Samenvatting

The medical expulsion of seriously ill third-country nationals creates complicated legal issues at the intersection of the question of migration control and protection of human rights. Even though a State has the power to take removal measures, the exercise of this discretion is constrained by European legal norms, in particular, the prohibition of inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). This study examines the circumstances under which EU law and European human rights law preclude the Netherlands from deporting seriously ill third-country nationals.

Using a doctrinal legal methodology, the research scrutinizes the case law of the European Court of Human Rights on medical expulsion, with particular reference to the development of the Article 3 ECHR threshold, particularly following Paposhvili v Belgium. It also considers EU law, focusing on the Return Directive and the EU Charter of Fundamental Rights as interpreted by the Court of Justice of the European Union. These European norms are subsequently analyzed in relation to Dutch legislation and administrative practice, especially Article 64 of the Vreemdelingenwet 2000 and decision-making by the Immigration and Naturalisation Service and the Bureau Medische Advisering.

The analysis concluded that Article 3 of the ECHR is the principal substantive standard governing medical expulsion and therefore calls for an individualised, consequences-based review. There are complementary procedural safeguards in EU law, but no autonomous health-based non-removal standard. Based on the study, Dutch practice partially meets these European requirements. Drawing on these observations, a litigation manual is developed to assist legal practitioners in challenging non-compliant medical expulsion decisions.