How Exceptional Must ‘Very Exceptional’ Be? Non-Refoulement, Socio-Economic Deprivation and Paposhvili v. Belgium

Abstract

Since N. v. the United Kingdom, an exceptionally high threshold has been applied to migrants who try to avoid expulsion in order to continue to receive medical assistance in the returning state. With Paposhvili v. Belgium, the Grand Chamber of the ECtHR recognized the ensuing protection gap and modified the standards. These modifications imply a small opening of the ‘very exceptional’ standard to the effect that risk of imminent death is no longer the threshold, but rather ‘a serious, rapid and irreversible decline’ in the migrant’s health upon removal. The Court clarified the factors to be considered for evaluating the development of the migrant’s health condition in case of expulsion. These factors, together with the requirement for seeking ‘individual and sufficient assurances’ that care will be provided from the receiving state as a precondition for removal, channel the evaluation of the risk towards a more careful consideration of the individual circumstances of the specific migrant. Despite these promising developments, the underlying reasoning in the non-refoulement medical cases under Article 3 of the ECHR remains riddled with inconsistencies and questionable premises. These relate to the framing by the Court of the obligation not to refoule as a negative obligation, a frame which the Court explicitly adopted for the first time. This frame is, however, difficult to reconcile with the ‘very exceptional’ standard as underpinned by the distinction between ‘natural’ sources of harm and intentionally-inflicted harm. It is also disturbing that Paposhvili v. Belgium reflects a move in favor of procedural protection and a sidelining of substantive protection at the European level.

Keywords: non-refoulement, Article 3 ECHR, Paposhvili v. Belgium