Utvisning av svårt sjuka migranter - En kritisk granskning av skyddsomfånget i artikel 3 EKMR

Sammanfattning: The purpose of this essay is to investigate the scope of protection under article 3 of the European convention on human rights in cases where seriously ill migrants face expulsion to a country which cannot provide adequate health care. Starting with a presentation of the prohibition of torture and inhuman or degrading treatment, the essay presents the development of the law regarding the scope of protection of the article. Furthermore, the essay critically analyses how the fact that these cases concern socio-economic interests has affected the scope of protection. After a presentation of the original aim of the article, the applicable methods of interpretation are presented to explain how the article has come to include a principle of non-refoulement. After the case of D. v. the United Kingdom in 1997, the European Court of Human Rights has established that an expulsion can be prohibited under article 3 when the country of destination cannot provide adequate health care. The essay finds that after the case of Paposhvili v. Belgium in 2016, article 3 has a wider scope of protection than in the previous legal position. An expulsion is considered to be inhuman treatment in violation of article 3 when there are “exceptional circumstances” at hand. This refers to situations when a person after removal risks being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or to a significant reduction in life expectancy. The essay then presents the problem of taking socio-economic interests in consideration under a convention of civil and political nature. After this, it is analysed how these interests have affected the scope of protection of article 3. This analysis leads to the conclusion that the socio-economic dimension of these cases is the reason behind the threshold of exceptionality – a threshold that does not apply in other cases of non-refoulement. This is criticised since previous case law has established that socio-economic interests may be protected under the convention, in spite of its civil and political nature.