2 February 2021 by

Air air pollution is especially excessive in Bangladesh, the asylum seeker’s nation of origin

On 18 December of final yr, a judgment was handed down by the cour administrative d’appel à Bordeaux (the appeals court docket of the executive court docket of Bordeaux) which, till fairly not too long ago, went below the worldwide radar. In a landmark judgment, the Court docket dominated that the respondent, an asylum seeker from Bangladesh (‘Mr A’), couldn’t be returned to his nation of origin owing to 2 medical situations: allergic bronchial asthma and sleep apnea. What was outstanding about this judgment was that it was the primary time {that a} French court docket has taken air pollution under consideration in a choice of this sort. The Court docket said:

[Mr A] can be confronted upon arrival in his nation of origin […] with a worsening of his respiratory illness due to the atmospheric air pollution.

An article published by the Guardian introduced the case to the eye of the British media, and the story has since been picked up by quite a lot of nationwide papers. This text will search to make clear the judgment, which is simply accessible in French, and the authorized circumstances resulting in this groundbreaking choice.

Details and procedural historical past

Mr A is a nationwide of Bangladesh, who entered France on four December 2011. He suffers from a continual respiratory pathology involving extreme allergic bronchial asthma, handled each day with a mixture of medicines, and extreme sleep apnea, which requires the usage of a ventilator every evening.

On 29 Might 2013, Mr A’s asylum software was refused and on 30 January 2014 his residence software was additionally refused. He managed to acquire a brief residence allow in 2015, however this expired in 2017. Makes an attempt to regularise Mr A’s keep, together with a request for household reunification on behalf of his spouse, and an software for a second renewal of his short-term residence allow, have been refused. Mr A was due to this fact ordered to go away France inside 30 days.  Nevertheless, on 15 June 2020, the tribunal administratif de Toulouse (the Toulouse administrative tribunal) overturned each choices relating to the denial of his request for household reunification and the refusal of the renewal of his residence allow.

Consequently, on three July 2020 the native authorities appealed the choice to the cour administrative d’appel à Bordeaux and requested the court docket to order a keep of execution, which might delay the finishing up of the order of the tribunal administratif de Toulouse.

The judgment

The Second Chamber of the cour administrative d’appel à Bordeaux dismissed the enchantment on 18 December 2020, discovering it pointless to rule on both the request for a keep of execution on behalf of the native authorities and the request for an order to situation a residence allow on behalf of Mr A. The choice was primarily based on Part 11 of Article L.313-11 of the Code on Entry and Residence of International nationals and Proper of Asylum (‘CESEDA’), which establishes the circumstances below which a overseas nationwide, affected by a medical situation, usually residing in France, should be issued a residence allow.

These circumstances are:

(i) his well being situation requires medical care and the dearth of provision of this medical care may have exceptionally critical penalties to his situation; and

(ii) the supply and traits of the nation of origin’s healthcare system wouldn’t enable for him to successfully entry the suitable remedy.

Beneath Part 11 of Article L-313-11 of CESEDA, the choice to situation a residence allow is made by the executive authority following the opinion of a board of physicians of the French Workplace for Immigration and Integration (‘l’Workplace français de l’immigration et de l’intégration, OFII).

On 1 October 2017, the board of physicians of the French Workplace for Immigration and Integration deemed Mr A in want of well being care and said that lack of its provision may have exceptionally critical penalties on his situation. On 25 July 2019 the doctor accountable for Médecins du Monde in Toulouse licensed that the brief and long-term care that Mr A receives has stabilised his respiratory perform, going from 58% in 2013 to 70% in 2017. The doctor additional added that in Bangladesh, the place the speed of high quality particles of pollution is among the highest on this planet, asthma-related mortality is 12.92 per 100,000 inhabitants in comparison with 0.82 in France.

