On 22 November 2022, the Court of Justice of the EU (CJEU) ruled in X v. Staatssecretaris van Justitie en Veiligheid (Case C‑69/21). The case concerned the return of a third-country national that would result in the discontinuation of the pain-relief treatment of a rare blood cancer based on medicinal cannabis prescribed in the Netherlands.

The preliminary ruling request firstly aimed at clarifying whether a significant increase in pain intensity due to the lack of medical treatment resulting from a return is contrary to the Charter. The CJEU noted that the Returns Directive 2008/115, read in conjunction with the Charter, must be interpreted as precluding a return in respect of a third-country national who is staying irregularly in a Member State (MS) and suffering from a serious illness, and who would be exposed to the risk of a significant increase in the pain caused by that illness, on account of the only effective analgesic treatment being prohibited in that country. However, the Court affirmed there is a severity threshold, and it requires substantial grounds for believing that the return would expose the third-country national to a real risk of a significant reduction in the life expectancy or a rapid, significant and permanent deterioration in their state of health, resulting in intense pain. The Court found that this also includes a real risk of an increase in the pain, on account of the only effective analgesic treatment being prohibited in the receiving country, it not being necessary that the illness worsens. Not all risks of pain increase meet this high threshold. The Court concluded this condition presupposes that (i) in the receiving country, the only effective analgesic treatment cannot be lawfully administered and (ii) the absence of such treatment would expose them to a real risk of a rapid, significant and permanent increase in the pain of such intensity that it would be contrary to human dignity in that it could cause serious and irreversible psychological consequences, or even lead them to commit suicide.

Secondly, the request aimed to clarify whether the setting of a fixed period within which the consequences of the lack of medical treatment must materialise in order to constitute a medical obstacle is contrary to EU law. In that regard, the Court held that a MS may not lay down a strict predetermined period within which the pain increase must occur to preclude a return decision or removal order. Hence, time limits must be purely indicative and will not exempt the competent national authorities from an actual examination of the situation of the third-country national concerned in the light of all the relevant factors and having regard to the medical condition from which is suffering.

As a third question, the referring court asked whether EU law precludes the competent national authority from adopting a removal order solely based on whether that third-country national is able to travel. Although the prohibition to return also applies if the removal in the strict sense cannot be organized in a manner which ensures no risk of a significant and permanent increase in the illness or pain during that removal, it cannot be concluded that appropriate treatment during the removal is sufficient for MS to adopt a return decision. In fact, the Court held that MS must ensure that the person receives not only health care during removal strictly but also in the receiving country after that removal, when the state of health so requires.

Finally, the referring Dutch court asked whether this situation creates any obligation for the Member States to grant a right of residence permit to the third-country national who is staying illegally and is suffering from a serious illness and cannot be returned. The CJEU clarified that the Returns Directive cannot be interpreted as requiring MS to grant this right as this directive does not lay down rules concerning the right of residence to foreign nationals. Nevertheless, the Court ruled that the state of health of that national and the care received in the MS must be considered, together with other relevant factors (such as social ties, dependency and health fragility), by the competent national authority when examining whether the right to respect for private life of that national precludes the removal. In any case, this should not be understood as a general obligation for MS to refrain solely because of the risk of a deterioration in their state of health in the receiving country, where such a risk does not reach the severity threshold required under Article 4 of the Charter and developed in the first question of the judgment.