CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 avril 2014

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BELGIUM   (Application no. 41738/10)             JUDGMENT       STRASBOURG   17 April 2014     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 13/12/2016   This judgment may be subject to editorial revision.   In the case of Paposhvili v. Belgium, The European Court of Human Rights (Former Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ann Power-Forde,   Ganna Yudkivska,   Paul Lemmens,   Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 18 March 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 41738/10) 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 Georgian national, Mr Georgie Paposhvili (“the applicant”), on 23 July 2010. 2.     The applicant was represented by Ms J. Kern, a lawyer practising in Antwerp. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department. 3.     The applicant alleged in particular that his deportation to Georgia would place him at risk of treatment contrary to Article 3 of the Convention and would infringe his right to respect for his private and family life within the meaning of Article 8 of the Convention. 4.     On 20 June 2012 the Government were given notice of the application. 5.     The applicant and the Government each filed written observations (Rule 54 § 2 of the Rules of Court), as did the Georgian Government (Article 36 § 1 of the Convention and Rule 44 § 1 (a)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1958 and lives in Brussels. 7. He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and the latter’s six-year-old child. The couple had a child together in August 1999 and another in July 2006. A.     Criminal proceedings 8.     On 29 December 1998 the applicant was arrested and taken into custody in connection with an offence of theft. On 14 April 1999 he was sentenced to seven months’ imprisonment, which was suspended except for the period of pre-trial detention. 9.     In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences. 10.     On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft. 11.     On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and was sentenced to fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention. 12.     On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception and corruption. 13.     Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence until August 2007. B.     Asylum applications 14.     On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application. 15.     When interviewed in connection with her asylum claim, the applicant’s wife stated that she had travelled through Germany. 16.     A request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”). 17.     After the German authorities refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999. 18.     On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints were checked. 19.     On 23 October 2000 the Aliens Office informed the applicant’s   lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application. C.     Requests for leave to remain 1.     First request for regularisation on exceptional grounds 20.     On 20 March 2000 the applicant lodged a first request for regularisation for a period exceeding three months, on the basis of section 9(3) (current section 9 bis ) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request, the applicant stated that he and his wife had a daughter born in 1999 and that his wife already had a daughter born in Georgia from a previous relationship. 21.     On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (see paragraphs 59 and 60 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed. 2.     Second request for regularisation on exceptional grounds 22.     On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances in support of his request the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health. 23.     The Aliens Office rejected the regularisation request on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical treatment, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country. 24.     In a judgment of 29 February 2008 the Aliens Appeals Board rejected the application to set aside the Aliens Office’s decision. The Board noted that since the decision in question had not been accompanied as such by an expulsion order, it could not give rise to a risk of violation of Article 3 of the Convention. 3.     First request for regularisation on medical grounds 25.     On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraphs 62 and 63 below) if he were deported to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9 ter of the Aliens Act. 26.     On 26 September 2007 the Aliens Office refused the request on the ground that, under section 55/4 of the Act, the applicant was excluded from its scope of application on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 43 below). 27.     On 17 December 2007 the applicant lodged a request under the ordinary procedure for a stay of execution of that decision together with an application to set aside. He alleged in particular that the Aliens Office had referred exclusively to the ministerial deportation order in finding that section 9 ter of the Aliens Act was not applicable in his case, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention. 28.     In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms:   “It is clear from the wording of [section 9 ter ] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9 ter , from ruling immediately on the exclusion of the person concerned from the scope of application of the said section 9 ter without first taking a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. The examination of that evidence would be superfluous in such a situation since the person responsible for taking the decision has in any event already decided that section 9 ter should not apply.   ... As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any expulsion order, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s deportation to Georgia is hypothetical.” 29.     The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision was not accompanied by any expulsion order. 4.     Third request for regularisation on exceptional grounds 30.     On 10 September 2007, relying on the same grounds as those invoked under section 9 ter of the Aliens Act (see paragraph 27 above) and on his family situation, the applicant lodged a request for regularisation on grounds of exceptional circumstances under section 9 bis of the Aliens Act. 31.     On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11   July 2010. 32.     