Leiden Law Blog

The moral dilemma of medical refugees

Posted on by Lennart van Laake in Public Law
The moral dilemma of medical refugees

In the current political debate irregular migrants are often split into two groups. They are either legitimate refugees, who deserve some sort of protection, or they are ‘economic migrants’ or ‘bogus asylum seekers’ who deserve none. As the unauthorized entry into Europe of the latter group is seen as a choice instead of an act of self-preservation, the idea is that this group can be returned to their home country. Reality, however, does not conform to this clear separation between refugees and economic migrants.

Irregular migrants who seek life-saving medical treatment are a category that does not conform to either group. While expelling them to their home country may have equally disastrous consequences compared to traditional refugees, they do not enjoy the same protection under the Refugee Convention. Therefore, European countries seek to keep medical refugees out and expel them if they succeed in entering illegally. The grim consequence this expulsion can have for the migrant involved raises serious human rights issues.

In its D. v. United Kingdom judgment the European Court of Human Rights (ECtHR) first dealt with this issue. The applicant in that case was in the terminal stage of his illness and was about to be expelled to a country where there would be no medicine to treat him or family to nurse him. Due to the exceptional circumstances he would face in the last phase of his life if he were expelled, the ECtHR held that his expulsion would violate his human rights.

The consequence of this judgment has not been that all medical refugees are entitled to healthcare. In N. v. United Kingdom the ECtHR explicitly stated that a ‘mere’ health risk is insufficient to prevent the expulsion of a migrant. It reserves the prohibition of expulsion for ‘very exceptional cases’. The ECtHR seems to therefore generally view medical refugees  as migrants who are seeking a better life and can be expelled, unless certain extreme circumstances apply.

On the one hand, this limited protection for medical refugees is understandable from the point of view of the state. It can even be argued that it is arbitrary to give cutting-edge and highly expensive medical treatment to a person from a developing country just because he entered Europe, while his compatriots have to settle with what is available in their own country. On the other hand, the expulsion of a seriously ill migrant to a place where his illness cannot be treated could mean the end of his life. His expulsion could turn into a death sentence, simply because he had the misfortune to be born in a developing country.

A recent judgment by the European Court of Justice seems to promote the latter perspective. In Abdida the Court found that a ‘serious risk to a grave and irreversible deterioration of his health’ would be sufficient to prevent the expulsion of a medical refugee. Moreover, it also found a duty to provide for the basic needs of such medical refugees. It appears as if the European Court of Justice seems to treat them more like traditional refugees than migrants who are ‘just’ seeking to improve their living conditions.

However, the text of this judgment still allows for many different interpretations. There is no objective standard that can be used to know for certain when the deterioration in the health of an expelled migrant is ‘grave’. This lack of clarity means that those who implement this judgment will have to solve a part of the dilemma created by medical refugees themselves. Given that the stakes are high, I hope they choose wisely.

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