Opinion of Advocate General Pikamäe delivered on 9 June 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:451
• Date: 09 June 2022
• Celex Number: 62021CC0069
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 9 June 2022 (1)

Case C‑69/21

X

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch, Netherlands))

(Reference for a preliminary ruling – Border controls, asylum and immigration – Immigration policy – Directive 2008/115/EC – Return of illegally staying third-country nationals – National who is suffering from a serious illness and is the subject of a return procedure – Medical treatment for pain relief – Treatment is not available in the country of origin – Refusal to postpone removal – Charter of Fundamental Rights of the European Union – Article 4 – Right not to be subjected to inhuman and degrading treatment – Article 7 – Right to respect for private life)

1. In the present case, the Court is asked about the conditions under which the state of health of a third-country national may preclude the enforcement of his removal under Directive 2008/115/EC. (2)

2. The Court has already held, in the judgment in MP (Subsidiary protection of a person previously a victim of torture), (3) that Article 4 of the Charter of Fundamental Rights of the European Union (‘the Charter’) may, in principle, constitute a limit on the enforcement of a removal order for the purposes of Directive 2008/115. In the present case, having regard to its case-law and that of the European Court of Human Rights (‘the ECtHR’), the Court is called upon to provide clarification of the criterion used in that judgment in order to identify the threshold of severity beyond which a violation of the prohibition of inhuman and degrading treatment may occur.

3. In particular, the Court is called upon to rule in the present case on whether, first, an increase in the pain experienced by a third-country national as a result of his removal, without any change in the symptoms of his illness, is such as to characterise a ‘deterioration’ or a ‘decline’ in the state of health of that foreign national within the meaning of the relevant case-law and, secondly, the Member States are entitled to lay down a strict period within which that deterioration or decline must occur.

4. Moreover, the Court will have to decide on the legal criteria to be applied in the event of a conflict between the enforcement of the removal of a third-country national and his right to respect for his private life, as set out in Article 7 of the Charter, by determining whether that national’s state of health must be taken into account as a component of his private life.

I. Legal framework

A. EU law

5. Articles 1, 5 and 9 of Directive 2008/115 and Articles 4, 7 and 19(2) of the Charter are relevant to the present case.

B. Netherlands law

6. Article 64 of the Vreemdelingenwet 2000 (Law of 2000 on foreign nationals; ‘the Law on foreign nationals’) provides:

‘Removal shall be postponed as long as the state of health of the foreign national or of a member of his or her family prevents him or her from travelling.’

7. The Vreemdelingencirculaire 2000 (Circular of 2000 on foreign nationals; ‘the Circular on foreign nationals’) provides:

‘…

7. No deportation on health grounds

7.1. General provisions

The [Immigratie- en naturalisatiedienst (IND) (Immigration and Naturalisation Service, Netherlands)] may grant the postponement of departure under Article 64 of the [Law on foreign nationals] where:

– from a medical point of view, the foreign national is unable to travel; or

– there is a real risk of a violation of Article 3 of the [Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’)] on medical grounds.

7.1.1. The foreign national is unable to travel

The foreign national shall be granted a postponement of departure under Article 64 of the [Law on foreign nationals] if the [Bureau Medische Advisering (BMA) (Medical Advice Bureau of the Ministry of Security and Justice, Netherlands)] indicates that, from a medical point of view, the state of health of the foreign national or of a member of his or her family prevents him or her from travelling.

…

7.1.3. Real risk of a violation of Article 3 ECHR on medical grounds

The foreign national shall be granted a postponement of departure under Article 64 of the [Law on foreign nationals] where there is a real risk of a violation of Article 3 ECHR on medical grounds.

There is a real risk of a violation of Article 3 ECHR only where:

– it is apparent from the BMA’s opinion that it is highly likely that the absence of medical treatment will cause a medical emergency; and

– the necessary medical treatment is not available in the country of origin or permanent residence; or

– if medical treatment is available, it appears that it is manifestly not accessible.