On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside (Aliens Appeals Board case no. 57.444). In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraphs 48 to 51 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997 ‑ III), that he would not have access to treatment in Georgia and that the withdrawal of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were deported to Georgia he would be separated from his family permanently. 33.     A hearing was held on 16 November 2010.   On 31 May 2011 the Aliens Appeals Board ordered a fresh hearing to enable the parties to update the factual and legal evidence in the case. A hearing was scheduled for 17   November 2011 but was cancelled on 10 November 2011. 34.     According to the information in the case file these proceedings are still pending before the Aliens Appeals Board. 5.     Second request for regularisation on medical grounds 35.     In the meantime, on 2 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9 ter of the Aliens Act. In addition to his various medical problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had family ties and where the medical facilities were unsuitable and expensive. 36.     The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 26 above). 37.     On 16 July 2008 the applicant lodged an application with the Aliens Appeal Board to have that decision set aside (Aliens Appeals Board case no.   29.316). 38.     According to the information in the file those proceedings are currently pending. D.     Expulsion proceedings and intervention of the Court 1.     Order to leave the country under the Dublin Convention 39.     On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant. 40.     After the birth, the family was granted leave to remain until 14   October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist. 41.     The time-limit for enforcement of the order to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraphs 59 and 60 below) and the six-month course of anti-tubercular treatment required by the whole family. 42.     On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until the applicant and his child had made a full recovery. 2.     Ministerial deportation order 43.     On 16 August 2007, in a deportation order issued under section 20 of the Aliens Act, the Minister of the Interior directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”. 44.     The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time (see paragraph 63 below). 45.     The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative. 46.     In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time. 47.     In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he had been transferred on 14 August 2007 to Bruges Prison with a view to enforcement of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison. 3.     Orders to leave the country following refusal of the regularisation requests 48.     In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on grounds of exceptional circumstances (see paragraph 31 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These were served on the applicant on 11 July 2010. 49.     Also on 7 July 2010 it was decided that the applicant should be transferred on 11 July to the Merksplas closed facility for illegal aliens with a view to his expulsion to Georgia. 50.     On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010. 51.     As stated above (paragraph 32), the applicant lodged a request with the Aliens Appeals Board on 26 July 2010 under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (Aliens Appeals Board case no. 57.444). According to the information in the file those proceedings are still pending (see paragraph 34 above). On the same day the applicant also lodged a request under the ordinary procedure for a stay of execution and an application to set aside, directed specifically against the aforementioned order to leave the country dated 7   July 2010 (Aliens Appeals Board case no. 57.447). Those proceedings are likewise still pending. 52.     On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 57 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily. 53.     In a letter dated 30 August 2010 the applicant’s lawyer applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was extended initially until 13 November 2010 and was subsequently extended several times until 28 February 2011. 54.     The applicant continued to make regular requests for extension but received no reply. 55.     On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” on the basis of the ministerial deportation order of 16 August 2007. 4.     Application of Rule 39 of the Rules of Court 56.     On 23 July 2010 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were expelled to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die within an even shorter period of time, far removed from his family. 57.     On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”. E.     The applicant’s state of health and family situation 58.     In August 1999 the applicant’s wife gave birth to a child. 59.     In 2000 the applicant was diagnosed with “active pulmonary tuberculosis responding to antibiotic treatment”. 60.     The applicant continued to be treated for his tuberculosis and received emergency medical assistance and social welfare assistance for that purpose. 61.     In July 2006 the applicant’s wife gave birth to their second child. 62.     In 2006, while the applicant was in prison (see paragraphs 12 and 13 above), he was diagnosed with hepatitis C and chronic lymphocytic leukaemia (CLL) in Binet stage B, with a very high level of CD38 expression (a marker associated with a poor prognosis and a risk of progression of the disease). No treatment was commenced. 63.     As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of treatment based on Leukeran (Chlorambucil). 64.     During his time in Bruges Prison from 14 August 2007 to 27 March 2010 (see paragraph 47 above) the applicant received visits on an almost daily basis from his wife and/or his children. Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010 (see paragraphs 47 and 49 above), informed the applicant that they did not have a record of the number of visits he had received. 65.     A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen from 110,300/mm 3 with 97 % lymphocytes in August 2007 to 28,900/mm 3 with 83 % lymphocytes in January 2008. 66.     During 2008 the applicant’s tuberculosis was found to have become active again. 67.     From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay prescribed antibiotics and bronchodilators. It also noted an increase in his white blood cell count to 72,440 mm 3 , with 85% lymphocytes, and the progression of the applicant’s other conditions. It recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held. 68.     