CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 février 2014

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BELGIUM   (Application no. 70055/10)             JUDGMENT       STRASBOURG   27 February 2014       THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 19/03/2015   This judgment may be subject to editorial revision.   In the case of S.J. v. Belgium, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nuβberger,   Boštjan M. Zupančič,   Ann Power-Forde,   Paul Lemmens,   Helena Jäderblom,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 5 November 2013 and on 21 January 2014, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 70055/10) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Nigerian national, Ms S.J. (“the applicant”), on 30   November 2010. 2.     The applicant was represented by Ms S. Micholt, a lawyer practising in Bruges. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department. 3.     The applicant alleged that her expulsion to Nigeria would expose her to a risk of treatment contrary to Article 3 of the Convention and would infringe her right to respect for her private and family life as guaranteed by Article 8 of the Convention. She also complained of the lack of an effective remedy within the meaning of Article 13 of the Convention. 4.     The President of the Section to which the application was assigned decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable, in the interest of the parties and for the proper conduct of the proceedings, not to expel the applicant pending the outcome of the proceedings before the Court.   5. By a decision of 18 December 2012 the Chamber declared the application admissible. 6.     The applicant and the Government each filed further written observations (Rule 59 § 1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Asylum proceedings 7.     The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion. 8.     Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age, on 26 December 2007. 9.     After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007. 10.     On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). On 17 September 2007 the Maltese authorities accepted the request. 11.   The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 33 et seq. below). 12.     Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 20 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”). 13.     On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria. 14.     The applicant appealed to the Aliens Appeals Board. In judgment no.   49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm. 15.     No administrative appeal on points of law was lodged with the Conseil d’État against that judgment. B.     The applicant’s medical, family and social situation 16.     On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment. 17.     The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection. 18.     In October 2007 a course of ARV treatment (a combination of Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”). 19.     During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving , which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children. 20.     On 27 April 2009 the applicant gave birth to a second child by the same father, M.A. 21.     On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir. 22.     On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament. 23.     In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 44 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office. 24.     On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list. 25.     On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms:   “The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems...” 26.     On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa. 27.     On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling through Dutch and the monitoring of her own illness. 28.     A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows:   “Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child.   ... Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups... Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.” 29.     A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children. 30.     In the meantime, on 23 November 2012, the applicant gave birth to her third child. According to the birth certificate, M.A. was again the father. 31.     On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 27 above), stating that the applicant was continuing to receive psychosocial support. 32.     Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit. C.     Refusal of leave to remain on medical grounds and order to leave the country 33.     On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9 ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). 34.     On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months. 35.     At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling. 36.     On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008. 37.     On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows:   “[From] a medical point of view, ... although [Aids] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.” 38.     On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for Aids was available in Malta and was accessible to non-nationals. 39.     The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008. 40.     On 11 March 2009 the Aliens Office revoked its decision of 20   August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 12 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh opinion from its medical adviser concerning a possible return to Nigeria. 41.     On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose. 42.     On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion: “From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.” 43.     