Winning the battle but losing the war: ECHR concludes Zimbabwean claimant unlawfully detained but refuses to award damages

 

In SMM v. THE UNITED KINGDOM – 77450/12 (Judgment : Violation of Article 5 – Right to liberty and security (Article 5-1 – Lawful arrest or detention)) [2017] ECHR 582 (22 June 2017), a Zimbabwean national residing in the UK, complained to the ECHR that his detention from 28 November 2008 to 15 September 2011 was in violation of Article 5  1 (f) of the Convention, was lawful under domestic law and was unreasonable, arbitrary and disproportionate.

Even though S.M.M, had been detained for a period of two and half years and  was  considered vulnerable as someone suffering from serious mental health problems, nothing much turned upon  the issues  of the  stay on forced removals to Zimbabwe  that was in place during his period of detention but most importantly,  because of his conduct during the period of detention, the ECHR refused to  afford the applicant any financial compensation  for the  period during which he was found to have been  unlawfully detained.

 

Summary Background

S.M.M, a failed asylum seeker at that time, was on 13 August 2007  convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment.

On 14 November 2008, he was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers.

S.M.M made a second asylum application on 27 March 2008.

On 20 February 2009, he was admitted to hospital for a psychiatric assessment and was sectioned for six days after his mental health deteriorated significantly.

On 14 January 2011, he submitted his application for permission to apply for judicial review, in which he challenged his continuing detention. S.M.M was refused permission to apply for judicial review on the papers. Permission was also  refused at a renewed oral hearing.  The Court of Appeal also refused permission to appeal the decision of 31 October 2011, finding that the High Court had been correct on every point.

As regards the asylum claim, ultimately,  following a series of appeals, on  20 November 2012 the Upper Tribunal allowed his asylum appeal on human rights grounds. On 30 January 2013 the deportation order  that had been  issued was revoked and he was subsequently granted discretionary leave.

 

Applicable United Kingdom Enforcement Instructions and Guidance and non- removal Policy to Zimbabwe

The Court noted the following as relevant:

  • Chapter 55.10 of the United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance set out the detention policy. Detention should be the exception for those suffering from a serious mental illness, or where there is independent evidence they have been tortured
  • In 2008, the United Kingdom Border Agency aimed to give half of all asylum applicants a decision within one month of application and to give 80 per cent a decision within two months according to “Management of Asylum Applications by the UK Border Agency”, by the Comptroller and Auditor General for the National Audit Office (HC 124 Session 2008-2009 23 January 2009).
  • The Court noted that in RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 the Asylum and Immigration Tribunal indicated that those at risk on return to Zimbabwe were not simply those who were seen to be supporters of the Movement for Democratic Change but anyone who could not demonstrate positive support for Zanu-PF or alignment with the regime. Although there had been voluntary removals in 2007, 2008, 2009 and 2010, prior to 14 October 2010 there was a moratorium on enforced removals to Zimbabwe. On 14 October 2010 the policy changed, but the new policy remained in suspense pending the decision of the Upper Tribunal in the case of EM (Zimbabwe) CG [2011] UKUT 98 (IAC). This judgment, which was promulgated on 11 March 2011, found that there had been a well-established and durable change for the better in Zimbabwe since the guidance in RN. On 18 June 2012 the Court of Appeal allowed the claimant’s appeal against this decision and remitted the case to the Tribunal. On 31 January 2013 the Tribunal reconsidered the case and confirmed the country guidance given in EM.

 

The Hardial Singh principles observed

The Court observed that in reviewing the continuing legality of immigration detention, the domestic courts apply the principles identified in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and authoritatively summarised by Lord Justice Dyson in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at §§ 46-47 (see J.N. v. the United Kingdom, no. 37289/12, § 33, 19 May 2016):

“… the following four principles emerge:

i)  The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii)  The deportee may only be detained for a period that is reasonable in all the circumstances;

iii)  If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv)  The Secretary of State should act with the reasonable diligence and expedition to effect removal”.

 

Arguments based on absence of fixed time-limits on UK system of immigration detention

The Court noted that the applicant’s complaints included a submission that the system of immigration detention in the United Kingdom – in particular, the absence of fixed time-limits and automatic judicial review – does not comply with the “quality-of-law” requirements of Article 5 1(f) of the Convention.

