequently, I do not share the majority’s reasoning under Article 8 and, in particular, I do not agree that sufficient regard has been had to the best interests of the children whose family life will, indeed, be ruptured, irreparably, as a direct consequence of the applicant’s foreseeable and avoidable death.

[3] Ibid., § 50

[4] UK Border Agency, Nigeria: Country of Origin Information Report, 6 January 2012. The 2013 Report cited by the majority shows that only 28.8% of people in need of ARV treatment are in receipt of same.

[5] If the facts of this case demonstrate anything it is this: that in the treatment HIV infection—ARV “lines” matter. The applicant was seriously ill and had a number of opportunistic infections when her CD level fell to 126 (see paragraph 28). Her condition improved significantly when her combination therapy was changed. Her CD4 count stabilized and her viral load became undetectable. Currently, her infection is under control and she has not developed any opportunistic diseases (paragraph 124).

[6] States are required to take measures to avert risks of death or ill-treatment where they know, or ought to know, of such risks. If such knowledge or “notice” of risk is established together with failure on the part of the State to take steps to protect the individual therefrom, then the Court will find a violation of Convention. See, for example, Osman v. the United Kingdom , 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII, and Oneryildiz v. Turkey [GC], no. 48939/99, ECHR 2004-XII.

[7] Antony Julian, “Exceptional Circumstances: Too Exceptional?”, Kings College London

http://www.kslr.org.uk/blogs/humanrights/2012/05/31/exceptional-circumstances-too-exceptional/

[8] See Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008.

[9] H.L.R. v. France, 29 April 1997, § 34, Reports 1997 ‑ III , and Chahal v. the United Kingdom, 15 November 1996, § 74, Reports 1996 ‑ V.

[10] Soering v. the United Kingdom, 7 July 1989, § 91, Series A no. 161, and Saadi , cited above, §126.

[11] Aswat v. the United Kingdom, no. 17299/12, 16 April 2013.

[12] I agree with the six Judges in Yoh-Ekale Mwanje v Belgium who (in their separate opinion) called upon the Grand Chamber to revisit this Court’s jurisprudence in N. v. the United Kingdom .