Committee on the Rights of Persons with Disabilities, 28 August 2020, N.L. v. Sweden, Communication No. 60/2019

UN Committee on the Rights of Persons with Disabilities (CRPD) – UN Treaty Body – Deportation – Non-refoulement – Access to health care – Mental health – Socio-economic rights.

In this decision, the Committee on the Rights of Persons with Disabilities ruled for the first time on the principle of non-refoulement, in relation to the deportation of a mentally ill woman to her country of origin where she claimed she could not receive the necessary health care. The Committee considers that since the author proved that her condition was ‘severe and life-threatening’ without adequate treatment, the returning State had to assess whether health care was available and accessible – which it failed to do. Although generous, the decision once again lays emphasis on the procedure to the detriment of the substance of the law.

Marie Courtoy

A. Facts and Ruling

The author, an Iraqi national, initially applied for asylum in Sweden alleging that she was fearing persecution from her family who disapproved of her relationship with a man – application which was denied (1). She invoked her state of health at a later stage, in support of her three applications for impediment of enforcement of the expulsion order when the latter had become final. Those applications were also rejected by the Swedish authorities (2) and led to the complaint before the Committee on the Rights of Persons with Disabilities (“the Committee”) (3).

1. Domestic decisions on asylum claim

The author arrived in Sweden on 13 March 2013. There, she motivated her need for international protection by the fact that she had received death threats from her relatives because of her relationship with a man of which they disapproved. She first received a Dublin decision of transfer to France and, when the timeframe for enforcing the transfer order expired, she submitted a new claim for asylum on 27 February 2015. The application was then examined on the merits by the Migration Agency which denied it on 14 February 2017. Both the Migration Court and the Migration Court of Appeal upheld the decision, respectively on 28 April 2017 and on 29 June 2017. The author indicates to the Committee that “the claims she raised in her initial application for asylum is not the subject matter of her complaint before the Committee” (see footnote 2 of the commented decision)[1].

2. Domestic decisions on impediment of enforcement of expulsion decision

After the deportation order became final, the author applied on three occasions for a residence permit citing impediments to the enforcement of the deportation order. In support of her first application, she referred both to her physical health which had deteriorated as she was diagnosed with diabetes and high blood pressure, and to her mental health since she claimed that she was suffering from a sleeping disorder and anxiety and that she had “started to think that death was the only solution”. The Migration Agency denied her application on 15 January 2018, considering that “it had not been substantiated that the author suffered from severe and life-threatening mental or physical illness” (para 2.3). The Migration Court and the Migration Court of Appeal confirmed the decision.

On 25 April 2018, the author submitted her second application. She restated her claim about physical illness and provided new medical certificates to attest to her deteriorating mental health. The reports noted a severe depression with psychotic features and a high risk of suicide, which justified admission for compulsory psychiatric care and heavy treatment on her release. The triggering factor was identified to be the negative decisions on her asylum application. The author explained that she was first able to handle her traumatic experiences from Iraq as she felt relieved to arrive in Sweden, but that the expulsion decisions made her mental illness “worse and acute” (para 2.4).

The Migration Agency rejected the application on 16 October 2018, considering that the author had not been able to prove that she was suffering “a severe mental illness that was not temporary in nature”. The Agency noticed in particular the fact that she did not invoke her mental illness during her initial asylum process and the fact that she herself linked her mental illness to the expulsion decisions, which must then rather be seen as an expression of disappointment or despair (para 2.5). The Migration Court confirmed the decision on 21 December 2018. While it did not contest the author’s mental illness, it did not consider that this condition was lasting since it seemed to have deteriorated as a result of the rejected asylum claim (para 2.7). The Court therefore found no reason to further assess the possibility of receiving psychiatric care in Iraq (para 4.3). Regarding diabetes, it considered that it was not established that the author would not be able to receive adequate care (para 2.7). The Migration Court of Appeal upheld the decision on 21 January 2019.

Eventually, the author’s third and last application – which was introduced after the submission of the communication to the present Committee – was denied by the Migration Agency on 7 August 2019. Despite acknowledging that the author was mentally unwell and in need of medical treatment and professional psychiatric contact, the Court did not find that she was suffering a severe mental illness that could be deemed to be of a lasting nature, since her state of health was primarily linked to her disappointment at her asylum process and had improved since then (para 4.4).