The Court stated that in the recent case of J.N. v. the United Kingdom, no. 37289/12, 19 May 2016,  this argument was expressly rejected. In doing so,  the Court had found that, despite the absence of fixed time-limits and/or automatic judicial review, the system of immigration detention was sufficiently accessible, precise and foreseeable in its application because it permitted the detainee to challenge the lawfulness and Convention compliance of his ongoing detention at any time. In considering any such challenge, the domestic courts were required to consider the reasonableness of each individual period of detention based entirely on the particular circumstances of that case, applying a test similar to  that required by Article 5  1 (f) in the context of “arbitrariness” – the Hardial Singh test.

The Court concluded that given that S.M.M’s detention had a basis in domestic law, the applicable law was sufficiently accessible, precise and foreseeable, and his complaints concerning the “lawfulness” of his detention were  rejected.

 

Areas where the Court was un-persuaded:

Court’s reasoning and considerations  were as follows:

  • Where an applicant is bringing a challenge under the Hardial Singh principles at the domestic level, it may be presumed, unless the domestic courts expressly indicate otherwise, that he is raising in substance all the arguments that the ECHR Court would consider under Article 5  1 (f) – that included the arguments that the Government failed to act with due diligence and consequently his detention was excessively lengthy.
  • The Hardial Singh principles applied by the United Kingdom courts are almost identical to the test applied by the ECHR under Article 5 1 (f) of the Convention in determining whether or not detention has become “arbitrary”.
  • The Court reiterated that under the sub-paragraphs of Article 5 .1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”- it must conform to the substantive and procedural rules of domestic law.
  • In addition to the requirement of “lawfulness”, Article 5 § 1 also requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness.
  • The Court further stated that where a person has been detained under Article 5 1 (f), the Court, interpreting the second limb of this sub-paragraph, has held that, as long as a person was being detained with a view to deportation, that is, as long as action was being taken with a view to deportation, Article 5 1 (f) did not demand that detention be reasonably considered necessary, for example, to prevent the individual from committing an offence or fleeing. It was therefore immaterial whether the underlying decision to expel could be justified under national or Convention law.
  • It was noted that the Court held in Chahal that the principle of proportionality applied to detention under Article 5 § 1 (f) only to the extent that the detention should not continue for an unreasonable length of time; thus, it held that “any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible”.
  • The Court stated that the domestic courts’ conclusions concerning the S.M.M’s state of mental health and evidence of his torture were factual findings, which were not for the Court to interfere. Mindful of the scope of its review when examining lawfulness under Article 5 . 1, the Court did not find that the applicant had adduced any reason which could require it to diverge from the national courts’ conclusions concerning the applicability of the relevant policy concessions.
  • Given that the applicant’s detention had a basis in domestic law , the applicable law was sufficiently accessible, precise and foreseeable, the applicant’s complaints concerning the “lawfulness” of his detention were rejected.
  • As regards whether the applicant was detained with a view to his deportation, the Court accepted the domestic courts’ conclusions that the Secretary of State was right to find that the applicant’s deportation could be effected within a reasonable period under the third Hardial Singh principle. In this connection, it was noted that commenting on the steps taken by the authorities to ready the applicant for deportation whilst the stay on forced removals to Zimbabwe was in place, when refusing permission to renew the application for judicial review on 28 October 2011, Mr Justice Ouseley considered that: “It is perfectly clear that the resumption of forced removals [after 14 October 2010] would require an effort of engagement with the Zimbabwe authorities to achieve documentation and circumstances for return which would enable them to take place. That was bound to take time, and there is nothing before me to indicate that the prospects of removal were nil or the efforts did not take place.”
  • The principal question for the Court to consider was therefore whether, at any time between 28 November 2008 (when his criminal sentence ended) to 15 September 2011 when he was released, the applicant’s detention could be said to have been “arbitrary”. It was noted that in the present case there was no suggestion that the authorities had at any time acted in “bad faith”. Furthermore, it could not be said that the place and conditions of detention were not appropriate for its purpose. The applicant was assessed as suitable for immigration detention under the relevant policies. The applicant had not provided any reasons which would make it appropriate for the Court now to find that the domestic authorities should have come to different conclusions.
  • The Court noted with some concern that the period of detention under challenge lasted for over two and a half years, during which time the applicant was exercising his right to bring proceedings challenging the decision to deport him, however the Court was satisfied that, in the particular circumstances of the case, the requirements of Article 5 .1 had been met. It was observed that pursuant to the Secretary of State’s published policy on immigration detention, “wherever possible, alternatives to detention should be used”. It was noted that the domestic courts concluded that S.M.M. was detained lawfully under that provision, taking into account the fact that he was a repeat offender who had failed to comply with the conditions of his stay and previously absconded, and did not have close ties in the United Kingdom which might mitigate the risk of him absconding again. Similar conclusions could be found in the decisions rejecting S.M.M.’s bail application. It was noted that the applicant withdrew a later bail application in November 2010. The Court further noted that limited – if any – alternatives to detention were available in the present case. Reporting requirements were generally not considered to be an effective safeguard against a risk of absconding, and electronic tagging was not recommended.

