THE BOTTOM LINE
- Increased State Due Diligence: The Court of Justice of the EU (CJEU) will clarify whether governments must actively verify that essential medical care is actually accessible to a seriously ill individual in their home country before issuing a return order, shifting the burden of proof from the individual to the state.
- Potential Block on Returns: If the CJEU sides with the Dutch court’s reasoning, it could become significantly more difficult for EU member states to deport non-nationals with serious health conditions, creating a new avenue for legal challenges against return decisions.
- EU Law’s Higher Standard: This case highlights a critical principle for businesses operating in Europe: EU law, particularly the Charter of Fundamental Rights, can impose stricter human rights and due diligence obligations on member states than other international conventions.
THE DETAILS
The District Court of The Hague has paused a significant immigration case to seek guidance from the EU’s top court. The case involves a Guinean national suffering from a severe psychotic disorder. While his asylum claim was rejected, his medical condition is life-threatening; without his current treatment in the Netherlands, he faces a “medical emergency” within three to six months. Medical advisors have confirmed that the necessary treatment is technically available in Guinea. However, the individual argues it is not practically accessible to him due to factors like cost, social stigma, his rural origins far from urban clinics, and his own lack of insight into his illness.
This scenario has exposed a crucial legal fault line. Under current Dutch practice, which is based on interpretations of European Court of Human Rights case law, the burden falls on the seriously ill individual to prove they cannot access the available care. The Dutch court is now questioning whether this approach is compatible with the higher standards set by EU law. Specifically, it asks whether the EU’s Return Directive (2008/115), which obliges member states to consider a person’s health and uphold the principle of non-refoulement (not sending someone to a place of harm), requires the government to take a more proactive role. The question is no longer just “Does a hospital exist?” but “Can this specific person actually get the care they need there?”
By referring this question to the CJEU, the Dutch court has elevated a national issue to a pan-European level. A ruling that shifts the investigative burden onto the state would have profound consequences across the EU. It would compel immigration authorities in all 27 member states to conduct a more thorough, individualized assessment of the healthcare situation before finalizing a return decision for a medically vulnerable person. Such a shift would reinforce the absolute nature of the EU’s prohibition on inhuman treatment and could redefine the scope of a state’s duty of care in immigration proceedings.
SOURCE
Rechtbank Den Haag
