European Court of Human Rights

Information Note on the Court’s case-law 183

March 2015

S.J. v. Belgium (striking out) [GC] - 70055/10

Judgment 19.3.2015 [GC] See: [2015] ECHR 318 & [2014] ECHR 213

Article 37

Article 37-1

Striking out applications

Application concerning absence of suspensive effect of application for judicial review of deportation order or of refusal of leave to remain: struck out following friendly settlement

Article 13

Effective remedy

Absence of suspensive effect of application to Aliens Appeals Board for judicial review of deportation order or of refusal of leave to remain: struck out following friendly settlement

Facts - On 30 July 2007, when the applicant, a Nigerian national, was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father had tried to put pressure on her to have an abortion. In May 2010 the Commissioner General for Refugees and Stateless Persons rejected the asylum application because of inconsistencies in the applicant’s account. That decision was upheld by the Aliens Appeals Board.

The applicant was diagnosed as HIV positive in August 2007 and has been undergoing treatment since that time.

In the meantime the applicant lodged an application for leave to remain on medical grounds which was rejected on the basis that she could be treated in Nigeria. An order to leave the country was served on her. The applicant lodged a request under the extremely urgent procedure for a stay of execution of the measure, together with an application to set aside the decisions in question. The request for a stay of execution was rejected by the Aliens Appeals Board. The applicant lodged an appeal on points of law with the Conseil d’État against the judgment of the Aliens Appeals Board, alleging that the risk of serious and irreversible harm in the event of her return to Nigeria, and the presence of her two young children - born in April 2009 and November 2012 - had not been specifically taken into consideration, and that appeals to the Aliens Appeals Board were ineffective. On 24 December 2010 the time-limit for leaving the country was extended by the Aliens Office for one month. On 6 January 2011 the Conseil d’État declared the appeal against the Aliens Appeals Board judgment inadmissible. According to the information in the file, the application to set aside the decisions of the Aliens Office is still pending before the Aliens Appeals Board.

In a judgment of 27 February 2014 a Chamber of the Court held unanimously that there had been a violation of Article 13 taken in conjunction with Article 3, as the applicant had not had an effective remedy in the sense of one which had automatic suspensive effect and by which she could obtain an effective review of her arguments alleging a violation of Article 3 of the Convention, given that applications to the Aliens Appeal Board to set aside an order to leave the country or a refusal of leave to remain did not suspend enforcement of the removal order. The Chamber further held by a majority that enforcement of the decision to deport the applicant to Nigeria would not entail a violation of Article 3. It held unanimously that, even supposing that the Court had jurisdiction to examine the complaint of a violation of Article 8, there had been no violation of that provision.

On 7 July 2014 the case was referred to the Grand Chamber at the request of the Government and the applicant.

Law - Article 37: In 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 regularising the applicant’s residence status and that of her children.

In September 2014 the applicant decided to accept the proposal made by the Belgian State, subject to three conditions: that she and her three children be granted unconditional and indefinite leave to remain, that she be awarded compensation in an amount of EUR 7,000 in respect of the pecuniary and non-pecuniary damage she had sustained, and that the residence permit be issued to her in person. The Government informed the Court that they agreed to the conditions stipulated by the applicant, and on 6 January 2015 the applicant and her children were issued with residence permits granting them indefinite leave to remain.

The Court further considered that the settlement was based on respect for human rights as defined in the Convention and its Protocols.

Conclusion: struck out (sixteen votes to one).

 

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