 

How the UK authorities failed to act with “ due diligence”

In determining whether the length of detention exceeded that reasonably required for the purpose pursued, the Court  went to ask whether the UK  authorities acted with “due diligence” and reached the following conclusions:

  • It could not be overlooked that the applicant’s second asylum application, made on 27 March 2008, (the resolution of which was decisive for his immigration status) was not decided by the Secretary of State until 8 February 2011, just over 2 years and 10 months later. This was a period that appeared significantly longer than necessary, in particular when compared against the stated United Kingdom Border Agency aim to give 80 percent of asylum applications a decision within two months.
  • On the other hand the Court noted that during the two year period from when the applicant began his immigration detention to the resolution of the claim, the authorities were not completely inactive.
  • The Secretary of State should have taken more decisive steps to bring the decision making process swiftly to a close. Whilst the applicant was considered sufficiently well to be detained it was accepted that he had serious mental health problems, making him vulnerable. There was therefore a heightened duty on the authorities to act with “due diligence” in order to ensure that he was detained for the shortest time possible.
  • The Court noted that the applicant, being a vulnerable individual, was detained for a very significant period of time. In respect of the period between 9 November 2009, when the applicant first indicated that he intended to provide a medical report to support his second asylum application and 8 February 2011, when his asylum claim was finally decided the government failed to take any significant initiative towards deciding his claim. Moreover, for the period of just over four months after the deadline for that expert report expired and until the final report was ultimately provided, the Court considered there was a heightened need for the government to process and, ultimately, decide the claim diligently and speedily given the amount of time that the applicant had already been in detention.
  • It was also noted that the UK Government had chosen to put in place a system where there are no fixed time limits on immigration detention. The Court stated that where an applicant is subject to an indeterminate period of detention, the necessity of procedural safeguards becomes decisive. Accordingly, in the context of the present case, the Court considered that the necessity to ensure the effectiveness of the available procedural safeguards meant that there was a particular need for the authorities to act with appropriate due diligence in managing the decision making process and following up the deadline ultimately imposed. By failing to ensure a timeous decision in the applicant’s asylum claim, the domestic authorities also prevented the applicant from challenging that decision sooner before the asylum and immigration tribunals.
  • It was clear that even if the applicant’s actions were contradictory, the responsibility lay with the Secretary of State to ensure that the detention was (and remained) lawful. The applicant was vulnerable and detained for over two and a half years in the context of a legal framework that did not impose time limits on his immigration detention. Accordingly, the Court considered that in the circumstances the UK authorities should have been more diligent in pursuing the applicant’s representatives and following up the provision of the expert evidence, especially after a deadline had been imposed, to ensure the necessary “due diligence”.
  • The Court concluded that the authorities did not act with sufficient “due diligence” from 28 June 2010 until 8 February 2011 when the asylum claim was finally decided; a total period of 7 months and 12 days. 2.  It was held that there had been a violation of Article 5 . 1 of the Convention. 

No award of damages due to Applicant’s conduct

The applicant had claimed £100,000 in respect of non-pecuniary damage.

The Court made it clear that it found that the  UK authorities’ failure to act with due diligence was because they did not manage the applicant’s requests relating to his asylum claim efficiently, including his requests to allow him more time to submit evidence. It was noted  however that  the failure occurred largely because the authorities were allowing the applicant time to make the fullest possible asylum claim, and there was nothing to indicate that they would not have decided his claim sooner and ended his immigration detention sooner, had he produced that evidence earlier as requested. The Court also noted that the applicant withdrew an application for bail thereby depriving the domestic courts of the possibility to consider his release during the relevant period.