On the basis of this opinion and the information received from the Nigerian embassy, the Aliens Office on 27 September 2010 refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows:   «   [The] medication currently being administered to the applicant is available in Nigeria... Nigeria has numerous treatment programmes for the applicant’s condition... The cost is low because the authorities subsidise the medication... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.” 44.     On 20 October 2010 – the asylum proceedings having been concluded in the meantime with the rejection of the applicant’s asylum application (see paragraph 14 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22   November 2010, worded as follows:   “Pursuant to the decision of ... 20 October 2010, the aforementioned S.J. and her children ... are hereby ordered to leave Belgium not later than 20 December 2010... GROUNDS: The applicant has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded (Act of 15 December 1980, section 7, sub-paragraph 1.2). If the applicant fails to comply with this order she faces possible removal from the country and detention for that purpose for the time strictly necessary to enforce the measure, in accordance with section 27 of the same Act. This is without prejudice to any judicial proceedings that may be brought on the basis of section 75 of the Act. In accordance with section 39/2, paragraph 2, of the Act of 15 December 1980, an application to set aside the present decision may be made to the Aliens Appeals Board. The application must be lodged within thirty days of notification of the present decision. A request for a stay of execution may be lodged in accordance with section 39/82 of the Act of 15 December 1980. Except in cases of extreme urgency the request for a stay of execution and the application to set aside must be submitted in a single document.” 45.     On 26 November 2010 the applicant lodged a request under the extremely urgent procedure for a stay of execution of the Aliens Office’s decision of 20 October 2010 and the order to leave the country of 22   November 2010, together with an application to set aside those decisions. She alleged a violation of Articles 3, 8 and 13 of the Convention on account of the risk that she would not have access to the appropriate treatment if she returned to Nigeria and of the infringement of her right to respect for her private and family life. 46.     The request for a stay of execution was rejected by the Aliens Appeals Board in judgment no. 51.741 of 27 November 2010. The Board gave the following reasons for its decision:   “... The applicant acted in an alert and diligent manner in lodging a request on the fourth day following notification of the impugned decision, but has not shown by means of specific evidence that a stay of execution of the measure in question granted under the ordinary procedure would be too late. The impugned order states that the applicant has until 22 December 2010 to leave the country. For the time being, the applicant is not being detained with a view to her repatriation and no date has been set for repatriation. She simply asserts that a stay of execution under the ordinary procedure would be too late since the time taken to process requests is four to five months. The mere fear that the impugned decision could be enforced at any time after 22   December 2010 does not mean that a stay of execution of the decision could not be granted in good time under the ordinary procedure. In the present case it has not been shown that there is extreme urgency. ... The Board would refer to the possibility ... of lodging a request for interim measures under the extremely urgent procedure during the proceedings. In that case, [that request and the request for a stay of execution] may be examined jointly.” 47.     On 8 December 2010 the applicant lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board judgment of 27   November 2010. She alleged that the risk of serious and irreversible harm in the event of her return to Nigeria, and the presence of her two young children, had not been specifically taken into consideration, and that appeals to the Aliens Appeals Board were ineffective. 48.     On 24 December 2010 the time-limit for enforcement of the order to leave the country was extended by the Aliens Office for one month, as follows:   “Grounds: exceptional reason (awaiting decision by European Court of Human Rights). Please request a further extension each month. The request will be reviewed each month in the light of developments in the case.” 49.     On 6 January 2011 the Conseil d’État declared the appeal against the Aliens Appeals Board judgment of 27 November 2010 inadmissible. According to the Conseil d’État , the arguments relied on by the applicant, even supposing that they were admissible, were in any event manifestly unfounded, since the assessment of extreme urgency was a matter for the first-instance court alone and the applicant could still submit a request for a stay of execution under the ordinary procedure together with a request for interim measures made during the proceedings. She therefore had effective remedies available to her. 50.     According to the information in the file, the application to set aside the decisions of the Aliens Office (see paragraph 47 above) is still pending before the Aliens Appeals Board. In reply to a letter from the applicant asking whether a hearing date had been set, the registry of the Aliens Appeals Board informed her in a letter of 14 May 2012 that the court was making every effort to ensure that her case was dealt with as quickly as possible. 51.     