Brussels, 22/07/2014 (Agence Europe) - The subsidiary protection regime, which applies to third-country nationals who do not qualify for refugee status but who still require international protection, should not apply if these nationals claim on medical grounds, irrespective of how serious these are, Advocate General Yves Bot told the Court of Justice of the EU (case C-542/13), on Thursday 17 July.
The asylum application of a Mauritian national was rejected in Belgium. However, following an attack which left him with a serious disability, the Belgian authorities granted him a residency permit on medical grounds. The individual then claimed several benefits, which were denied him on the grounds that these are reserved for beneficiaries of the subsidiary protection regime. He challenged this decision before the Belgian courts, which turned to the Court of Justice to ask whether the fact of his having been issued with a residency permit under these circumstances ultimately equates to offering him a form of subsidiary protection.
According to the Advocate General, this is not the case, for several reasons. First of all, the subsidiary protection regime as defined in Directive 2004/83/EC aims above all to protect individuals for whom there are legitimate grounds for believing that they risk suffering inhumane or degrading treatment if they are returned to their country of origin. It is therefore necessary to establish that this risk is caused (in the form of an act or a deliberate intention), either by the public authorities of the country, or by the fact that these authorities are incapable of protecting the applicant from a threat made by third parties. The absence of adequate medication, for instance, does not come under this heading of risk or threat. Secondly, the directive in question explicitly excludes any situation based on humanitarian grounds, including cases in which adequate medical care cannot be guaranteed in the country of origin and which the applicant's state of health requires.
However, Bot pointed out, the member states can take as their basis the Charter of Fundamental Rights of the EU and the European Convention for the Protection of Human Rights and Fundamental Freedoms, which fall outside the framework of the directive in question and of the subsidiary protection regime, in order to grant individuals protection on imperative humanitarian grounds. (JK)