Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

134 | PRACTITIONERS GUIDE No. 6
In the case of M.S.S. v. Belgium and Greece, the Court held that a situation
in which a State, through its inaction, leads an asylum-seeker
to live in the street for several months, with no resources or access
to sanitary facilities and without means to provide for his or her essential
needs, combined with a prolonged uncertainty on the outcome
of the asylum procedure, attains the level of inhuman or degrading
treatment. 413 It also held that a State expelling a person to a country
where he or she risks to be subject to this situation would breach its
obligations under the principle of non-refoulement. 414 In the case of
Sufi and Elmi v. the United Kingdom, in assessing whether situations
of humanitarian crisis could reach the threshold of inhuman or degrading
treatment for the application of the principle non-refoulement, the
Court applied the M.S.S. test, “which requires it to have regard to an
applicant’s ability to cater for his most basic needs, such as food, hygiene
and shelter, his vulnerability to ill-treatment and the prospect of
his situation improving within a reasonable time-frame”. 415 The Court
decided to apply this test because it was “clear that, while drought has
contributed to the humanitarian crisis, that crisis is predominantly due
to the direct and indirect actions of the parties to the conflict” 416 in the
country of return. However, it also warned that, if “the dire humanitarian
conditions in Somalia were solely or even predominantly attributable
to poverty or to the State’s lack of resources to deal with a naturally
occurring phenomenon, such as a drought”, the more stringest test
“in N. v. the United Kingdom may well have been considered to be the
appropriate one”. 417
The Human Rights Committee found, in the case of X.H.L. v. the
Netherlands, that, in respect of an unaccompanied minor, State authorities
had breached the child’s rights to protection (Article 24 ICCPR)
linked with the right not to be subject to cruel, inhuman or degrading
treatment (Article 7 ICCPR) because they had failed to take into consideration,
before returning him to his country of origin, of the best
interest of the child. “[W]ithout a thorough examination of the potential
treatment that [he] may have been subjected to as a child with no identified
relatives and no confirmed registration”, 418 he would be impeded
from “prov[ing] his identity or access any social assistance services” 419
in the country of origin.
413 M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, para. 263.
414 Ibid., paras. 366–368.
415 Sufi and Elmi v. the United Kingdom, ECtHR, op. cit., fn. 327, para. 283.
416 Ibid., para. 282.
417 Ibid..
418 X.H.L. v. the Netherlands, CCPR, Communication No. 1564/2007, 22 July 2011, para. 10.3.
419 Ibid., para. 10.2.