The question whether States are obliged to provide international protection to migrants who are (physically or mentally) ill or disabled and cannot receive adequate medical care in their country of origin has caused a dilemma for international bodies. Sending back seriously ill or disabled migrants to places where no adequate medical treatment is available or accessible to them, may lead to intense suffering or even death. At the same time, providing residence rights and ‘free and unlimited health care to all aliens without a right to stay within its jurisdiction’ may place a great burden on a receiving State (see ECtHR, N. v UK, para 44). For this reason, the European Court of Human Rights (henceforth ECtHR), which has been confronted with a series of medical cases of adult migrants over the years, has set a high threshold under Article 3 ECHR. Only in exceptional situations are States obliged to refrain from expulsion because adequate medical treatment is lacking in the country of origin. In the view discussed in this note, the Committee on the Rights of the Child (henceforth: the Committee) applies a lower threshold to a medical case of a migrant child, taking into account the fact that a lack of medical treatment may affect the development of the child. It holds for the first time that the expulsion of a child violates the right to medical care (Article 24) in conjunction with the principle of the best interests of the child (Article 3) and the right to survival and development (Article 6(2) guaranteed by the Convention on the Rights of the Child (henceforth: the Convention).
The case concerns a Russian family with two children originating from Chechnya. They applied for asylum in Switzerland twice, in 2012 (followed by voluntary return to Russia in 2013) and in 2015. They claimed that they were threatened by the Chechen authorities. Both applications were rejected and in March 2018, they were expelled to Russia. The parents complain before the Committee that this expulsion violated the Convention because no adequate and accessible medical treatment was available to their children. The youngest child M.S. (born in Switzerland in 2012) is deaf and in need of cochlear implants. Their eldest child K.S. (born in 2006 in Russia) was diagnosed with post-traumatic stress disorder. In this respect, the complaint refers to a range of Articles of the Convention, including Articles 2, 3, 23(1), 24(1), 26(1), 27 and 37. Moreover, the parents raised a series of other complaints of a substantive and procedural nature, such as: the failure of the Swiss authorities to provide M.S with cochlear implants and ensure that she was taught sign language (Articles 23(1), 24(1), 26(1) and 27 in conjunction with Articles 2 and 3), the inadequacy of reception conditions in Switzerland (Articles 2(2), 6(2), 27(1), 28(1), 29 and 31), the failure to hear K.S. when processing his separate asylum application (under Articles 12 and 22) and the failure to inform the family about the decision to refuse to provide M.S. with cochlear implants. The Committee has declared most of these complaints inadmissible.
In this case note, I will focus on the Committee’s ruling regarding the expulsion of M.S. to Russia, which was declared admissible and is at the core of its view. I also pay brief attention to the admissibility of the complaints. I will not address the Committees ruling that the Swiss authorities’ failure to hear K.S. in the context of his independent asylum application violated Articles 3 and 12 of the Convention (here I refer to the earlier case note of Desmet and Lembrechts).
Medical condition of the children
M.S. was born almost completely deaf in both ears. When she was around 16 months old, the family voluntarily returned to Russia. The Committee notes that, according to a medical certificate of August 2015 (several weeks after the family arrived in Switzerland for the second time), ‘M.S. has shown signs of developmental delay since she left Switzerland for the first time’. During her stay in Switzerland, several doctors stated that M.S. needed cochlear implants in order to enhance her linguistic and other development. They also indicated that such implants may only be inserted in the early years of a child’s life. However, the Swiss authorities refused to provide M.S. with cochlear implants, because she had an uncertain residence status and the treatment required a follow-up of at least two to three years. Instead, M.S. received training in German Sign Language, which allowed her to express basic things. She attended specialized schooling and was assisted by an educational audiologist.
The authors state that Switzerland failed to investigate whether special care services for M.S. would be available in Russia. They claim that access to such services is not guaranteed owing to corruption. As a result of a lack of medical treatment, M.S. would be isolated for the rest of her life and at risk of abuse and discrimination.
The Committee does not give much detail about the medical condition of K.S. It only mentions that, according to a medical certificate issued in 2016, ‘K.S. was diagnosed with severe post-traumatic stress disorder and is suspected of having suffered multiple traumas in his country of origin’. It is not clear whether K.S. received psychotherapeutic treatment in Switzerland. In February 2018, K.S. submitted an independent asylum application based on ‘his diagnosis of post-traumatic stress disorder and the impact that returning to the Russian Federation would have on his academic, social, mental, intellectual, linguistic and psychological development’. The authors argue that the Swiss authorities failed to examine whether K.S. could receive psychotherapeutic treatment in Russia.