The Court concluded that in light of the applicant’s conduct and having regard to the particular circumstances of the case, they did not consider that it was necessary, in the terms of Article 41 of the Convention, to afford the applicant any financial compensation by way of just satisfaction. The Court accordingly held that the finding of a violation of Article 5  in itself constituted adequate just satisfaction for the purposes of the Convention.

 

 

 

 

 

 

 

 

 

 

Paposhvili and HIV/AIDS: First Tier Tribunal Judge allows Article 3 medical condition appeal by a Malawian claimant

 

In PAPOSHVILI v. BELGIUM – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber)) [2016] ECHR 1113, the ECHR stated,  “The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom”.

Following the decision in Paposhvili, a recent blog article enquired  as follows: Paposhvili ECHR: An Easing of The UK Courts Restrictive Approach To Article 3 Medical Condition Cases?  Over a  decade  has passed with Immigration Tribunal Judges  being  required to in effect almost  routinely  dismiss Article 3 medical condition appeals  originating  from claimants  living with HIV.   After Paposhvili however,   it appears that some Judges of the  First Tier Tribunal are  now daring to take the bull by horns and allow  medical condition human rights based appeals without the shadow  of  the case of “N”  constantly over their shoulders.

Has the Secretary of State amended  her policy guidance following Paposhvili?  No.  The current Policy Guidance,  Human Rights Claims On Medical Grounds, valid from 20 May 2014  still states:

 

 

“Considering article 3 medical claims

“Article 3 case law

Home Office policy for these applications is based on case law. For example, a key case, known as the case of ‘N’, was considered by the House of Lords and the European Court of Human Rights (ECtHR). The ECtHR judgment:

  • upheld the position taken by the House of Lords that removing ‘N’ would not breach article 3, and
  • confirmed that cases where the applicant can resist removal and be granted leave to remain on article 3 grounds are exceptional.

Following this case, Home Office policy is to accept that an applicant’s article 3 (medical) rights would be breached by removal to their country of origin only if:

  •  their illness has reached such a critical stage (the applicant is dying), and the conditions to which they will be returned are such that it would be inhuman or degrading treatment to: deprive them of the care they are currently receiving, and  send them home to an early death (unless there is care available there to allow them to die with dignity)”.

………..

Referring the case before granting

As the tests for granting discretionary or indefinite leave under human rights (medical) grounds are very high, granting under this policy is rare. If you decide to grant such a case, you must refer the case to a senior caseworker before you do so”.

Published instructions to Home Office caseworkers are therefore that all Article 3 medical cases  have to meet the ‘N’ threshold.

 

Malawi: A recent example

For Malawi, currently,  the only published Country Policy and Information Notes on the Home Office website  relate to claims focused on  sexual orientation and gender identity.  The last  Home  Office Report in relation to Malawi  to  cater for  availability  and accessibility   of medical treatment for certain medical conditions  was the Malawi Country of Origin Information Report of October 2012.

A Malawian claimant had her  asylum claim( fear of subjection  to FGM for her young  daughter) and Article 3 claim refused by the Home Office  in April 2017.  She had advanced her claim without  the  benefit of legal representation.  No  reference was made to the  case of Paposhvili within the  refusal decision yet  considerable reliance was placed upon the case of N v SSHD (2005) UKHL 31( Paposhvili was published in December 2016).  Reference was also made  in the refusal decision to the above set out Policy guidance of 2014  in relation to medical condition cases.

The refusal decision also specifically  referred to a Home Office Country of origin Response dated 05/02/2016 Malawi- Medical Issues: Treatment for HIV. AIDS ref 11/15/-044. This response was  stated to   have been  compiled  and researched by the Country Policy  and Information Team(CPIT) after researching  publicly accessible information and/or obtaining  information that can be made publicly available within time constraints.   In order to obtain the Response the  facts that had been put forward  were  as  follows:

The applicant is suffering from HIV since 2009, states his CD4 count is currently   undetectable. Applicant also states he suffers from depression, castleman  disease and Nodal Kaposi Sarcoma. Applicant  claims his Castleman  and Sarcoma diseases  will return if he fails to receive  HIV medication. Applicant claims  his doctors have  predicted  that the risk of Castleman or Sarcoma  returning is between 9 and 20%. Applicant is treating  his HIV with  Truvada and Intelence. He is  currently  taking Mirtazapine  and Venlafaxine  for depression. Applicant is not taking medication  for Castleman  or Sarcoma  diseases  at the moment.