3. The Committee on the Rights of Persons with Disabilities’ decision

The author submitted a communication to the Committee on 10 May 2019. She claims that, by deporting her to Iraq, Sweden will violate her rights under Articles 6 (women with disabilities), 10 (right to life), 12 (equal recognition before the law) and 15 (freedom from torture or cruel, inhuman or degrading treatment or punishment) of the Convention on the Rights of Persons with Disabilities (“the Convention”). Pending examination of the communication, the Committee issued an interim measure requesting Sweden to refrain from deporting her to Iraq on 21 May 2019. The views were adopted on 28 August 2020. After establishing the facts and the arguments as submitted by the parties, the Committee delivers its decision on admissibility (i) and on the merits (ii).

i. Decision on admissibility

In addition to a general argument that the author’s claims is inadmissible as manifestly ill-founded – which the Committee does not address –, the Swedish government considers the author’s claims inadmissible ratione materiae for the part relating to Articles 10 and 15 of the Convention and ratione materiae as well as ratione loci for the part relating to Articles 6 and 12.

The Government holds that Articles 10 and 15 of the Convention do not encompass the principle of non-refoulement since related claims can already be lodged with several international human rights institutions, citing the Human Rights Committee, the Committee against Torture and the European Court of Human Rights. In the alternative, the Government submits that, even if such a principle could be inferred from Articles 10 and 15 of the Convention, this obligation should only apply to claims relating to an alleged risk of torture (para 4.7). The Committee rejects the argument by referring to its jurisprudence in O.O.J. v. Sweden where it recognized the principle of non-refoulement (para 6.4).

However, the Committee finds for the Government with regard to the author’s claims under Articles 6 and 12 of the Convention and sets aside the claims in this regard. The author invoked her special vulnerability as a woman with disabilities and without a family network in Iraq. In addition, she pointed out that the Swedish authorities focused on the reasons for her health condition rather than on the risk in case of removal to Iraq, thereby violating her right to equal recognition before the law. However, the Committee considers that she had not provided any specific information or explain why these claims would amount to a real and personal risk of irreparable harm if she were removed to Iraq (para 6.5).

ii. Decision on the merits

The Committee starts with an analysis of the principle of non-refoulement as interpreted by the UN Treaty Bodies, notably the Human Rights Committee and the Committee against Torture, as well as the regional body that is the European Court of Human Rights (paras 7.3-7.5). It “notes” the findings of the Human Rights Committee both through its General Comment No. 31 and through its case law, in particular the case Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark where the Human Rights Committee stated that the State has to undertake an individualized assessment of the risk in case of removal which includes access to adequate medical care. The Committee further “notes” the findings of the Committee against Torture in the case Adam Harun v. Switzerland that an individualized assessment of the risk to which the complainant would be exposed if returned must take into account his particular vulnerability, including his health status. The Committee finally “notes” the jurisprudence of the European Court of Human Rights in Paposhvili v. Belgium and recalls its main findings, both on the threshold to be reached by persons who are not in imminent danger of death in order to prevent their removal and on the assessment to be undertaken by the State party regarding the availability and accessibility of care once the applicant has substantiated his claim.

The Committee then goes into its examination of the present case in one paragraph (para 7.8). After noting “that it is undisputed between the parties that the author has been diagnosed with depression” but “that the parties disagree on the severity of the author’s health condition and whether it is lasting in nature”, the Committee considers that the author had proven with several medical certificates that her health condition was “severe and life-threatening without the treatment” received in Sweden and that is was then up to Sweden to assess “whether the author would in fact be able to access adequate medical care if removed to Iraq” – which the State failed to do, as both parties agree. The Committee therefore finds a violation of Article 15 of the Convention, with no need to separately consider the author’s claim under Article 10.

B. Discussion

The Convention on the Rights of Persons with Disabilities[2] was negotiated in four years – which is very quick in UN time – to be adopted by the UN General Assembly on 13^th December 2006. It was open to signatures on 30^th March 2007 and came into force on 3^rd May 2008 following ratification by the 20^th State Party. It is now widely ratified as 182 States have acceded to it. While this could suggest a smooth process, the fact that the discussions only started at the beginning of the 21^st century is a clear indicator of the resistance met by the international disability community to be heard[3]. It took decades to make their leitmotiv “Nothing about us without us” come true with a convention that regards all persons with disabilities as legally capable and that insists on their necessary participation in decision-making.