On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility, to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the treatment administered for the applicant’s lung disease was insufficient. It went on to note that the applicant had not received adequate medical care for his leukaemia, which was progressing rapidly towards Binet stage C, and that his treatment needed to be switched to chemotherapy combining Fludarabine and Cyclophosphamide. Lastly, the doctor observed that no medical examination had been carried out in connection with the applicant’s hepatitis C. He recommended that the applicant be admitted to hospital for urgent tests and treatment. The report was forwarded to the Aliens Office. 69.     In a fax dated 28 July 2010 the doctor attached to the Merksplas facility for illegal aliens expressed the view that the applicant required specialised treatment which could not be provided within the closed facility. The doctor therefore recommended that he be released on medical grounds. 70.     On 30 July 2010 the applicant was released (see paragraph 52 above). 71.     On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels (“the University Hospital”), where the applicant was being treated following his release, drew up a certificate which stated as follows: “... D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and ensuing disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the CLL could lead to the patient’s death as a result of the disease itself or the effects of serious infections. A return to Georgia would expose the patient to inhuman and degrading treatment. E. Progression and prognosis Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real so that close monitoring is required even during remission. Chronic obstructive pulmonary disease (COPD): stabilisation if treated. Hepatitis C: good prognosis if patient responds to treatment. ... F. Specific needs Regular biological and radiological monitoring in a specialised facility. Chemotherapy centre.” 72.     The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to “reply to the Court’s questions”. 73.     The report prepared by the medical adviser on that occasion listed the consultations held and the treatment, in particular chemotherapy, undertaken since the applicant’s release in July 2010. It stated that the leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, that the applicant was receiving medical care for his lung disease and that his treatment consisted of Zovirax to prevent herpes, Pantomed to prevent gastric problems and Flixotide, an anti ‑ inflammatory corticosteroid. 74.     Referring to the Court’s judgment in the case of N.   v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows: “On the basis of this medical file it cannot ... be said that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached .... It appears from the file that the diseases to which the medical certificates refer ... are not directly life-threatening. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control. None of the patient’s vital organs is in a condition that presents a direct threat to his life. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is controlled by the treatment, consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being.   ... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival. The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.” F.     Regularisation of the residence status of the applicant’s family 75.     On 5 November 2009 the applicant’s wife lodged a request for regularisation on the basis of section 9 bis of the Aliens Act (exceptional circumstances), relying on her family situation and the length of her residence in Belgium. 76.     On 29 July 2010 she and her three children were granted indefinite leave to remain. II.   RELEVANT DOMESTIC LAW AND PRACTICE A.     Regularisation procedures 1.     Regularisation on grounds of exceptional circumstances 77.     In order to be allowed to remain in Belgium for more than three months, foreign nationals must normally obtain permission before arriving in the country. Section 9 of the Aliens Act provides: “... Except where an international treaty, statute or royal decree provides otherwise, this permission [to remain in the Kingdom beyond the period laid down in section 6] shall be requested by the alien concerned at the Belgian diplomatic mission or consulate responsible for his or her place of residence at home or abroad.” 78.     Foreign nationals whose residence status in Belgium is unlawful or precarious, and who wish to obtain long-term leave to remain without having to return to their country of origin, may apply directly in Belgium provided that they can claim exceptional circumstances. According to established case-law and practice, regularisation of residence status may be granted under section 9 bis (former section 9(3)) of the Aliens Act on a case ‑ by-case basis. Section 9 bis , which replaced section 9(3), reads as follows: “1. In exceptional circumstances, and provided that the alien concerned is in possession of identity papers, leave to remain may be requested from the mayor of the municipality in which he or she is resident, who forwards the request to the Minister or his or her representative. Where the Minister or his or her representative grants leave to remain, the residence permit shall be issued in Belgium. ...” 79.     The Act does not specify either the exceptional circumstances on the basis of which the request may be made from within Belgium or the substantive grounds on which leave to remain may be granted. It is for the Aliens Office to assess the circumstances alleged by the foreign national in each individual case. It begins by examining the exceptional circumstances in order to determine whether the request is admissible. If this is the case, it rules subsequently on the substantive grounds relied on by the foreign national in support of the request for leave to remain. 2.     Regularisation on medical grounds 80.     