Comment on Paposhvili v Belgium and the Temporal Scope of Risk Assessment

On 13 December 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a significant ruling in Paposhvili v Belgium, App. No. 41738/10, correcting the narrow approach to Article 3 medical removal cases taken in D v United Kingdom, App. No. 30240/96 (2 May 1997) and extended in cases such as N v United Kingdom, App. No. 26565/05 (27 May 2008). These cases established that a breach of Article 3 (sending an applicant to a real risk of torture or inhuman and degrading treatment) would only be found in the most exceptional circumstances, namely where there were compelling humanitarian considerations such as an applicant being critically ill and facing mental and physical suffering and hastened death upon removal. The Paposhvili judgment expands the application of Article 3 in medical cases and raises interesting issues about our broader understanding of prospective risk assessments in other types of subsidiary protection/complementary protection and refugee cases.

The applicant, a Georgian national facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment and accelerated death if he were expelled. Indeed, medical evidence accepted by the Court indicated that he would die within 6 months of his treatment being discontinued ([195]).

Although Mr Paposhvili died while his Grand Chamber hearing was pending, the ECtHR examined his complaint due to its wider impact on cases involving aliens who are seriously ill and facing removal. The ECtHR “clarified” its jurisprudence in relation to that group of people, noting that the case law since N v United Kingdom had been impermissibly narrow and “deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]” ([181]–[182]). While maintaining the language of “exceptional cases” from D, the ECtHR expanded that category to encompass:

situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. ([183], emphasis added)

Dr Lourdes Peroni and Steve Peers have noted that the significance of this case is the ruling that access to “sufficient and appropriate” medical care must be available in reality, not merely in theory. The submissions of the Ghent University Human Rights Centre as intervening party provided the ECtHR with an excellent platform from which to set out procedural obligations and evidentiary factors to guide the assessment of risk. The ECtHR held at [190]–[191] that the “authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” and :

“where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned…the returning State must obtain individual and sufficient assurances from the receiving State…”.

The case also has wider significance. The ECtHR contemplated an expanded timeframe in which qualifying harm may manifest post-removal. Rather than requiring that the applicant’s death be imminent at the time of removal, the Court extended the enquiry beyond the point of departure from Europe by considering a period of time in the receiving country during which the applicant’s condition may decline. The impact of removal on an applicant must now be assessed by considering how an applicant’s condition “would evolve after transfer to the receiving State” ([188], emphasis added). In expressly moving beyond the language of “imminence”, the ECtHR actually does no more than realign with the “preventive purpose” of Article 3 ([186]). The ECtHR has often paid lip service to this by citing Vilvarajah & Ors v United Kingdom, App. Nos. 13163/87; 13164/87; 13165/87 (30 October 1991), which established that the ECtHR must undertake a rigorous assessment of the foreseeable consequences of removal ([108]). In the refugee context, decision-makers have also indicated that risk assessments are prospective and forward-looking. Yet, there are few examples of assessments that actually look beyond the short-term, and little engagement with the temporal limit of risk assessment (or indeed with whether “time” properly has any role in the assessment of risk).

In moving beyond mere lip service and attempting to engage with the future both theoretically and evidentially, the Paposhvili judgment should be applauded. However, the ECtHR circumscribes the temporal horizon by emphasising situations involving an applicant’s rapid decline ([183]). We might ask why the ECtHR limited its ruling to rapidly declining health only, particularly when the dissent of Judges Tulkens, Bonello and Spielmann in N almost nine years ago simply found Article 3 to apply on the basis of the severity of suffering, irrespective of the time period:

“There is no doubt that in the event of removal to Uganda the applicant will face an early death after a period of acute physical and mental suffering…The expelling State’s responsibility, because substantial grounds are thus shown for believing that the applicant almost certainly faces a risk of prohibited treatment in Uganda, is engaged” ([23]).

While Paposhvili may expand the class of beneficiaries of Article 3 protection, it remains to be seen whether it will protect applicants with slow-moving but terminal conditions. For instance, in Ndangoya v Sweden, App. No. 17868/03 (22 June 2004), the applicant would have developed AIDS within one to two years (and died within three to four years) after discontinuing treatment; in N, the applicant’s prognosis indicated a decline in health leading to death in two years’ time. Much will depend on the interpretation of “rapid” decline and the importance judges may assign to the connection between rapidity and predictive certainty. There is nothing in the ECHR or other human rights and refugee instruments to require an imminence test per se, but it is often imported into risk assessments in many international protection decisions.

My current research work, on the Imminence Project at the Kaldor Centre for International Refugee Law at the University of NSW, analyses whether and how decision-makers impose an imminence “requirement” in the grant (or, more often, the refusal) of refugee status or subsidiary protection/complementary protection status. Understanding this approach will have increasing importance as slower-onset types of harm increasingly prompt flight, such as the impacts of climate change and natural disasters, social disorder and economic collapse, and different forms of armed conflict.

One of the Project’s preliminary concerns is with decision-makers’ reluctance to favourably assess a risk which has a delayed manifestation post-removal. One reason, adverted to by the Grand Chamber in Paposhvili, is that the decision would involve excessive speculation because of the potential over a longer timeframe for risk-reducing measures to intervene. The Grand Chamber pointed out that the Court in N v United Kingdom had rejected the claim there because:

“the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would be able to obtain medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of [AIDS] worldwide” ([178]).

The Paposhvili judgment does two things to assuage such fears and indicate that a prospective risk assessment, including a longer-term one, is justified. First, it confirms that speculation is inherent and acceptable in Article 3 enquiries ([186]; see also Trabelsi v Belgium, App. No. 140/10 (4 September 2014) and Saadi v Italy, App. No. 37201/06 (28 February 2008)). Secondly, it sets out, in a practical sense, the evidence that would satisfy a court as to some of those factors which the ECtHR in N stated as too speculative – such as access to medical treatment and support ([189]–[191]). There is no reason why risk-reducing factors cannot be analysed in the same practical way; this is, after all, an area in which science and expert evidence can add to predictive certainty, although it is important to remember that certainty is not the benchmark in risk assessments.

The judgment also prompts us think about the nature of prospective risk enquiries in refugee and subsidiary protection/complementary protection cases more broadly, and ask whether decisions involving longer-term forms of harm truly reflect a definition of risk as being likelihood + consequence, rather than just likelihood alone. Moreover, can, as the dissent in N seems to suggest, the level of predictive certainty be judged based on the severity of the consequences of removal delinked from the time it will take for those consequences to manifest? Finally, are decision-makers, in effect, covertly raising the standard of proof in cases concerned with delayed risks above the level of “real”?

In short, the Paposhvili judgment gives reason to hope that more robust risk assessments will be made under Article 3, leading to greater protection. However, it remains to be seen how the ECtHR will interpret the Paposhvili test in subsequent cases, particularly in relation to illnesses with longer-term prognoses. In the meantime, the impact of time on decision-makers’ prospective risk assessments should be further exposed and explored, rather than remaining implicit, as is often the case now.