Atmospheric pollution relevant to asylum claim, holds French court

2 February 2021 by

Air pollution is particularly high in Bangladesh, the asylum seeker’s country of origin

On 18 December of last year, a judgment was handed down by the cour administrative d’appel à Bordeaux (the appeals court of the administrative court of Bordeaux) which, until quite recently, went under the international radar. In a landmark judgment, the Court ruled that the respondent, an asylum seeker from Bangladesh (‘Mr A’), could not be returned to his country of origin owing to two medical conditions: allergic asthma and sleep apnea. What was remarkable about this judgment was that it was the first time that a French court has taken pollution into account in a decision of this kind. The Court stated:

[Mr A] would be confronted upon arrival in his country of origin […] with a worsening of his respiratory disease because of the atmospheric pollution.

An article published by the Guardian brought the case to the attention of the British media, and the story has since been picked up by a number of national papers. This article will seek to shed light on the judgment, which is only available in French, and the legal circumstances leading to this groundbreaking decision.

Facts and procedural history

Mr A is a national of Bangladesh, who entered France on 4 December 2011. He suffers from a chronic respiratory pathology involving severe allergic asthma, treated daily with a combination of medications, and severe sleep apnea, which requires the use of a ventilator each night.

On 29 May 2013, Mr A’s asylum application was refused and on 30 January 2014 his residence application was also refused. He managed to obtain a temporary residence permit in 2015, but this expired in 2017. Attempts to regularise Mr A’s stay, including a request for family reunification on behalf of his wife, and an application for a second renewal of his temporary residence permit, were refused. Mr A was therefore ordered to leave France within 30 days.  However, on 15 June 2020, the tribunal administratif de Toulouse (the Toulouse administrative tribunal) overturned both decisions regarding the denial of his request for family reunification and the refusal of the renewal of his residence permit.

As a result, on 3 July 2020 the local authorities appealed the decision to the cour administrative d’appel à Bordeaux and requested the court to order a stay of execution, which would delay the carrying out of the order of the tribunal administratif de Toulouse.

The judgment

The Second Chamber of the cour administrative d’appel à Bordeaux dismissed the appeal on 18 December 2020, finding it unnecessary to rule on either the request for a stay of execution on behalf of the local authorities and the request for an order to issue a residence permit on behalf of Mr A. The decision was based on Section 11 of Article L.313-11 of the Code on Entry and Residence of Foreign nationals and Right of Asylum (‘CESEDA’), which establishes the circumstances under which a foreign national, suffering from a medical condition, normally living in France, must be issued a residence permit.

These circumstances are:

(i) his health condition requires medical care and the lack of provision of this medical care could have exceptionally serious consequences to his condition; and

(ii) the delivery and characteristics of the country of origin’s healthcare system would not allow for him to effectively access the appropriate treatment.

Under Section 11 of Article L-313-11 of CESEDA, the decision to issue a residence permit is made by the administrative authority following the opinion of a board of physicians of the French Office for Immigration and Integration (‘l’Office français de l’immigration et de l’intégration, OFII).

On 1 October 2017, the board of physicians of the French Office for Immigration and Integration deemed Mr A in need of health care and stated that lack of its provision could have exceptionally serious consequences on his condition. On 25 July 2019 the physician in charge of Médecins du Monde in Toulouse certified that the short and long-term care that Mr A receives has stabilised his respiratory function, going from 58% in 2013 to 70% in 2017. The physician further added that in Bangladesh, where the rate of fine particles of pollutants is one of the highest in the world, asthma-related mortality is 12.92 per 100,000 inhabitants compared to 0.82 in France.

In reaching its decision, the Court relied on information about Mr A’s father, who had died as a result of respiratory failure brought about by an exacerbation in his asthma. The Court found that Mr A, would be exposed to a risk of aggravation of his health condition and to premature death. The Court took into account that healthcare is of a lower quality in Bangladesh, where many of the drugs Mr A relies upon in France would not be available. Furthermore, the Court took into account the fact that power cuts would interrupt Mr A’s use of a ventilator. On this basis, the Court ruled that the refusal to renew his residence permit violated Section 11 of Article L.313-11 of CESEDA.

Commentary

Aside from being a fascinating legal occurrence, which commentators see as fitting into a ‘growing trend around the world to seek institutional accountability for unhealthy environments’, this case may be a first stepping stone in France for the creation of a migration system which properly accounts for environmental factors in the country of origin. As Ludovic Rivière told Infomigrants:

Just as an AIDS patient cannot be sent back to a country where he cannot be treated or a death row inmate to a state that practices capital punishment, Sheel cannot be deported to Bangladesh. We are still a long way from making precedent and creating a real climate refugee status in France.

Because France is a civil law system, Mr Rivière is quite right to emphasise that Mr A’s case falls short of making any real change to the legal landscape in France; the most immigration lawyers can hope for is that it demonstrates a willingness on the part of the French judiciary to interpret Article L.313-11 of CESEDA in the same way.

However, it is possible that Mr A’s case is just as legally significant, if not more so, in its neighbouring common law jurisdiction of England and Wales. The domestic courts here are remarkably flexible in their willingness to take into account the legislative frameworks and jurisprudence of other countries. Indeed, Lord Bingham in the case of Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, which relied upon judgments from more than ten common law and civil jurisdictions, including France, commented:

Development of the law in this country cannot of course depend on a head-count of decisions and codes adopted in other countries around the world, often against a background of different rules and traditions. […] however […] [i]n a shrinking world […] there must be some virtue in uniformity of outcome whatever the diversity of approach in reaching that outcome.

[para 32]

Given the geographical and political ties between the UK and France, and links between the asylum systems, including the existence of the Calais/Dover migrant route, in a ‘shrinking world’ the immigration systems of France and the UK are particularly close to one another. Although not authoritative, the judgment of Mr A is likely to be persuasive in domestic courts.

This is particularly the case given the similarity in terms of legal criteria between Section 11 of Article L.313-11 of CESEDA and the new threshold test established in Paposhvili v Belgium [2016] ECHR 1113 and brought into domestic law by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (and covered by the UKHRB here, here and here). Paposhvili was interpreted by the Supreme Court to mean that a person can resist deportation to their country of origin on Article 3 grounds where there is a real risk of exposure to:

  1. a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering; or
  2. a significant reduction in life expectancy (see para [183] of Paposhvili and paras [27-30] of AM (Zimbabwe).

Indeed, in further similarity to Section 11 of Article L.313-11, accessibility of the treatment in the country of origin is an important requirement under the new legal framework for Article 3 medical cases.[1] Domestic immigration practitioners should not, therefore, overlook Mr A’s case as a ‘sporadic decision’[2] precipitated by a foreign legal code. Instead, it can be seen as part of a progressive European movement in immigration law involving medical conditions, as well as a powerful tool in any Article 3 medical case in which the country of origin possesses adverse environmental factors.

This article is by Ruby Peacock, an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, and Susana Ferrin Perez, an aspiring barrister.


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

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

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