Immigration Law Update: Article 3: S.J. v. Belgium (App no. 70055/10)

Follow the link to read the case.

The applicant, who was HIV positive, alleged a violation of Articles 3, 8 and 13 of the ECHR on account of the risk that she would not have access to treatment if she and her children were expelled to Nigeria. The Grand Chamber, by a majority, agreed to strike out the case because the parties had reached a friendly settlement with the A and her children granted ILR on humanitarian grounds.

The case is notable however for the passionate dissenting judgment of Judge Pinto de Albuquerque who regretted that the Court had not taken the opportunity to revisit N. v. the United Kingdom. According to the dissenting judge, N v UKdistorts the reasoning behind Article 3 of the Convention, by watering down the legal force of that provision” and “legal reasoning is abandoned in favour of politics.” He concludes:

Too much time has elapsed since N.'s unnecessary premature death and the Court has not yet remedied the wrong done. I wonder how many N.s have been sent to death all over Europe during this period of time and how many more will have to endure the same fate until the "conscience of Europe" wakes up to this brutal reality and decides to change course...Refugees, migrants and foreign nationals are the first to be singled out in a dehumanised and selfish society. Their situation is even worse when they are seriously ill. They become pariahs whom Governments want to get rid of as quickly as possible. It is a sad coincidence that in the present case the Grand Chamber decided, on the World Day of the Sick, to abandon these women and men to a certain, early and painful death alone and far away. I cannot desert those sons of a lesser God who, on their forced path to death, have no one to plead for them.


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