Mr. A v. Minister of the Interior

The court of appeal of the Bordeaux region dismissed an appeal by the state challenging an earlier judicial decision to grant a temporary residence permit to a Bangladeshi national with serious respiratory illness. It was argued his medical conditions would be made considerably worse if returned to Bangladesh owing, in part, to the adverse impacts of air pollution in the country. The decision of the Bordeaux court was appealed and reversed by the Supreme Administrative Court of France in December 2021.

The applicant argued to renew his residence permit and for his application for family reunification to be accepted. They questioned of the medical opinions provided by the French office of immigration and integration, mentioning that the Prefect had waived medical confidentiality in 2015. The applicant stressed the specificity of his medical condition, highlighting the need for special treatment for his asthma and sleep apnoea syndrome and insisting on the unavailability of appropriate care in Bangladesh. Additionally, the applicant raised that the atmospheric pollution in Bangladesh would exacerbate his condition.

The Prefect (of Haute-Garonne) put forward several arguments to support the refusal to renew the applicant's residence permit and the rejection of his application for family reunification. The Prefect disputed the validity of the medical evidence provided by the applicant, questioning in particular the necessity of the medical treatment and casting doubt on the justification of the constraints associated with the use of a respirator. In addition, he stressed the availability of the medicines needed for the treatment in Bangladesh and the possibility for the applicant to settle elsewhere in his country of origin.

The administrative court of appeal of Bordeaux rejected the Prefect's appeal on the basis of article L.313-11, 11° of the French Code of entry and residence of foreigners and of the right to asylum ("Code de l'entrée et du séjour des étrangers et du droit d'asile"). It thus confirmed the ruling of the administrative court of Toulouse, which had ordered the Prefect to grant a residence permit to the applicant. To reach its decision, the court took into account several factors relating to the applicant’s medical needs (due to his chronic respiratory problems), the lack of appropriate treatments in his home country and environmental factors in his home country (air pollution severely exacerbating his medical condition).

The case was appealed to the Council of State (Conseil d’Etat). In its appeal, the Minister of the Interior alleged that the Bordeaux administrative court of appeal made two errors of law when assessing the criteria set out in 11° of Article L. 313-11 of the French Code of entry and residence of foreigners and of the right to asylum (now in article L.425-9 of the same Code), by (i) comparing the healthcare systems in France and the country of origin; and (ii) taking into account the exogenous factor of atmospheric pollution in the country of origin.

The Council of State overturned the Bordeaux administrative court of appeal's decision, which had annulled the prefect's refusal to renew Mr. A's temporary residence permit on health grounds. The Council of State clarified that the court should have only assessed whether appropriate treatment was accessible in the home country (Bangladesh), rather than comparing the quality of healthcare to that in France or Europe, and without considering external factors like air pollution in the home country. The case was sent back to the Court of Appeal for reconsideration on the merits in light of this ruling. The Bordeaux Administrative Court of Appeal subsequently reconsidered the case and confirmed the prefect's refusal to renew Mr. A's temporary residence permit in France on 16 June 2022.