FRIENDLY SETTLEMENT BETWEEN THE BELGIAN GOVERNMENT AND A NIGERIAN MOTHER SUFFERING FROM AIDS AND FACING EXPULSION

In today’s Grand Chamber judgment1 in the case of S.J. v. Belgium (application no. 70055/10)
concerning the threatened expulsion from Belgium of a Nigerian mother suffering from AIDS the
European Court of Human Rights: took note of the terms of the friendly settlement and the arrangements for ensuring compliance with the undertakings given, namely the fact that the applicant and her children had been issued with residence permits granting them indefinite leave to remain; and, decided by a majority to lift the interim measure under Rule 39 of the Rules of Court staying execution of the order against the applicant to leave the country and to strike the case out of its list of cases.

Principal facts

The applicant is a Nigerian national who was born in 1989 and lives in Brussels. She arrived in
Belgium in the summer of 2007 and lodged an application for asylum with the authorities.
The Aliens Office, observing that the applicant had already applied for asylum in Malta, requested the Maltese authorities to take charge of her asylum application under the Dublin II Regulation2. On 13 February 2008 the Aliens Office authorised the applicant to remain in Belgium for three months for medical reasons. She subsequently produced a medical certificate stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling. In August 2008 the Aliens Office refused the applicant’s request for leave to remain on medical grounds, finding that treatment for AIDS was available in Malta and was accessible to non-nationals. In early 2009, since the applicant was due to give birth to her second child, the Aliens Office decided to take charge of the asylum application and revoked its August 2008 decision. The file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”), who rejected the asylum application because of inconsistencies in the applicant’s account. The applicant appealed to the Aliens Appeals Board, which upheld the Commissioner General’s decision on the grounds that the applicant’s alleged fear of pursuit and of a real risk of serious harm lacked credibility. In September 2010 the Aliens Office’s medical adviser issued an opinion stating that he saw no objection to the applicant’s return to her country of origin, Nigeria, given that treatment for her illness was available there. The Aliens Office therefore refused the application for leave to remain lodged on 30 November 2007. As the asylum proceedings had also ended with the rejection of her asylum application, the applicant was served on 22 November 2010 with an order to leave the country. On 26 November 2010 the applicant lodged a request under the extremely urgent procedure for a stay of execution of the order to leave the country, citing a risk that she would not have access to the appropriate treatment if she returned to Nigeria and an infringement of her right to respect for her private and family life. On 30 November 2010 the applicant applied to the European Court of Human Rights requesting interim measures under Rule 39 of the Rules of Court, with a view to staying execution of the order to leave the country. On 17 December 2010 the Court requested the Government not to expel the applicant and her children pending the outcome of the proceedings before the Court.

Decision of the Court

On 26 August 2014 the Court received a proposal for a friendly settlement from the Government, in which the latter stressed the “strong humanitarian considerations weighing in favour of regularizing [the applicant’s] residence status and that of her children”. The applicant accepted the proposal subject to the condition that “she and her three children be granted unconditional and indefinite leave to remain”, that she be awarded compensation in an amount of 7,000 euros (EUR) in respect of the pecuniary and non-pecuniary damage she had sustained, and that a residence permit beissued to her in person. The Government informed the Court that they agreed to the conditions stipulated by the applicant. They specified that the applicant’s residence status, and that of her children, would be regularized immediately and unconditionally on an indefinite basis. The Court noted that, on 6 January 2015, the applicant and her children had been issued with residence permits granting them indefinite leave to remain. It considered that the settlement was based on respect for human rights as defined in the Convention and its Protocols, in accordance with Article 37 § 1 of the Convention and Rule 62 § 3 of the Rules of Court. Accordingly, the Court struck the case out of the list under Article 39 § 3 of the Convention.

Source: ECHR press release

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