As usual in the UN human rights treaty system, the Convention establishes a Committee composed of experts in charge of monitoring its implementation, mostly through the consideration of state reports. The Optional Protocol, which came into force on the same day as the Convention and is ratified by 96 States today, introduces two additional mandates for the Committee: the examination of individual complaints – as it is the case here – and the undertaking of inquiries. The Committee’s “views” under the individual claims procedure are not legally binding and the Optional Protocol is silent on the response expected from the State, but the Committee’s Rules of Procedure still provide for a follow-up procedure[4].

The present case is, to our knowledge[5], the first case on non-refoulement that the Committee is examining on the merits. The Committee had already received a communication about a deportation, O.O.J. v. Sweden, where it confirmed that the principle of non-refoulement can be induced from the Convention and to which it refers in its present views, but the communication in question was declared inadmissible for non-exhaustion of domestic remedies.

In deciding to declare the communication admissible, the Committee embarked on a case law already shared by several human rights institutions – as the Swedish government argued to convince the Committee of the inadmissibility of the claim. We will compare the Committee’s decision to other bodies’ jurisprudence on non-refoulement with regard to three important aspects, i.e. the notion of non-refoulement when it comes to socio-economic rights (1), the required severity of the violation in health cases (2) and the burden of proof (3), before providing tentative conclusions on the weight of the present views in this context (4).

1. Non-refoulement and socio-economic rights: disguise to better convince

In O.O.J. v. Sweden, the Committee carefully engages with the principle of non-refoulement with the following sentence:

“The Committee is of the view that the removal by a State party of an individual to a jurisdiction where he or she would risk facing violations of the Convention may, under certain circumstances, engage the responsibility of the removing State under the Convention” (para 10.3; emphasis added)

In the present case, it starts by the exact same sentence, referring to its jurisprudence, but goes a little further and adds that:

“The Committee considers that the principle of non-refoulement imposes a duty on a State party to refrain from removing a person from its territory when there is a real risk that the person would be subjected to serious violations of Convention rights amounting to a risk of irreparable harm, such as - but not limited to - those enshrined in articles 10 and 15 of the Convention” (para 6.4; emphasis added)

As we can see, the principle of non-refoulement is triggered if there is a real risk of serious violations of Convention rights in case of removal. But which Convention rights? In theory, any of them, as the Committee indicates. However, as McAdam perfectly explained:

“Although, in theory, any human rights violation may give rise to a non-refoulement obligation, in most cases ‘it will be virtually impossible for an applicant to establish that control on immigration was disproportionate to any breach’ of a human right. […] For this reason, it is common for a violation of a socio-economic right […] to be re-characterized as a form of inhuman treatment, which is a right giving rise to international protection.” (at p. 17)

No surprise then if the author did not invoke Article 25 of the Convention (right to the enjoyment of the highest attainable standard of health) in order to prevent her return to Iraq, but rather chose to highlight the threat to her right to life (Article 10) and her freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 15).

2. The threshold in health cases: exceptionality as the rule

Even with this legal ploy, the exercise remains complicated since, as McAdam continues, “courts have carefully circumscribed the meaning of ‘inhuman or degrading treatment’ so that it cannot be used as a remedy for general poverty, unemployment, or lack of resources or medical care except in the most exceptional circumstances.” (at p. 17) This extremely high threshold when it comes to socio-economic rights can be seen in the case law on health matters.

The Human Rights Committee indeed asks for exceptional circumstances, as can be seen in Z. v. Australia where the Human Rights Committee rejected the complaint of an author suffering from chronic heart condition that may require further surgery in the future, considering that “the file does not show that the author’s medical condition in itself is of such an exceptional nature as to trigger the State party’s non-refoulement obligations under article 7” (para 9.5). Violations of the ICCPR in case of deterioration of health condition will only be found on rare occasions and often with little elaboration on the legal basis, as in A.H.G. v. Canada where the Human Rights Committee found what member Yuval Shany called a “contextual violation” in a concurring opinion. He explains:

“Under the circumstances, it was a disproportionate response, since it caused an extremely vulnerable person significant harm, on account of a risk for which he was responsible to a limited degree only, notwithstanding the availability of other, less harmful alternatives for addressing the risk. I cannot exclude the possibility that in other circumstances, involving a less vulnerable individual, posing a greater risk to society, and who cannot be treated in the territory of a State party, the Committee would not find the decision to deport to violate article 7 of the Covenant.” (Appendix II, para 4)

The Committee against Torture, which used to be even more restrictive, recently softened its position with its General Comment No. 4 (2017) where it recognized that victims of torture who need specialized rehabilitation services should not be removed to a State where those are not available or guaranteed (para 22) – in opposition to its previous jurisprudence (in particular, K.K. v. Switzerland at para 6.8). As Cali, Costello and Cunningham noticed, this softening seems in turn to have influenced the Committee against Torture’s case law on Dublin cases (at p. 372) and notably the case referred to by the Committee on the Rights of Persons with Disabilities in the present views, i.e. Adam Harun v. Switzerland.