On 11 February 2013, following a request from the Government made in the context of the proceedings before the Court, the Aliens Office’s medical adviser prepared a fresh report on the applicant’s medical situation on the basis of a medical certificate issued by the University Hospital in 2010 (see paragraph 22 above). The report noted that the applicant was receiving daily therapy using a combination of three drugs (Kivexa, Telzir and Norvir). The report continued as follows:   “It appears from the medical certificate of 25 November 2010 that the applicant is making good progress and that her immunity has stabilised at 447 with a viral load that was undetectable on 5 May 2010. We have no other medical certificates providing clinical and immunological data after November 2010 and/or concerning a change in the applicant’s medical condition or her medication. The aforementioned medical certificate of 25 November 2010 does not show that travel was or is strongly contra-indicated for this patient [or that she] is in need of medical attention. As regards the availability of medication and monitoring in the patient’s country of origin, Nigeria, the following sources were consulted (this information has been added to the patient’s administrative file): - information from the MedCOI database ... of local doctors working in the patient’s country of origin who work on a contract basis for the medical advisory service of the Dutch Ministry of the Interior, dated 1 June 2011 ... and 28 March 2012...; - information from the site http:/www.abuth.org ...; - information from the site http:/www.buth.org ...; - information from the site http:/www.who.int/selection_medicines/country_lists, ..., containing a list of the main drugs available in Nigeria in 2010. It is clear from this information that drug therapy using a combination of abacavir, lamivudine and protease inhibitors is available in Nigeria. The information shows that the current availability of fosamprenavir in Nigeria is not confirmed, but that other protease inhibitors are available as an alternative, for instance a preparation combining lopinavir and ritonavir... Laboratory tests (to determine CD4 count) are available in Nigeria. Treatment/monitoring by a specialist in internal medicine is also available in that country.” D.     Intervention by the Court in the context of interim measures 52.     On 30 November 2010 the applicant applied to the Court requesting interim measures under Rule 39 of the Rules of Court, with a view to staying execution of the order to leave the country. She relied in particular on the risks to herself and her children in the event of their expulsion to Nigeria, on account of her state of health. While acknowledging that the domestic proceedings had not been concluded, she argued that the remedies in question did not suspend her removal. 53.     On 17 December 2010, under Rule 39 of the Rules of Court, the Court indicated to the Government that they should not expel the applicant and her children pending the outcome of the proceedings before the Court. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Procedure for granting leave to remain on medical grounds 54.     The provisions applicable to requests for leave to remain on medical grounds lodged with the Aliens Office under section 9 ter of the Aliens Act are set out in the judgment in Yoh-Ekale Mwanje v. Belgium (no.   10486/10, §§ 67 and 68, 20   December   2011). 55.   The Aliens Appeals Board recently ruled on the relationship between the above-mentioned section 9 ter of the Aliens Act and Article 3 of the Convention (Aliens Appeals Board judgments nos. 92.258, 92.308 and 92.309 of 27 November 2012), as follows: “3.3. The Board observes that the legislative amendment of the former section 9(3) of the Act, by means of the enactment of section 9 ter , transposed Article 15 of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. Nevertheless, in adopting the wording of section 9 ter of the Act the legislature’s intention was to oblige the defendant to subject the alleged illnesses to a more thorough assessment than that arising out of the case-law relied on by the defendant. Hence, rather than referring purely and simply to Article 3 ECHR in order to define the extent of the assessment that must be carried out by the defendant, the legislature made provision for a number of specific situations. Paragraph 1 of section 9 ter refers in fact to three types of illness which should result in a residence permit being granted on the basis of that provision where no appropriate treatment exists in the country of origin or the country of residence, namely: - those entailing a real risk to life; - those entailing a real risk to physical well-being; - those entailing a real risk of inhuman or degrading treatment. It follows that the wording of section 9 ter cannot be interpreted as systematically requiring a risk ‘to the life’ of the applicant since it makes provision, in addition to a risk to life, for two further possible situations.” 56.     In judgments nos. 225.522 and 225.523 of 19 November 2013 the Conseil d’État quashed the aforementioned judgments nos. 92.258 and 92.309 of the Aliens Appeals Board. It noted that Article 15(b) of the Qualification Directive (Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted), which corresponded in substance to Article 3 of the Convention, had been transposed into Belgian law by section 9 ter of the Aliens Act. In adopting the latter provision, the legislature had clearly and legitimately sought to reserve the benefit of section 9 ter to foreign nationals who were so “seriously ill” that their expulsion would amount to a violation of Article 3 of the Convention, and to ensure that the assessment in question was carried out in accordance with the Court’s case-law as established in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008). The fact that section 9 ter referred to three specific situations did not mean that its scope differed from that of Article 3. The three types of illness, where they attained a minimum level of severity – which had to be high – were apt to satisfy the requirements of Article 3. The Conseil d’État concluded that the Aliens Appeals Board had unduly extended the scope of section 9 ter by ruling that this provision obliged the Belgian State to carry out a more extensive assessment than that arising out of the case-law concerning Article 3 of the Convention. 