In Limbo: Divergent Conceptualisations of Ill-treatment by European Courts and the Creation of Non-removable Migrants

Table of Contents: I. Introduction. – II. Art. 3 ECHR as an obstacle to deportation. – II.1. Soering and beyond: absolute protection under the ECHR. – II.2. From inflicted to situational risks: cases of illness and non-refoulement. – II.3. What next? Non-refoulement and non-removability. – III. The scope of subsidiary protection under the Directive 2011/95. – III.1. Subsidiary protection under arts 15(a) and 15(c). – III.2. Subsidiary protection under art. 15(b). – IV. Interpreting subsidiary protection after Paposhvili: judicial dialogue and non-removability. – V. Conclusions.

Abstract: Arts 2(f) and 15(b) of the EU Qualification Directive confer subsidiary protection to those third-country nationals in respect of whom there are substantial grounds to believe that, if expelled, would face a real risk of suffering “torture or inhuman or degrading treatment or punishment”. These provisions mirror the wording and risk-assessment criteria of art. 3 of the European Convention on Human Rights. This Article explores the possibility that protection from expulsion under art. 3 of the Convention is not followed by the award of subsidiary protection under EU law, leading to limbo-like situations of non-removability. By analysing the text of the Directive and the jurisprudence of both the Court of Justice of the EU and the European Court of Human Rights, and putting a particular emphasis on the case of MP (C‑353/16 ECLI:EU:C:2018:276), this Article shows an asymmetric dialogue between both courts in this field. By ruling that, in medical cases, applicants will need to be intentionally deprived of treatment in the country of origin in order to access subsidiary protection, the Court of Justice attaches a narrower scope to the very same concept and leaves the door open to situations of non-removability. This Article contends that the Directive allows for a different interpretation that captures the most recent developments of the principle of non-refoulement.

Keywords: expulsion – non-refoulement – subsidiary protection – inhuman or degrading treatment – intentional deprivation – non-removability.

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European Papers, Vol. 6, 2021, No 2, pp. 1173-1192
ISSN 2499-8249 - doi: 10.15166/2499-8249/518

* PhD researcher in European Law, European University Institute, diego.gines@eui.eu.