Doctors say asylum seekers seldom qualify for medical regularisation


According to a group of concerned doctors and lawyers, asylum seekers’ right to residence permits to obtain medical treatment is being flouted

Theory vs practice

In 2009, a 33-year-old Grace from Tanzania (not her real name) arrived in Brussels. For two years, she had known that she was HIV positive; she contracted the virus after she was sexually abused in her 20s.

In Tanzania, Grace had been given antiretroviral drugs, but because the treatment wasn’t adapted to her particular medical and physical condition, the treatment was ineffective. As a result, she picked up lung tuberculosis.

With the help of a Belgian who lived in Tanzania, Grace made it to Brussels. Doctors here discovered that the HIV virus in her body had become resistant to the medication she had been taking, so they decided to give her different antiretroviral medication as well as stronger Aids drugs. The treatment worked.

In the meantime, Grace had applied for and received a negative response to her request for asylum. In 2013, she submitted a request for a prolonged stay for medical reasons, which was also declined.

A doctor from Brussels’ Immigration Office argued that Grace could also receive the treatment that had proven successful in her home country, so there was no reason she should qualify for what’s known as “medical regularisation”.

Afraid that she would be sent back to Tanzania where she wouldn’t be able to obtain the right medication, Grace went underground and hid for four months in an African church. Luckily, the local clinic that initially treated her was able to track her down to provide her with drug samples.

Grace continues to live in Belgium today, without documentation and well aware that she can be arrested and sent back to Tanzania any time.

Doubly ostracised

For Ilse Kint, a doctor at the Institute of Tropical Medicine in Antwerp, Grace’s story is an example of the Immigration’s Office decision-making process.

“Unfortunately for Grace, the Immigration Office didn’t perform an individual investigation into the availability and accessibility of her treatment in Tanzania,” she says. “Otherwise, it would have discovered that this particular type of third-line therapy, which Grace really needs to keep her Aids under control, isn’t available there. Also, the fact that Grace was ostracised by her family because she had Aids wasn’t taken into account.”

If nothing changes, they might as well just scrap the article

- Dr Ilse Kint

Dr Kint is one of the authors of a position paper that questions the application of the article in Belgian law on foreigners that allows asylum seekers to apply for a residence permit for medical reasons. Together with other colleagues, immigration lawyers and social workers, Kint criticises the fact that a large majority of article 9 applicants are sent back to their country of origin, where they have no access to the medical treatment they need.

The list of the experts’ grievances is long: a too-strict interpretation of the disease, superficial analyses of the applicants’ situation and no possibilities for recourse. Kint, who specialises in treating HIV and Aids, knows of refugees who were able to completely recover in Belgium thanks to third-line treatment, only to be sent back to their countries with no certainty about their medical future.

“I know of a man from Chechnya who had recovered very well during his six-month stay here. But the Immigration Office argued that because the Aids drugs and the medical assistance he needed were available in Moscow, he had no right to an orange card,”she says, referring to the medical regularisation slip. “What that means is: ‘If only 10% of the population has access to Aids drugs in a country, you had better make sure you belong to that 10%.’ You can imagine how difficult that is for seropositive gays in Africa. The Office just doesn’t take social accessibility into consideration.”

The concerns that have arisen over application of article 9 appear to also be a consequence of staff shortages at the Immigration Office. “They only have one doctor who judges applicants’ medical conditions. Of course, no doctor can know all the peculiarities of every disease and treatment,” says Kint.

Mental problems, she continues, also play a role in the applicants’ overall health. “They’ve often suffered a lot before they arrived in Belgium, but the Immigration Office cannot take these conditions into consideration under the current practical application of article 9. If nothing changes, they might as well just scrap the article.”

“Tall tales”

In the position paper, Céline Verbrouck of the Belgian Human Rights League argues that the Immigration Office is not basing its decisions on medical need. “Some decisions are, for the most part, based on legal rather than medical grounds,” she writes, “and it very much looks like they are written without consultation with the applicant.”

We’re handing out fewer orange cards simply because of a sharp decrease in the number of applicants

- Geert De Vulder

According to Geert De Vulder of the Immigration Office, the position paper is “teeming with unsupported accusations, half-truths and other tall tales. The medical evaluation is done by a doctor who consults his colleagues regularly, and these colleagues aren’t civil servants. Moreover, it’s not the doctor who decides, but the competent official. And yes, he takes into account all the elements in the applicants’ dossier, so also the non-medical elements as well.”

De Vulder also stresses that the Immigration Office doesn’t have an automatic procedure to assess the availability and accessibility of a specific treatment in a particular country. “If this information were to determine the decision, without consideration of the individual situation of the applicant, it would immediately be revoked by the appeals office.”

Finally, De Vulder says that applicants do receive explanations if their requests are denied. “Every decision and every medical advice mentions the sources on which that decision or advice is supported. That’s a legal obligation,” he says.

Data from the Immigration Office show that the number of article 9 applications has greatly decreased in recent years. In 2011, nearly 40,000 people applied, which resulted in almost 10,000 of the applicants receiving a positive response. In 2014, there were fewer than 20,000 applicants, with 1,500 people receiving the permit.

“So we’re handing out much fewer orange cards these days,” says De Vulder “simply because of a sharp decrease in the number of applicants”.

Dr Kint says she’s used to getting this kind of response from the Immigration Office. “In 2014, we met with them to talk about some specific cases,” but, she claims, they weren’t taken seriously.

The federal ombudsman, in the meantime, is looking into the situation. 

Photo by Francesco Cusenza / StampMedia