The European Court of Human Rights also departed from its very restrictive standard. While D. v. the United Kingdom (1997) was at the time often cited as an openness for socio-economic cases[6], it was the only case in which socio-economic deprivation triggered the non-refoulement obligation for years and the circumstances were really exceptional since the applicant’s removal was found to “further reduce his already limited life expectancy and subject him to acute mental and physical suffering” (para 52). The incredibly high threshold was particularly criticized in N. v. the United Kingdom (2008) where the Court declared that “[t]he fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3” (para 42).

The N. v. the United Kingdom judgment nevertheless recognized that there could be “other very exceptional cases” (para 43) than the immediate death situation that could give rise to non-refoulement obligations. These ‘other cases’ were “clarified”[7] by the Court in Paposhvili v. Belgium (2016)[8] and amounted to an extension of the protection scope in favor of persons who:

“although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.” (para 183)

Despite some relaxation, the three international bodies’ case law thus remains more than demanding. It is therefore surprising that the Committee on the Rights of Persons with Disabilities does not really seem to engage with the issue, mentioning only a ‘severe and life-threatening’ standard which it considers the author has met without further explanation. This is criticized by member Lászlo Gábor Lovaszy in his dissenting opinion who found the lack of “clear and reasonable restriction” problematic, pointing out that “[a] State party cannot overtake the responsibility of other State party’s in terms of the quality of social and health care services in general” (para 4).

Interesting for comparison will be the upcoming Grand Chamber judgment of the European Court of Human Rights in Savran v. Denmark[9], on a complaint introduced by a mentally ill Turkish national who was successful in the Chamber judgment – which is cited in the present views – before the case be referred to the Grand Chamber at the request of the State.

3. The burden of proof: a reversal for more equity

The question of who bears the burden of proof, although merely a procedural issue, is of considerable practical importance. While it is commonplace that the burden of proof lies predominantly on the complainant, it remains to determine whether the State shares the burden of finding or establishing the facts. The different international institutions do not adopt the same approach.

The Human Rights Committee does not recognize any kind of reverse or shared burden of proof, which therefore falls solely on the author. The Committee Against Torture is the most progressive since its new General Comment No. 4 provides for a reversal of the burden of proof to be borne by the State “when complainants are in a situation where they cannot elaborate on their case, such as when they have demonstrated that they have no possibility of obtaining documentation relating to their allegation of torture or have been deprived of their liberty” (para 38). This statement seems to go beyond the existing case law of the Committee against Torture which has so far only shifted the burden of proof to the State in cases where the complainant had already sufficiently substantiated its claim[10] – hence suggesting a willingness to go further in involving the State in this task[11].

The European Court of Human Rights recognizes a reversal of the burden of proof once the applicants have provided sufficient evidence to substantiate their case[12]. The Court indeed considers that while it is for the applicant to prove individual circumstances, it is for the State to assess the general situation in the country[13]. The Court of Justice of the European Union adopts the same approach and deems it “necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled”, recognizing that “[a] Member State may also be better placed than an applicant to gain access to certain types of documents”[14]. With regard to health cases, the European Court of Human Rights clarified in Paposhvili v. Belgium that it must be verified “whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3” (para 189) and “the extent to which the individual in question will actually have access to this care and these facilities in the receiving State” (para 190).

The Committee on the Rights of Persons with Disabilities also seems to have chosen to follow this path. It even seems to base its conclusion on this almost purely procedural problem, holding that:

“taking into account that the author submitted several medical certificates before domestic authorities in which her health condition was assessed as severe and life-threatening without the treatment she is receiving in the State party, the State party authorities should, in light of the information available during the domestic proceedings, have assessed whether the author would in fact be able to access adequate medical care if removed to Iraq” (para 7.8)

Observing that it is undisputed between the parties that the State has failed to make such an assessment, the Committee concludes that there has been a violation of Article 15 of the Convention.

