La prohibición de expulsión de extranjeros por motivos de salud: una evolución jurisprudencial in melius de los derechos humanos

Abstract

This paper focuses on the study of the jurisprudence of the ECHR and the CJEU on the prohibition of expulsion of aliens for health reasons. Both Courts have developed criteria with which they determine whether the expulsion of aliens who are sick is in accordance with the provisions of the ECHR and the rules of EU Law, respectively. In a first stage, originated with D. v. the United Kingdom, the ECHR held a very serious threshold of the illness to decide whether the expulsion of a sick alien is contrary to art. ECHR 3. For its part, the CJEU, in the M’Bodj case, held that the subsidiary protection status should only be granted to the sick alien who is intentionally denied medical assistance in the State of destination. In a second stage, from Paposhvili v. Belgium, the ECHR lowered the level of seriousness required in the illness of the alien to prohibit the expulsion. This position, which guarantees the human rights of the alien, was followed by the CJEU in MP, maintaining that the deficiencies of the health system in the State of destination can be considered a serious damage for the purpose of granting the subsidiary protection status. In general, this jurisprudence shows, on the one hand, a greater commitment to the effective protection of the human rights of the alien subject to expulsion; and, on the other hand, a fruitful judicial dialogue between the ECHR and the CJEU, in terms of prohibiting the expulsion of aliens for health reasons.