ECJ on deportation of sick people: Deportation stop only in case of severe pain

Status: 11/22/2022 1:44 p.m

Can a sick person be deported if pain therapy is denied to him in the receiving country? No, according to the European Court of Justice. However, there are high requirements for this.

By Kerstin Anabah and Max Bauer, ARD legal department

The man from Russia is 34 years old and has been suffering from a rare blood cancer since he was 16. His illness is being treated in the Netherlands, and he is also being treated there with medicinal cannabis for his pain. However, he is threatened with deportation because his application for asylum was rejected and he is therefore obliged to leave the country.

The man is resisting the deportation. Because: In Russia, pain therapy with cannabis is not permitted. The ill Russian plaintiff submits: Without the cannabis therapy, his pain is so great that he can no longer sleep or eat. Depression and suicidal thoughts are the result if his pain is not treated medically with cannabis. Other pain therapies would not help with his cancer against the pain.

Deportation stop otherwise only if the condition deteriorates

According to European law, the deportation of a seriously ill person can constitute inhuman and degrading treatment and is therefore unlawful. However, such a ban on deportation only applies in exceptional cases. In the past, deportations were only stopped when the state of health of a sick person threatened to deteriorate quickly and severely. That is the line of the ECJ and also of the European Court of Human Rights in Strasbourg.

In the case of the Russian asylum seeker, there is a peculiarity. His cancer could be treated in Russia. But not the severe pain that comes with cancer. Because: Medical cannabis is not legally available in Russia.

The Advocate General at the ECJ had applied for recognition of an obstacle to deportation in such cases. If the only effective painkilling treatment is not available in the country of origin of a rejected asylum seeker, it is inhumane to deport him.

“Rapid, significant and irreversible increase” in pain

The European Court of Justice now says: An increase in pain can prohibit deportation if adequate pain therapy is not available in the country of origin. However, the ECJ sticks to the high requirements of this obstacle to deportation. A ban on deportation only exists if there is a risk of a “rapid, significant and irreversible increase” in pain after deportation.

However, the ECJ has rejected a fixed deadline for when the considerable increase in pain would have to occur after deportation. The Dutch courts had previously only considered deterioration in health as an obstacle to deportation, which occurred within three months of discontinuing treatment.

In individual cases, the judgment may have an impact on the interpretation of German law. The German immigration authorities must now take into account that severe pain can be an obstacle to deportation.

ECJ file number C-69/21

ECJ judgment: Ban on deportation of a cancer patient due to discontinuation of cannabis therapy

Max Bauer, ARD legal department, 11/22/2022 12:24 p.m

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