In reaching its choice, the Court docket relied on details about Mr A’s father, who had died on account of respiratory failure led to by an exacerbation in his bronchial asthma. The Court docket discovered that Mr A, can be uncovered to a threat of aggravation of his well being situation and to untimely demise. The Court docket took under consideration that healthcare is of a decrease high quality in Bangladesh, the place lots of the medicine Mr A depends upon in France wouldn’t be accessible. Moreover, the Court docket took under consideration the truth that energy cuts would interrupt Mr A’s use of a ventilator. On this foundation, the Court docket dominated that the refusal to resume his residence allow violated Part 11 of Article L.313-11 of CESEDA.

Commentary

Apart from being a captivating authorized incidence, which commentators see as becoming right into a ‘rising pattern around the globe to hunt institutional accountability for unhealthy environments’, this case could also be a primary stepping stone in France for the creation of a migration system which correctly accounts for environmental components within the nation of origin. As Ludovic Rivière told Infomigrants:

Simply as an AIDS affected person can’t be despatched again to a rustic the place he can’t be handled or a demise row inmate to a state that practices capital punishment, Sheel can’t be deported to Bangladesh. We’re nonetheless a good distance from making precedent and creating an actual local weather refugee standing in France.

As a result of France is a civil regulation system, Mr Rivière is sort of proper to emphasize that Mr A’s case falls wanting making any actual change to the authorized panorama in France; essentially the most immigration attorneys can hope for is that it demonstrates a willingness on the a part of the French judiciary to interpret Article L.313-11 of CESEDA in the identical manner.

Nevertheless, it’s doable that Mr A’s case is simply as legally vital, if no more so, in its neighbouring frequent regulation jurisdiction of England and Wales. The home courts listed here are remarkably versatile of their willingness to consider the legislative frameworks and jurisprudence of different international locations. Certainly, Lord Bingham within the case of Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, which relied upon judgments from greater than ten frequent regulation and civil jurisdictions, together with France, commented:

Improvement of the regulation on this nation can not in fact rely on a head-count of choices and codes adopted in different international locations around the globe, usually in opposition to a background of various guidelines and traditions. […] nonetheless […] [i]n a shrinking world […] there should be some advantage in uniformity of end result regardless of the variety of method in reaching that end result.

[para 32]

Given the geographical and political ties between the UK and France, and hyperlinks between the asylum programs, together with the existence of the Calais/Dover migrant route, in a ‘shrinking world’ the immigration programs of France and the UK are significantly shut to 1 one other. Though not authoritative, the judgment of Mr A is more likely to be persuasive in home courts.

That is significantly the case given the similarity by way of authorized standards between Part 11 of Article L.313-11 of CESEDA and the brand new threshold take a look at established in Paposhvili v Belgium [2016] ECHR 1113 and introduced into home regulation by the Supreme Court docket in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (and coated by the UKHRB here, here and here). Paposhvili was interpreted by the Supreme Court docket to imply that an individual can resist deportation to their nation of origin on Article three grounds the place there’s a actual threat of publicity to:

  1. a critical, fast and irreversible decline in his or her state of well being leading to intense struggling; or
  2. a major discount in life expectancy (see para [183] of Paposhvili and paras [27-30] of AM (Zimbabwe).

Certainly, in additional similarity to Part 11 of Article L.313-11, accessibility of the remedy within the nation of origin is a vital requirement below the brand new authorized framework for Article three medical circumstances.[1] Home immigration practitioners mustn’t, due to this fact, overlook Mr A’s case as a ‘sporadic choice’[2] precipitated by a overseas authorized code. As a substitute, it may be seen as a part of a progressive European motion in immigration regulation involving medical situations, in addition to a strong device in any Article three medical case wherein the nation of origin possesses opposed environmental components.

This text is by Ruby Peacock, an aspiring barrister and presently a authorized and coverage intern on the Authorized Assets Centre in Cape City, and Susana Ferrin Perez.


[1] AM (Zimbabwe) v Secretary of State for the Dwelling Division [2020] UKSC 17, para [23].

[2] Anne-Diandra Louarn, ‘A Bangladeshi migrant turns into the primary ‘environmentally displaced’ individual in France’, Infomigrants, 14 January 2021. Out there at: https://www.infomigrants.net/en/post/29589/a-bangladeshi-migrant-becomes-the-first-environmentally-displaced-person-in-france [accessed 19 January 2021].