In confirming a Bangladeshi man’s residence permit renewal, a French appeals court has made legal history by taking into account environmental conditions in the applicant’s country of origin. In an apparent first, the Bordeaux-based court “effectively declared that the environment - air pollution - meant it was unsafe to send this man back,” according to Dr. Gary Fuller, an air pollution scientist at Imperial College London. 

The petitioner, originally from Bangladesh, first arrived in France in 2011 after fleeing persecution. After working several years, he was able to obtain a temporary residence permit specifically for foreign nationals requiring special medical treatment in 2015, on account of severe asthma and sleep apnea. However, in 2017 doctors advising the government argued that he could be adequately treated in Bangladesh, which led to a deportation order. 

Although a lower court overturned the deportation order on the grounds that proper medication for his condition could not be reasonably obtained in Bangladesh, the French government opted to appeal. In affirming the lower court’s decision, the Bordeaux Court of Appeals went a step further by including a consideration previously unheard of in France: environmental conditions in the country of origin, specifically Bangladesh’s severe air pollution.

According to the petitioner’s lawyer, Ludovic Rivière, the court essentially decided that sending him back “would mean putting him at real risk of death,” due to Bangladesh’s dangerous levels of air pollution. The court reached its ruling after noting the petitioner’s respiratory disease health requirements, available in France but not in Bangladesh, dramatic improvements to his respiratory capacity since arrival to France, and hearing evidence of how his own father died of an asthma attack at age 54. Rivière added “respiratory failure as a result of an asthma attack would be almost inevitable.”

Yale and Columbia Universities’ Environmental Performance Index ranks Bangladesh 179 out of 180 countries profiled. The Swiss company IQAir, which monitors real-time air quality globally, ranks Bangladesh’s air pollution among the worst in the world.

Legal Implications

Beyond the obvious personal victory for the man at the center of this case, there is also the chance that the outcome could serve as a legal precedent for future climate-induced displacement cases. With French and international media alike considering whether the Bordeaux court’s decision paves the way for ‘climate refugees’, the ripple effects of this ruling remain to be seen.

Though Rivière hopes the case will encourage governments and courts to consider environmental issues more systematically, he acknowledges that “we are still a long way from making precedent and creating a real climate refugee status in France.” That sentiment is shared by experts in migration, including François Gemenne of The Hugo Observatory, who says, while the ruling is unprecedented, consideration of environmental criteria by courts are sporadic and limited, and the main impediment remains a lack of political will to broaden asylum consideration both in France and across the globe. 

Legal actions pursuing state and institutional accountability over pollution are growing. Last month a London coroner ruled air pollution as the cause of death of nine-year old Ella Kissi-Debrah, and in 2019, a mother successfully sued the French government for failing to tackle air pollution that negatively impacted their lives.

Perhaps of most significance to international law though is that the French court’s ruling mirrored the same criteria applied by the UN Human Rights Committee in a January 2020 decision when they upheld the principle of non-refoulement in a landmark asylum decision, ruling that countries may not deport individuals who face climate change-induced conditions that violate the right to life as articulated in the International Covenant on Civil and Political Rights. 

The right to a healthy environment has been incorporated in many countries' laws, and with regional systems recognizing the right, there is growing jurisprudence for its legal application. 

In 2018, the UN Special Rapporteur on human rights and the environment presented the  Framework Principles on Human Rights and the Environment to the UN Human Rights Council, illustrating the widespread global acceptance of the right.

Last year, Climate Refugees was proud to have signed the civil society global call for the UN Human Rights Council to recognize the human right of all to live in a safe, clean, healthy and sustainable environment.

While it will take time for governments and judicial systems to adapt, the individual cases, UN Human Rights Council decision, application of existing human rights law, and the efforts of civil society groups and concerned citizens on relevant human rights considerations, have pushed those in power to consider a wider range of issues when they make political and legal decisions that impact those displaced by climate change and other environmental concerns. 

Surely this French court ruling is a positive decision for this particular man’s life and his family’s future, and also a powerful step in the right direction for advocates engaged in this work. (The Guardian, InfoMigrants, The Daily Telegraph, France 3)