57.     A few days later, in judgment no. 225.632 of 28 November 2013, a different division of the Conseil d’État came to the opposite conclusion. The judgment adopted the same interpretation of section 9 ter of the Aliens Act as that adopted by the Aliens Appeals Board in judgments nos. 92.258, 92.308 and 92.309 of 27 November 2012 (see paragraph 55 above). The Conseil d’État dismissed the arguments of the Belgian State based on European law, noting that the minimum standards of protection laid down by the Convention and the Qualification Directive could not be relied on in order to narrow the scope of the Belgian legislation. B.     Expulsion from the country 58.     As a rule, any decision refusing leave to remain is followed by an order to leave the country. Enforcement of such an order is governed by section 7 of the Aliens Act. The provisions relevant to the present case read as follows:   “Without prejudice to more favourable provisions contained in an international treaty, the Minister or his or her representative may issue aliens who have not been given leave to enter or reside in the Kingdom for more than three months, or to settle there, with an order to leave the country within a certain period. In the cases referred to in sub-paragraphs 1, 2, 5, 11 and 12, he or she shall be required to issue an order to leave the country within a certain period: ... (2) If the alien has remained in the Kingdom beyond the time-limit laid down in accordance with section 6, or is unable to provide evidence that this time-limit has not been exceeded;   ... Subject to application of the provisions of Title III quater , the Minister or his or her representative may, in the cases referred to in section 74/14, paragraph 3, remove the person concerned. Unless other sufficient but less coercive measures can be applied effectively, the alien may be detained for this purpose for the time strictly necessary for enforcement of the measure, especially where there is a risk of flight or where the alien concerned is seeking to evade or prevent preparations for his or her return or the expulsion procedure. The length of such detention may not exceed two months. ...” 59.     The time-limit for leaving the country and possible extensions thereto are laid down in section 74/14 of the Aliens Act, which reads as follows: “1. The expulsion order shall stipulate a time-limit of thirty days for leaving the country. In the case of third-country nationals who, in accordance with section 6, are not authorised to reside for more than three months in the Kingdom, the time-limit shall be between seven and thirty days. Following a reasoned request submitted by the third-country national to the Minister or his or her representative, the time-limit for leaving the country referred to in the first sub-paragraph shall be extended where evidence is produced demonstrating that voluntary return is not possible within the prescribed time-limit. If necessary, this time-limit may be extended, following a reasoned request submitted by the third-country national to the Minister or his or her representative, in order to take account of specific circumstances such as the length of residence, the existence of children attending school, the finalisation of arrangements for voluntary departure and other family and social ties. The Minister or his or her representative shall inform the third-country national in writing that the time-limit for voluntary departure has been extended. ...” 60.     Minor children are subject to the same regime as the adult accompanying them and must also leave the country if the adult is not given leave to remain in Belgium. At the time of the events in the present case, the Minister for Migration and Asylum Policy had issued a decision to the effect that families with children who were unlawfully resident would no longer be placed in detention in closed facilities unless they had been refused entry to the country at the border. The families concerned were therefore accommodated in “open centres” and invited to cooperate in plans for their voluntary departure. 61.     In May 2011 the Secretary of State for Migration and Asylum Policy announced the construction of accommodation specifically designed for families with children, in closed facility 127 bis in Steenokkerzeel, near Brussels Airport. A new section was inserted in the Aliens Act by means of an Act dated 16 November 2011, making explicit provision for families with minor children to be held pending their expulsion, and worded as follows: Section 74/9 “1. Families with minor children who have entered the Kingdom without satisfying the requirements laid down in sections 2 or 3, or whose residence status has ceased to be regular or is irregular, shall in principle not be placed in facilities of the kind referred to in section 74/8, paragraph 2, unless the facility in question is adapted to the needs of families with minor children. ...” C.     Appeals to the administrative courts 62.     Individual decisions taken by the administrative authorities regarding the residence and expulsion of aliens may be the subject of an appeal to the Aliens Appeals Board. The Aliens Appeals Board is an administrative court established by the Act of 15 September 2006 reforming the Conseil d’État and setting up an Aliens Appeals Board. The duties, jurisdiction, composition and functioning of the Aliens Appeals Board are governed by the provisions of the Aliens Act as amended by the aforementioned Act of 15 September 2006. The procedure before the Aliens Appeals Board is governed by a royal decree of 21 December 2006. 63.     Decisions taken by the Aliens Office under section 9 ter of the Aliens Act may be the subject of an application to set aside under section 39/2 of the Aliens Act. 64.     