Requests for regularisation on medical grounds are governed by section 9 ter of the Act, which provides: “1. Aliens resident in Belgium who provide proof of identity in accordance with paragraph 2 and who are suffering from an illness entailing a real risk to their life or well-being or a real risk of inhuman or degrading treatment if no suitable treatment exists in their country of origin or country of residence may apply to the Minister or his or her representative for leave to remain in the Kingdom. The request must be made by registered letter to the Minister or his or her representative and must include the actual address of the individual concerned in Belgium. The alien concerned must submit the request together with all the relevant information concerning his or her illness and the availability and accessibility of suitable treatment in the country of origin or the country of residence. The alien concerned shall submit a standard medical certificate as provided for by royal decree approved by the Cabinet. The medical certificate shall indicate the illness, its degree of seriousness and the treatment considered necessary. The assessment of the risk referred to in the first sub-paragraph, the possibilities for treatment, the accessibility of such treatment in the country of origin or of residence, together with the assessment of the illness, its degree of seriousness and the treatment considered necessary, as indicated in the medical certificate, shall be carried out by a medical official or a doctor appointed by the Minister or his or her representative, who shall issue an opinion in this regard. The doctor in question may, if he or she deems necessary, examine the individual concerned and seek additional expert opinions. ...” 81.     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 of the [Convention] 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.” 82.     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 , cited above. 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. 83.     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 81 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. 3.     Appeals 84.     Decisions taken by the Aliens Office concerning leave to remain may be the subject of an application to set aside before the Aliens Appeals Board.     As the application to set aside does not suspend enforcement of the measure in question, the Aliens Act provides for it to 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. ...” 85.     The provisions cited above must 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). In those judgments the Aliens Appeals Board widened the scope of its review regarding the existence of “serious grounds [for setting aside]” and “serious, virtually irreparable damage” for the purposes of the second paragraph of section 39/82, cited above. In this connection it stated as follows: “The assessment of the serious nature of the grounds relied on is of a prima facie nature in cases involving a stay of execution. This prima facie examination of an arguable claim made by the applicant of a breach of a right guaranteed by the [Convention] must, as stated previously, be compatible with the requirement for remedies to be effective for the purposes of Article 13 of the [Convention], and in particular with the requirement of independent and rigorous examination of any arguable claim. This implies that where the Board observes in the course of its prima facie examination that there are reasons to believe that the complaint is serious or that there is at least room for doubt in that regard, it should regard the grounds relied on as serious at this stage in the proceedings. The harm potentially caused by the Board’s failing to consider as serious, at the urgent-application stage, a ground of appeal which subsequently proves to be well-founded in the final stage of the proceedings, is greater than that caused in the opposite case. In the former case the serious, virtually irreparable damage may already have occurred, whereas in the latter case the decision complained of will, at worst, have been suspended without good reason for a limited period. ... Applicants must adduce evidence which demonstrates both the seriousness of the damage they have sustained or are liable to sustain – meaning, in practical terms, that they must provide information concerning the nature and extent of the alleged damage – and its virtually irreparable nature. However, a brief summary may be considered to comply with the provisions of section 39/82, paragraph 2, first sub-paragraph, of the Act of 15 December 1980 ..., that is to say, where it cannot be disputed by any reasonable person and hence where the defendant, whose aforementioned statutory provisions and rules are designed to safeguard the right to adversarial proceedings, can also immediately apprehend the nature of the damage alleged and can reply to the applicant’s statements in that regard (compare Aliens Appeals Board, 1 December 1992, no. 41.247). The same applies a fortiori if the unduly restrictive or formalistic application of this requirement resulted in a situation in which an applicant who was found by the Board on a prima facie basis at this stage in the proceedings to have an arguable claim under the [Convention] is unable to obtain the appropriate redress required by Article 13 of the [Convention].” 86.     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 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. 87.   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 v. Belgium , no. 10486/10, §§ 105 and 107, 20 December 2011). 88.     An administrative appeal on points of law may be lodged with the Conseil d’État against a judgment of the Aliens Appeal Board dismissing an application to set aside. The appeal does not have suspensive effect. B.     Expulsion orders and entry bans for breaches of public order 89.     The provisions of the Alien Act of relevance to the present case read as follows: Section 20 “Without prejudice to more favourable provisions laid down in an international treaty or to section 21, the Minister may deport aliens who are not settled in the Kingdom if they have breached public order or national security or have failed to comply with the statutory conditions of their residence. Where, under the terms of an international treaty, no such measure may be taken until the alien concerned has been questioned, the opinion of the Aliens Advisory Board must be sought before issuing a deportation order. The other cases in which a deportation order may be issued only after consultation of the Aliens Advisory Board shall be determined by royal decree approved by the Cabinet. Without prejudice to section 21, first and second paragraphs, aliens who are settled in the Kingdom or have long-term resident status and who have committed a serious breach of public order or national security may be deported by the King, after consultation of the Aliens Advisory Board. The expulsion order must be approved by the Cabinet if the measure is based on the individual’s political activities. Deportation and expulsion orders must be based exclusively on the personal conduct of the alien concerned. The fact that he or she has made lawful use of the freedom to manifest opinions or the freedom of peaceful assembly or association cannot constitut