X v. Staatssecretaris van Justitie en Veiligheid Case C‑69/21

Case C‑69/21

X

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag, (The Netherlands))

 Judgment of the Court of Justice (Grand Chamber), 22 November 2022

(Reference for a preliminary ruling – Area of freedom, security and justice – Articles 4, 7 and 19 of the Charter of Fundamental Rights of the European Union – Prohibition of inhuman or degrading treatment – Respect for private and family life – Protection in the event of removal, expulsion or extradition – Right of residence on medical grounds – Common standards and procedures in Member States for returning illegally staying third-country nationals – Directive 2008/115/EC – Third-country national who is suffering from a serious illness – Medical treatment for pain relief – Treatment is not available in the country of origin – Conditions under which removal must be postponed)

1.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third country nationals – Directive 2008/115 – Principle of non-refoulement – Third country national suffering from a serious illness – Real risk of a significant, permanent and rapid increase in his or her pain if he or she were returned to his or her country of origin – Adoption of a return decision or removal order in respect of such a national – Whether impermissible – Ability of Member States to lay down a strict period in which such increase is to materialise – None

(Charter of Fundamental Rights of the European Union, Arts 1, 4 and 19(2); European Parliament and Council Directive 2008/115, Art. 5)

(see paragraphs 52, 55, 56, 58, 59, 63-66, 68-76, 103, operative part 1)

2.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third country nationals – Directive 2008/115 – Principle of non-refoulement – Third country national suffering from a serious illness – Real risk of a significant, permanent and rapid increase in his or her pain if he or she were returned to his or her country of origin – Assessment by the competent national authority of the consequences of the removal on the state of health of the national concerned – Account taken of those consequences solely for the purposes of examining whether that national is able to travel – Not permissible

(Charter of Fundamental Rights of the European Union, Arts 1, 4 and 19(2); European Parliament and Council Directive 2008/115, Art. 5 and 9(1)(a))

(see paragraphs 80-82, 103, operative part 2)

3.        Border controls, asylum and immigration – Immigration policy – Returning illegally staying third country nationals – Directive 2008/115 – Third country national suffering from a serious illness – Impossible to take a return decision or to make a removal order in respect of that national – Reason – Real risk of a significant, permanent and rapid increase in his or her pain if he or she were returned to his or her country of origin – Requirement to grant a residence permit to that national – None – Right to private life – Examination of whether permissible to remove that national– Factors to be taken into account

(Charter of Fundamental Rights of the European Union, Arts 1, 4 and 7; European Parliament and Council Directive 2008/115)

(see paragraphs 84-87, 89, 90-103, operative part 3)

Résumé

X, a Russian national, is suffering from a rare form of blood cancer, for which he is currently receiving treatment in the Netherlands. He is receiving, in particular, analgesic treatment based on medicinal cannabis, which is not permitted in Russia. The Netherlands authorities, having found that that Russian national could not claim, in the Netherlands, refugee status, subsidiary protection or a residence permit on the basis of national law, adopted a decision to return him. The person concerned, arguing that the treatment based on medicinal cannabis is so essential to him that he would no longer be able to lead a decent life if that treatment were discontinued, brought an action against that decision before the referring court.

That court raises questions in particular regarding whether EU law, and more specifically the 'Return' Directive (1) and the Charter of Fundamental Rights of the European Union ('the Charter'), preclude a return decision from being made in relation to a person in the situation of the person concerned. More specifically, the referring court seeks to ascertain whether the risk of a significant increase in pain caused by absence of effective medical treatment can constitute an obstacle to removing the person concerned.

The Court of Justice, sitting as the Grand Chamber, responds in the affirmative and provides clarification of the factors to be taken into consideration when assessing such a risk and how that assessment is to be conducted. In addition, it examines Member States' obligations regarding a third country national in the situation of the person concerned in the light of the right to private life.

Findings of the Court

In the first place, the Court states that the 'Return' Directive (2) and the Charter (3) preclude 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.

In that regard, the Court holds that a Member State may infringe the prohibition of inhuman and degrading treatment, laid down in Article 4 of the Charter, where the return decision or removal order adopted by its authorities risks exacerbating the pain caused to a third-country national concerned by an illness to the extent that such pain reaches the severity threshold required under Article 4 of the Charter.

First, there is a risk of a significant and permanent increase in pain, in particular, where it is established that (i) in the receiving country, the only effective analgesic treatment cannot be lawfully administered to the third-country national concerned and (ii) the absence of such treatment would expose him or her to pain of such intensity that it would be contrary to human dignity in that it could cause him or her serious and irreversible psychological consequences, or even lead him or her to commit suicide. It is for the referring court to determine whether that is so in the light of all of the relevant information, in particular the medical information.

As regards, second, the risk of a rapid increase in pain, account must rather be taken of the fact that that increase may be gradual and that a certain period of time may be necessary for that increase to become significant and permanent. Therefore, a Member State may not lay down a predetermined period in absolute terms within which such an increase must be liable to materialise. Any period laid down by national law in that regard must be purely indicative and cannot exempt the competent national authority from an actual examination of the situation of the person concerned in the light of all the relevant information.

In the second place, the Court finds that the 'Return' Directive (4) and the Charter (5) preclude 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. In order to be able to adopt a return decision or to remove him or her, the Member State concerned must ensure that, when the state of health of the person concerned so requires, that person receives not only health care during removal but also after that removal, in the receiving country.

In the third and final place, the Court points out, first, that the 'Return' Directive and the Charter (6) do not require the Member State on whose territory a third-country national is staying illegally to grant a right of residence to that national where that national cannot be the subject of a return decision or a removal order, on account of the fact that 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 is suffering. Second, the Court states that the competent national authority, when examining whether the right to respect for the private life of that national, laid down in the Charter, precludes him or her being the subject of a return decision or removal order, must take account of the state of health of that national and the care he or she receives on that territory, on account of that illness, as well as all the other relevant factors.

In that regard, the Court clarifies that the medical treatment which a third-country national receives on the territory of a Member State forms part of his or her private life, regardless of whether that national is staying illegally on that territory. However, as the right to respect for private life is not an absolute right, limitations can be placed on the exercise of that right, in so far as those limitations are provided for by law, they respect the essence of that right and, in compliance with the principle of proportionality, they are necessary and genuinely meet, in particular, objectives of general interest recognised by the European Union. As the establishment of an effective removal and repatriation policy constitutes such an objective, it is still necessary to examine, in particular, whether the adoption of a return decision or a removal order in respect of a third-country national who is suffering from a serious illness and receiving, in the Member State concerned, analgesic treatment which is unavailable in the receiving country does not affect the essence of his or her right to private life and respects the principle of proportionality. Such an examination presupposes taking into account all the social ties which that national has created within the Member State where he or she is staying illegally, taking due account of the fragility and the state of particular dependency caused by his or her state of health. However, where that national has established his or her private life within that Member State without holding a right of residence there, only exceptional circumstances may preclude him or her from being the subject of a return procedure.

In addition, the adoption of a return decision or removal order does not infringe the right to respect for the private life of a third-country national concerned 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.

1      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 (OJ 2008 L 348, p. 98, 'the "Return" Directive').

2      Article 5 of that directive.

3      Articles 1 and 4 as well as Article 19(2) of the Charter.

4      Article 5 and Article 9(1)(a) of that directive.

5      Articles 1 and 4 as well as Article 19(2) of the Charter.

6      Article 7 of the Charter, which lays down the right to respect for private life, as well as Articles 1  and 4 of the Charter.