Admissibility of the complaints
The Committee declares the authors’ complaints regarding the lack of medical, educational and social protection measures and the reception conditions in Switzerland inadmissible because the domestic remedies had not been exhausted. The Committee finds that the authors should have taken legal action by complaining about the lack of (notification of) decisions. At the same time, the Committee rejects the Swiss Government’s submission that the lawyer representing the authors lacks valid authorization, because the authorization did not mention the name of M.S. and was not dated by the authors. Moreover, the Committee is lenient with respect to the fact that the lawyer has difficulties to stay in touch with the authors. The Committee takes into account that this situation results from the authors’ expulsion to Russia by the Swiss authorities and considers that there is no indication that the authors have lost interest in pursuing the communication (see similarly the Committee’s view in I.A.M. v Denmark in which the authors’ whereabouts were unknown). Consequently, the Committee declares the complaints concerning the expulsion of the children to Russia and the failure to hear K.S. in the context of his asylum application admissible.
The Committee reiterates the refoulement principle it has set out in previous cases: return is prohibited if there are substantial grounds for believing that there is a real risk of irreparable harm. Moreover, referring to General Comment no. 6, it makes clear that such irreparable harm is not limited to violations of the right to life, survival and development (Article 6(2) of the Convention) and the prohibition of torture or other cruel, inhuman or degrading treatment or punishment (Article 37 of the Convention). It may also result from violations of socio-economic rights, such as the right to food and medical care. Return decisions must ensure that ‘the child will be safe, will be provided with proper care and will enjoy his or her rights’. The risk of a serious violation must be ‘assessed in accordance with the principle of precaution. If there are doubts about whether the receiving State can protect the child, expulsion cannot take place (see for comments on this criteria the case note of Klaassen and Rodrigues).
After having confirmed its subsidiary role, the Committee concludes that Switzerland ‘did not take every measure necessary to ensure that M.S. would have access to the urgent medical care and support required for her satisfactory development’ in Russia. Therefore, it has violated Article 24 read in conjunction with Articles 3 and 6(2) of the Convention by expelling M.S. to this country. The Committee holds that the Swiss authorities failed to establish whether M.S. would have timely access to cochlear implants in Russia and that it is unlikely that the family would be able to ensure immediate access to such treatment. Moreover, the Swiss authorities did not look at the special care M.S. would need or examine whether she would be able to learn another type of sign language. The Committee takes into account that the medical situation of M.S. was urgent. It notes that the failure to provide cochlear implants in in the early years of a child’s life can cause significant harm to a child’s health and development. Moreover, it holds that the fact that the family has to move outside Chechnya in order to ensure K.S.’s psychiatric treatment, could complicate M.S.’s access to treatment. M.S. has to be repatriated to Switzerland.
The fact that the Committee brings medical cases under the principle of refoulement is not surprising. It held earlier that ‘non-refoulement obligations apply irrespective of whether serious violations of those rights guaranteed under the Convention originate from non-state actors or whether such violations are directly intended or are the indirect consequence of action or inaction’ (see I.A.M. v Denmark, para 11.3). In medical cases, such as the case at hand here, there is usually no actor of persecution or ill-treatment. Health care systems in countries of origin of asylum applicants often offer a low(er) level of treatment to all their citizens, for example due to a lack of resources. For this reason, the Court of Justice of the European Union has ruled that cases of asylum applicants who claim that medical treatment in their country of origin for their condition is lacking in their country of origin, fall outside the scope of international protection.
The Committee does not define clearly how serious the effect of the lack of adequate medical treatment on the development of the child must be, in order to trigger the principle of non-refoulement under the Convention. Moreover, it make very general statements as to the consequences of the lack of cochlear implants for M.S’s development (see for similar comments on an earlier refoulement case the case note of Klaassen and Rodrigues). The Committee considers that failure to provide cochlear implants at an early age can cause ‘significant harm to a child’s health and development’ and that the Swiss authorities did not ensure access to treatment and support to M.S., which is required for her ‘satisfactory development’. It should be noted in this regard, that it is not clear whether M.S. could actually receive cochlear implants. She was expelled just before she would undergo a scan to determine whether she met the anatomical conditions for cochlear implants.