The application to set aside does not suspend enforcement of the measure in question. Under the legislation, it may be accompanied by a request for a stay of execution of the measure, either under the extremely urgent procedure, which itself suspends enforcement of the measure, or under the “ordinary” procedure, in accordance with section 39/82 of the Aliens Act, which reads as follows:   “1. Where a decision by an administrative authority is subject to an application to set aside under section 39/2, the Board shall have sole jurisdiction to order a stay of execution. A stay of execution shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned decision of the President of the division hearing the application or the aliens appeals judge whom he or she designates for the purpose. In cases of extreme urgency a stay of execution may be ordered on an interim basis without evidence having been heard from some or any of the parties. Applicants who request a stay of execution must opt for either the extremely urgent procedure or the ordinary procedure. They may not, simultaneously or consecutively, either seek a second time to have the third sub-paragraph applied or re-apply for a stay of execution in the application referred to in paragraph 3. Failure to comply may result in the request being declared inadmissible. By way of derogation from the fourth sub-paragraph and without prejudice to paragraph 3, the rejection of a request for a stay of execution under the extremely urgent procedure shall not prevent the applicant from subsequently requesting a stay of execution under the ordinary procedure, where the application under the extremely urgent procedure was rejected on the grounds that the extreme urgency of the situation was not sufficiently established. 2. A stay of execution may be ordered only if the grounds relied on are sufficiently serious to justify setting aside the impugned decision, and if immediate execution of the decision is likely to cause serious, virtually irreparable damage. Judgments ordering a stay of execution may be recorded or amended at the request of the parties. 3. Except in cases of extreme urgency, the request for a stay of execution and the application to set aside must be submitted in a single document. The title of the application should specify whether an application to set aside is being lodged or a request for a stay of execution and an application to set aside. Failure to comply with this formality will result in the application being treated solely as an application to set aside. Once the application to set aside has been lodged any subsequent request for a stay of execution shall be inadmissible, without prejudice to the possibility for the applicant to lodge, in the manner referred to above, a fresh application to set aside accompanied by a request for a stay of execution, if the time-limit for appeals has not expired. The application shall include a statement of the grounds and facts which, in the applicant’s view, justify a stay of execution or an order for interim measures, as applicable. Any order for a stay of execution or other interim measures issued prior to the lodging of the application to set aside the decision shall be immediately lifted by the Division President who issued it or by the aliens appeals judge designated by him or her, if the judge observes that no application to set aside setting out the grounds for such measures has been lodged within the time-limit specified by the procedural regulations. 4. The Division President or the aliens appeals judge designated by him or her shall rule on the request for a stay of execution within thirty days. If a stay of execution is ordered a ruling shall be given on the application to set aside within four months from delivery of the judicial decision. If the alien in question is the subject of an expulsion or removal order which is to be enforced imminently, and has not yet lodged a request for a stay of execution, he or she may request a stay of execution of the decision under the extremely urgent procedure. If he or she lodged a request under the extremely urgent procedure in accordance with the present provision no later than five days, but no earlier than three working days, following notification of the decision, the request shall be examined within forty-eight hours of its receipt by the Board. If the Division President or the aliens appeals judge concerned does not give a decision within that time, the First President or the President shall be informed and shall take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. They may even examine the case and take the decision themselves. If no stay of execution is granted the measure shall again become enforceable. ...” 65.     Section 39/83 of the Act specifies that the expulsion or removal order may not be enforced until at least three working days (any day except Saturday, Sunday or statutory public holidays) after notification of the measure. 66.     If the person concerned opts for the “ordinary” procedure in applying for a stay of execution, he or she may request the indication of interim measures, possibly as a matter of extreme urgency, in accordance with section 39/84 of the Act, which reads as follows:   “Where a request has been lodged with the Board for a stay of execution of a decision in accordance with section 39/82, the Board shall have sole jurisdiction, on an interim basis and in the circumstances set forth in section 39/82, paragraph 2, first sub-paragraph, to order any measures required in order to safeguard the interests of the parties or of persons with an interest in the resolution of the case, with the exception of measures relating to civil rights. These measures shall be ordered, once evidence has been heard from the parties or they have been duly convened, by means of a reasoned judgment of the President of the division with jurisdiction to rule on the merits or by the aliens appeals judge whom he or she has designated for that purpose. In cases of extreme urgency interim measures may be ordered without evidence having been heard from some or any of the parties. Section 39/82, paragraph 2, second sub-paragraph, shall apply to judgments given under this section. The King shall lay down, by a decree approved by the Cabinet, the procedure governing the measures referred to in the present section.” 