Foreigners: Wanted Dead or Alive?

Medical Cases before European Courts and the Need for an Integrated Approach to Non-Refoulement

in European Journal of Migration and Law
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While non-refoulement is an absolute principle of international human rights law, its application to seriously ill individuals exposed to premature death and physical and mental suffering because of the substandard medical system in their country of origin seems to have followed a double standard in Europe. On the one hand, medical cases are increasingly treated at the margin of the non-refoulement principle by the European Court of Human Rights, being only covered in highly exceptional cases. On the other hand, seriously ill individuals have been excluded from the scope of subsidiary protection in the European Union as confirmed by the Court of Justice of the European Union. Against such restrictive interpretations, the present article calls for an integrated approach where all non-refoulement claims, including those on medical grounds, are to be assessed along the same criteria so as to ensure seriously ill individuals a genuine right to live in dignity.

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59

See A. Julian (2012), Exceptional Circumstances: Too Exceptional?, Kings College London, available online at: http://www.kslr.org.uk/blogs/humanrights/2012/05/31/exceptional-circumstances-too-exceptional/

68

Commission of the European Communities, 2001. Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection. com(2001) 510 final, p. 48.

89

See in this sense T. Wibault (2015), ‘Is There a Space for Humanitarian Protection within Subsidiary Protection? A Reading of M’Bodj’. European Database of Asylum Law, available online at: http://www.asylumlawdatabase.eu/en/journal/there-space-humanitarian-protection-within-subsidiary-protection-reading-m%E2%80%99bodj.

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