In its earlier view in D.R. v Switzerland, the Committee gave a bit more explanation concerning the threshold under the principle of refoulement. It considered that this principle ‘does not confer a right to remain in a country solely on the basis of a difference in health services that may exist between the State of origin and the State of asylum, or to continue medical treatment in the State of asylum, unless such treatment is essential for the life and proper development of the child and would not be available and accessible in the State of return’. In that case, the Committee considered treatment for congenital hypothyroidism (a condition resulting from a malfunctioning thyroid), which can cause intellectual disabilities, ‘essential’ for the child’s development’. However, in that case the Committee held that medical treatment was available in Sri Lanka. In future case law, more guidance on the required severity of the effects of a lack of medical treatment on the development of a child is needed.
It is difficult to compare the Committee’s standards with that of other UN committees. Both the Committee against Torture (see for example M.K.M. v Australia, para 8.9 and A.H.G v Canada, para 10.4) and the Human Rights Committee (see for example C. v Australia, para 8.5) have acknowledged that medical cases can fall within the prohibition of refoulement. However, they do not have elaborated standards in this regard. The Committee against Torture has ruled that an expulsion violates Articles 14 and 16 of the Convention against Torture, if no appropriate rehabilitation services are actually available and accessible to a victim of torture in the receiving country (see A.N. v Switzerland and General Comment no 4, para 22).
The Committee applies a lower threshold for finding a violation of the principle of refoulement than the ECtHR. Until 2016, the ECtHR found only one violation of Article 3 ECHR in a case of a man who was close to death at the time of the envisaged expulsion (see the judgment in D. v UK). In 2016 in the case of Paposhvili v Belgium, the ECtHR has extended its protection under Article 3 ECHR in medical cases, but the threshold remained high (see for comments, eg Anderson and Peroni and Peers). Article 3 ECHR protects against expulsion if ‘substantial grounds have been shown for believing that [a person], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’. It is clear that the situation of M.S. would not meet this criteria, since cochlear implants would rather improve her situation than prevent decline.
The Committee does not enter into an examination of the availability and accessibility of medical treatment in Russia (see also its earlier view in D.R. et al v Switzerland, where the Committee only considered that ‘on the basis of the information on file’ treatment of the child was available and accessible in Sri Lanka). It considers that ‘it seems unlikely’ that M.S. has immediate access to cochlear implants. The violation is merely based on the fact that Switzerland failed to conduct a detailed examination of the availability and accessibility of cochlear implants to M.S. Indeed, the Swiss Government only seems to have made very general statements to the Committee with regard to the availability and accessibility of medical treatment for M.S. and K.S in Russia. It refers to the Federal Administrative Court, which considered ‘that children up to the age of 14 years received free medical treatment in the Russian Federation if they were insured and that the Russian Constitution guaranteed free basic medical treatment to all citizens’. The Swiss Government does not specify whether and if so under which conditions and within which time-limits Russian hospitals provide cochlear implants to children. It can thus be derived from the Committee’s view that a state that wants to expel a child with a (serious) medical or psychological condition must thoroughly assess the availability and accessibility of adequate medical care in the country of origin.
With regard to K.S., The Swiss Government also failed to specify which Russian institutions could provide the necessary treatment. The Swiss Court acknowledged that treatment was not likely available in Chechnya but pointed out that the family could take a domestic flight to Moscow or another city where they had previously stayed and where they had contacts, family and friends. It is striking that the Committee remains silent about the accessibility of treatment to K.S. in Russia. Did it just accept that K.S. could receive treatment in Russia, or did it not consider it necessary to address this, since a violation of the Convention has been found with regard to M.S?
In conclusion, even though the threshold under the refoulement principle needs further development in the Committee’s case law, it is clear that the Convention requires that states dealing with medical cases of migrant children take into account the consequences of a lack of adequate medical treatment in the receiving state for these children’s medical care and development. In the European context, it reminds states that in medical cases of children their assessment should not be limited to the restrictive criteria set out by the ECtHR in Paposhvili v Belgium. Moreover, the views of the Committee may inspire the ECtHR when dealing with complaints under Article 3 ECHR in medical cases of children (compare Neulinger and Shuruk v Switzerland, para 131-132).