A Supreme Court judge has described the European Court of Human Rights’ decision in *Paposhvili v Belgium* as a procedural and clarificatory development in the law on removing seriously ill people, cautioning against treating it as a dramatic expansion of the protection under Article 3 of the European Convention on Human Rights.
Justice O’Donnell delivered his separate judgment on 8 March 2018 in an appeal brought by DE, an infant suing through his mother and next friend, against the Minister for Justice and Equality, the Garda Commissioner, Ireland and the Attorney General. He said he fully agreed with the Chief Justice’s judgment and added observations on arguments about *Paposhvili*. The source does not set out the Chief Justice’s reasoning or the court’s operative order in the appeal.
The appellant’s counsel argued that *Paposhvili* significantly expanded the circumstances in which removing someone with a serious medical condition could breach Article 3. Counsel for the State authorities argued that it clarified existing case law. Justice O’Donnell said both positions were correct to some extent.
He noted that the European Court’s Grand Chamber had set out a test involving a seriously ill person who, though not at imminent risk of death, could face a real risk of a serious, rapid and irreversible decline in health, intense suffering or a significant reduction in life expectancy because appropriate treatment was absent or inaccessible in the receiving country. But Justice O’Donnell stressed that *Paposhvili* centred on shortcomings in Belgian procedures: the Article 3 issue had not been considered by a domestic decision maker before a deportation order was made. The Grand Chamber found a Convention breach on that procedural basis, he said, and did not itself decide that deportation would in fact violate the applicant’s Article 3 rights.
Justice O’Donnell said the Article 3 threshold should remain high in cases involving naturally occurring illness and limited medical resources in the receiving country. He cautioned that differences between healthcare systems do not, by themselves, mean that removal breaches Article 3.
He also distinguished what the law requires from what a minister may permit on humanitarian grounds. He said the Minister could allow the appellant to remain even if the Minister considered that the Constitution or Convention did not require it. The judgment records that the appellant had been born in Ireland, had lived there all his life for more than nine years, had a serious medical condition and had received expert care since birth. Justice O’Donnell said those matters, along with prognosis, future care and community integration, were to be taken into account when deciding whether to deport or revoke a deportation order. He added that a discretionary decision remained reviewable under domestic law.