THE PROBLEM AND THE COURT’S APPROACH IN PAPOSHVILI v BELGIUM : ECHR 13 Dec 2016
The Court itself in Paposhvili noted that it had applied the case-law established in N. v. the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning claimants who were HIV positive or who suffered from other serious physical illnesses or mental illnesses. It was noted that several judgments had applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel.
The Court considered from a review of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.
The Court observed that there were important issues at stake in Paposhvili notably concerning the expulsion of aliens who are seriously ill. Thus, the impact of the case went beyond the particular situation of the applicant.
In Paposhvili, it was argued among other issues, that the present case afforded a unique opportunity to depart from the excessively restrictive approach adopted by the Court in N. v. the United Kingdom with regard to the expulsion of persons suffering from serious illness.
