Can a person who is seriously ill be returned to their country of origin, and on what evidence should that decision rest? New ICMPD research, commissioned and funded by the European Union Agency for Asylum (EUAA), examines how European courts and national authorities handle migration cases in which an applicant’s health condition is central to the outcome.
When someone applying for international protection or facing removal argues that return would cut them off from medical treatment or medication they depend on, decision-makers must assess that claim against Article 3 of the European Convention on Human Rights (ECHR), the provision prohibiting inhuman or degrading treatment. Where that threshold falls, and what evidence is needed to establish it, has evolved considerably over the past three decades, shaped by rulings from the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).
An analysis of recent judgements from these European and national courts in ten selected EU+ Member States, finds a clear pattern of convergence with the standards developed while the substantive bar itself remains high: courts require a real risk of serious, rapid and irreversible harm, or significant reduction in life expectancy, before a removal will violate Article 3 ECHR on medical grounds. What has gradually shifted is the procedural side: courts now increasingly expect detailed, individualised, evidence-based assessments of medical services in countries of origin, and are giving growing evidentiary weight to medical Country of Origin Information (COI) gathered through institutionalised sources, and EUAA MedCOI in particular, over older or less case-specific material.
The clearest development over time concerns the assessment of whether treatment is both available and genuinely accessible. It is no longer enough for a state to show that a treatment exists somewhere in the applicant’s country of origin. Courts increasingly expect proof that the person can realistically obtain the treatment or medication, assessing, for example, whether they can afford it, physically reach it, and continue accessing it over time, without facing discrimination or losing the family support that continuity of care often depends on.
The same development is visible from the administrative side. A comparative look at practice across 23 EU+ countries that currently use the services of the EUAA MedCOI Sector finds that medical claims rarely sit within a dedicated legal framework of their own; instead, they are handled within existing asylum, humanitarian residence, or return procedures, with responsibility usually resting with asylum and immigration authorities under ministries of interior, justice, or home affairs. Severity thresholds, and increasingly rigorous assessment of both the availability and the practical accessibility of treatment, sit at the centre of how these authorities make their decisions, with courts and appeal bodies in several countries now training their own staff as MedCOI users, reflecting how far this evidentiary standard has spread beyond first-instance decision-making.
These findings draw on a comparative study of state practice across those same 23 EU+ countries. The study analyses the handling of medical migration cases and the use of medical COI along national legal frameworks, institutional responsibilities, statistical data and national practices.
This research was produced by the ICMPD Policy Unit and is co-authored by Martin Wagner (Senior Policy Advisor Asylum) and Laetitia Hohwieler (Associate Researcher). The full set of publications is available below:
📄 Briefing note on national and international case law related to MedCOI
📄 Briefing note on medical claims in migration processes across 23 EU+ countries
📄 State practices related to medical COI: Comparative report on 23 EU+ countries
📄 Annex: Country Case Studies - State practices related to medical COI