CASE OF S.J. v. BELGIUM
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Nigeria);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion);Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed
Aleš Pejchal;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
7. The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion. 8. Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age, on 26 December 2007. 9. After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007. 10. On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). On 17 September 2007 the Maltese authorities accepted the request. 11. The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 33 et seq. below). 12. Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 20 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”). 13. On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria. 14. The applicant appealed to the Aliens Appeals Board. In judgment no. 49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm. 15. No administrative appeal on points of law was lodged with the Conseil d’État against that judgment. 16. On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment. 17. The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection. 18. In October 2007 a course of ARV treatment (a combination of Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”). 19. During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving, which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children. 20. On 27 April 2009 the applicant gave birth to a second child by the same father, M.A. 21. On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir. 22. On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament. 23. In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 44 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office. 24. On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list. 25. On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms: “The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems...” 26. On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa. 27. On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling through Dutch and the monitoring of her own illness. 28. A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows: “Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child. ... Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups... Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.” 29. A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children. 30. In the meantime, on 23 November 2012, the applicant gave birth to her third child. According to the birth certificate, M.A. was again the father. 31. On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 27 above), stating that the applicant was continuing to receive psychosocial support. 32. Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit. 33. On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). 34. On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months. 35. At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling. 36. On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008. 37. On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows: “[From] a medical point of view, ... although [Aids] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.” 38. On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for Aids was available in Malta and was accessible to non-nationals. 39. The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008. 40. On 11 March 2009 the Aliens Office revoked its decision of 20 August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 12 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh opinion from its medical adviser concerning a possible return to Nigeria. 41. On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose. 42. On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion: “From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.” 43. On the basis of this opinion and the information received from the Nigerian embassy, the Aliens Office on 27 September 2010 refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows: « [The] medication currently being administered to the applicant is available in Nigeria... Nigeria has numerous treatment programmes for the applicant’s condition... The cost is low because the authorities subsidise the medication... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.” 44. On 20 October 2010 – the asylum proceedings having been concluded in the meantime with the rejection of the applicant’s asylum application (see paragraph 14 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22 November 2010, worded as follows: “Pursuant to the decision of ... 20 October 2010, the aforementioned S.J. and her children ... are hereby ordered to leave Belgium not later than 20 December 2010...