Medical emergency

The IND defines a medical emergency as a situation in which the foreign national suffers from a condition which, according to current medical and scientific knowledge, if left untreated, will result in death, disability or other serious psychological or physical harm within three months.

…’

II. Facts of the dispute, the procedure in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

8. X is a Russian national who was born in 1988. At the age of 16, he developed a rare form of blood cancer for which he is currently receiving treatment in the Netherlands. His medical treatment consists inter alia of phlebotomy and the administration of medicinal cannabis for pain management. The administration of that cannabis-based treatment is not authorised in Russia.

9. On 31 October 2013, X lodged a first application for asylum in the Netherlands. However, the Staatssecretaris van Justitie en Veiligheid considered that the Kingdom of Sweden was responsible for processing that application. That decision has become final.

10. On 13 December 2013, X requested, pursuant to Article 64 of the Law on foreign nationals, that his removal be postponed because of his medical issues. The defendant rejected that request by decision of 24 December 2013, which has also become final.

11. On 19 May 2016, X lodged a new application for asylum in the Netherlands, the period within which he could be transferred to Sweden having expired. In support of that application, X claimed that the medical treatment he had received in Russia caused him side effects and that he had subsequently discovered that taking medicinal cannabis was more suited to his condition. Since the use of cannabis is not permitted in his country of origin, he had grown cannabis plants for medicinal purposes, which had caused him such problems that he now required international protection. In that application, X had also again requested that his removal be postponed pursuant to Article 64 of the Law on foreign nationals.

12. After receiving the opinion of the BMA, by decision of 29 March 2018, the Secretary of State rejected X’s application for asylum taking the view that the problems which the applicant claimed to have faced in Russia were not credible. The Secretary of State also decided that the applicant could not obtain an ordinary residence permit and refused to grant his request to suspend the enforcement of his obligation to return, pursuant to Article 64 of the Law on foreign nationals.

13. By judgment of 20 December 2018, confirmed by the Raad van State (Council of State, Netherlands) on 28 March 2019, the rechtbank Den Haag zittingsplaats ’s‑Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch Netherlands) partially annulled that decision. Thus, while it confirmed that X could not claim refugee status or subsidiary protection, it ordered the Secretary of State to re-examine both X’s argument based on his right to obtain a residence permit on the basis of Article 8 ECHR and his request for the application of Article 64 of the Law on foreign nationals.

14. On 19 February 2020, the Secretary of State again refused to grant X a residence permit for a limited duration, under Article 8 ECHR, and to postpone his removal. By the same act, the Secretary of State adopted a return decision ordering X to leave the territory of the Netherlands within four weeks.

15. X brought an action against that decision before the referring court. He considers that he should be issued with a residence permit under Article 8 ECHR or, at the very least, his removal should be postponed under Article 64 of the Law on foreign nationals. In that regard, he submits that the treatment of pain using cannabis is so essential to him that he would no longer be able to lead a decent life if that treatment was discontinued. He states, in particular, that, in the event of his treatment being discontinued, the pain would be so great that he would no longer be able to sleep or eat, which would have not only physical but also psychological consequences, making him depressed and suicidal.

16. The referring court notes at the outset that, in accordance with Netherlands legislation, removal may be postponed where, from a medical point of view, the foreign national is unable to travel or there is a real risk of a violation of Article 3 ECHR on medical grounds. The latter assumes that it is apparent from the BMA’s opinion that, first, discontinuing medical treatment will in all probability result in a ‘medical emergency’ and, secondly, appropriate treatment is not available in the country of origin or the foreign national will not be able to access it.

17. In the context of the asylum procedure initiated on 19 May 2016, X submitted various medical documents in order to substantiate his claim that his health problems are such as to justify the suspension of his removal.

18. In its opinions issued at the request of the Secretary of State, the BMA stated inter alia that although, without phlebotomy, it could be expected...