67.     The examination of a request for interim measures as a matter of extreme urgency follows the procedure laid down by section 39/85 of the Act, which reads as follows:   “If the alien is the subject of an expulsion or removal order which is to be enforced imminently, and has already lodged a request for a stay of execution, he or she may seek, on the basis of interim measures within the meaning of section 39/84, to have the request for a stay of execution examined without delay provided that the Board has not yet ruled on it. The request for interim measures and the request for a stay of execution shall be examined jointly and dealt with within forty-eight hours of receipt by the Board of the request for interim measures. If the Division President or the aliens appeals judge concerned does not give a decision within that time, the First President or the President must be informed and must take the necessary action to ensure that a decision is given within seventy-two hours of the request being received. They may even examine the case and take the decision themselves. Once the request for interim measures has been received, the expulsion or removal order may not be enforced until the Board has ruled on the request or has rejected it. If no stay of execution is granted the measure shall again become enforceable.” 68.     For a request for a stay of execution or for interim measures to be granted as a matter of extreme urgency, the enforcement of the expulsion measure must be imminent (section 39/82, paragraph 4, second sub ‑ paragraph, and section 39/85, first sub-paragraph, of the Aliens Act). This requirement is to be construed in the light of the interpretation of the concept of extreme urgency by the Conseil d’État , in particular in the judgments of the General Assembly of the Administrative Division of 2   March 2005 (nos. 141.510, 141.511 and 141.512): “[The applicant] must demonstrate that the ordinary procedure for a stay of execution would not be effective in preventing the serious damage alleged, bearing in mind the possibility of lodging a request for interim measures as a matter of extreme urgency during the proceedings ..., the two requests being then examined jointly. ... It is common ground that, save in exceptional cases where orders to leave the country are accompanied by coercive measures with a view to repatriation, the opposing party does not systematically review their actual enforcement. Accordingly, a mere reference to an order to leave the country that has been issued is not sufficient to demonstrate the existence of extreme urgency.” 69.     Following this line of case-law, the Aliens Appeals Board has taken the view that, for the danger to be imminent, the alien in question must be subject to a coercive measure aimed at securing his or her departure from the country. In the absence of such a measure, it considers that a situation of extreme urgency has not been established (see, among many other authorities, judgments nos. 456 of 27 June 2007 and 7512 of 20 February 2008). 70.     The provisions cited above must also be construed in the light of their interpretation by the Aliens Appeals Board in seven judgments of the General Assembly of 17   February   2011 (nos. 56.201 to 56.205, 56.207 and 56.208), following the judgment in M.S.S. v.   Belgium and Greece ([GC], no.   30696/09, ECHR 2011). The Board held, in particular, that in order to meet the criteria of a remedy with automatic suspensive effect, a request for a stay of execution under the extremely urgent procedure should be considered to have automatic suspensive effect even if it was submitted outside the time-limit of three working days laid down by section 39/83, but within the fifteen-day time-limit specified by section 39/57 (the time-limit applied to aliens placed at the Government’s disposal). The Aliens Appeals Board further held that if the alien in question had lodged an ordinary request for a stay of execution and the enforcement of the expulsion or removal order became imminent, he or she could lodge a request for interim measures as a matter of extreme urgency. Such a request, according to the text of section 39/85 itself, also automatically suspended enforcement of the expulsion or removal order. 71.     The Constitutional Court, in examining an application for judicial review of the Act of 15 March 2012 amending the Aliens Act, which introduced an expedited procedure for asylum seekers from “safe” countries, ruled in judgment no. 1/2014 of 16 January 2014 on the issue whether applications to set aside and requests for a stay of execution under the extremely urgent procedure satisfied the criteria of effectiveness required by this Court’s case-law concerning Article 13 of the Convention taken in conjunction with Article 3. 72.   The Constitutional Court set aside the impugned Act in part, on the ground that since the Aliens Appeals Board was not required to examine, on the basis of possible fresh evidence submitted to it, the current circumstances of the persons concerned – that is to say, their circumstances at the time of the Board’s decision – in the light of the situation in their country of origin, possible applications to set aside and requests for a stay of execution under the extremely urgent procedure made to that judicial body did not ensure the “close”, “thorough” and “rigorous” scrutiny of the applicants’ circumstances required by this Court (see M.S.S. , cited above, §§   387 and 389, and Yoh-Ekale Mwanje , cited above, §§ 105 and 107). 73.     Observing in addition that the aforeme