4. Tentative conclusions: proceduralization as a useful way to avoid the real debate

In these views, the Committee on the Rights of Persons with Disabilities was awaited. It entered into the already much discussed jurisprudence on non-refoulement, which is even more sensitive when it comes to socio-economic rights. While it had already received a communication on non-refoulement, this was the first case it was considering on the merits.

Its answer is potentially powerful. In its first decision, the Committee is resolutely committed to the protection of the sick, and thus anchors a jurisprudence that is rather favorable to future applications. Perhaps this generous position indeed stems from its single-issue focus: in fine, the Committee is there to speak for a very vulnerable category that has long been left behind, less concerned with the logic of migration control that often guides jurisprudence[15].

However, its answer is also disappointing in that it relies on a merely procedural issue: the burden of proof, of which the State has not assumed its share. No indication is given as to the severity required, apart from an empty reference to a ‘severe and life-threatening’ standard. The cross-fertilization with other international bodies remains limited to the procedural requirement of careful scrutiny, thus hiding the key substantial question of the level of severity.

In this way, the decision fits into a broader jurisprudential trend towards the proceduralization of rights. Although this trend may seem progressive at first glance, it should be closely watched. As Edouard Dubout rightly observed:

“the procedure must remain an accessory to the substance, and not the other way round. In other words, proceduralization in itself is not a virtue. It can only make sense if it is specifically designed to strengthen respect for substantive rights.”[16]

Let us remember, after all, that this is only a first decision on the issue. It will undoubtedly be followed by others, which will have to be looked at closely to see what direction the Committee really decides to take.

 

C. Suggested Reading

To read the case: CRPD, 28 August 2020, N.L. v. Sweden, Communication No. 60/2019.

Case law:

CCPR, 29 March 2016, Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark, Communication No. 2409/2014.

CCPR, 25 March 2015, A.H.G. v. Canada, Communication No. 2091/2011.

CCPR, 18 July 2014, Z. v. Australia, Communication No. 2049/2011.

CAT, 6 December 2018, Adam Harun v. Switzerland, Communication No. 758/2016.

CAT, 23 November 2015, J.K. v. Canada, Communication No. 562/2013.

CAT, 11 November 2003, K.K. v. Switzerland, Communication No. 186/2001.

CPRD, 18 August 2017, O.O.J. v. Sweden, Communication No. 28/2015.

ECHR, 1^st October 2019, Savran v. Denmark, Application No. 57467/15.

ECHR (GC), 13 December 2016, Paposhvili v. Belgium, Application No. 41738/10.

ECHR (GC), 23 August 2016, J.K. and Others v. Sweden, Application No. 59166/12.

ECHR (GC), 27 May 2008, N. v. the United Kingdom, Application No. 26565/05.

ECHR (GC), 28 February 2008, Saadi v. Italy, Application No. 37201/06.

ECHR, 2 May 1997, D. v. the United Kingdom, Application No. 30240/96.

CJEU, 22 November 2012, M. M. v. Minister for Justice, Equality and Law Reform, Ireland, Attorney General, Case C‑277/11.

Doctrine:  

B. Cali, C. Costello and S. Cunningham, « Hard Protection through Soft Courts? Non-Refoulement before the United Nations Treaty Bodies », German Law Journal, 2020, Vol. 21(3), pp. 355-384.

J.-Y. Carlier and S. Sarolea, Droit des étrangers, Bruxelles, Larcier, 2016.

V. Della Fina, R. Cera and G. Palmisano (eds.), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary, Cham, Springer, 2017.

E. Dubout, « La procéduralisation des obligations relatives aux droits fondamentaux substantiels par la Cour européenne des droits de l'homme », Rev. trim. dr. h., 2007, n° 70, pp. 397-425.

European Court of Human Rights, « Immigration », Guide on the case-law of the European Convention on Human Rights, 31 August 2020, pp. 21-22.

European Court of Human Rights – Press Unit, « Persons with disabilities and the European Convention on Human Rights », Factsheet, September 2020, pp. 8-10.

L. Leboeuf, « Expulsion d’étrangers gravement malades. Une clarification du seuil de gravité conventionnel couplée à une responsabilisation des autorités nationales », Newsletter EDEM, février 2017.

J. McAdam, « Climate Change Displacement and International Law: Complementary Protection Standards », UNHCR Legal and Protection Policy Research Series, No. 19, May 2011, PPLA/2011/03.

 

To cite this contribution: M. Courtoy, “Non-refoulement and access to health care: a first positioning by the Committee on the Rights of Persons with Disabilities”, Cahiers de l’EDEM, November 2020.