Information requested:

The applicant is a Malawian male who suffers   from HIV, Castleman disease, sarcoma and depression. Please confirm availability  and accessibility of the medication  he is currently  taking( listed above) and please list any other  medications/treatments available  to him in Malawi. Please confirm  if this medication is provided free of charge, or if it costs money. Please also confirm  how widespread the availability  of the medication is.  Please also confirm the availability  of mental health support in Malawi  as the applicant claims to have experienced  suicidal thoughts. The applicant also claims  he has had two twin  children in the UK. They were born premature and are receiving  treatment, however  specific  information on the nature  of this treatment  has not been  provided. Is specialist  care for premature  babies available in Malawi?

The Response of 5 February  2016 stated:

“A medCOI response dated 1 February 2016 stated that there are specialists in Malawi who can treat people with HIV/AIDS. CD4 counts, viral loads and blood counts can be carried out in Malawi. Immunologists are not available in Malawi. Radiation therapy for the treatment  of  Kaposi sarcoma, ongoing  outpatient treatment  by a radiologist and treatment by  dermatologists are not available in Malawi.

Etravirine( HIV/AIDS), agomelatine ( anti- depressant), buproprion( anti-depressant) , mainserin( anti depressant), and moclobemide (anti-depressant) are not available.  Truvuda ( HIV/AIDS Mirtazapine( anti- depressant) , venlafaxine hydrochloride ( anti- depressant), setraline ( anti- depressant), duloxetine (anti- depressant), paroxetine (anti-  depressant) are all available. There are psychologists available in Malawi who can treat people  with mental  illness.

The cost, accessibility and how widespread the availability of a particular  type of medical care is  in a particular  country is outside  the remit  of MedCOI.

CPIT could not find information about specialist medical  care for babies who are born premature in Malawi”.

 

Relevant paragraphs of Paposhvili  relied upon in relation to the  appeal were as follows:

  • 181.  The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.
  • 182.  In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory ….the Court is of the view that the approach adopted hitherto should be clarified.
  • 183.  The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
  • 184.  As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention.
  • 185.  Accordingly, in cases of this kind, the authorities’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out .
  • 186.  In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 ….In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment.
  • 187.  Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it …..The risk alleged must be subjected to close scrutiny in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances). The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.
  • 188.  As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.
  • 189.  As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.
  • 190.  The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care.
  • 191.  Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3.
  • 192.  The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.

 

How the Immigration Judge approached the appeal

Although the asylum appeal was also allowed, the Immigration Judge relevantly had regard to the following, in summary,  by way of consideration and conclusion:

  • The Immigration Judge noted that the Appellant relied on the recent ECHR case of Paposhvili as the proper approach to be taken for medical cases under Article 3. It was noted that the Court considered the previous test applied as set out in N v UK set a very high threshold for such cases to meet before they would succeed under Article 3. The Court held that the test was too high. It formulated a new approach which it explained at paragraphs 186 to 192 in Paposhvili. In summary,  the approach was that there is an initial evidential burden upon an appellant to show there are substantial   grounds to believe that there may be an Article 3 breach although the Court acknowledged that a certain degree of speculation was inherent. Then the Court held it was for the contracting state to dispel any doubts and this involved a close scrutiny of the alleged risk.
  • The immigration Judge found that the Appellant had discharged the evidential burden upon her as set out by the ECHR , paragraph 186 of Paposhvili. The appellant explained and showed evidence of her condition and the treatment she was receiving for it. She raised her doubts about her ability to access the same in Malawi as a result of which she was scared that she would die and her concerns of the impact of that upon her children.
  • The Home office was found to have filed generic evidence about the availability of ARV treatment in Malawi. None of it referred to the particular treatment the Appellant was on nor whether the medication that the Home office said was available was suitable for the appellant; neither did it address the specific provision of medication for someone in the appellant’s position, namely returning her to her home area, in terms of the nearest test centre, the distances and consequential cost involved and the availability of the medication at test centre.
  • The Immigration Judge found that the available evidence on the question of whether the appellant would in reality be able to access the treatment she required to prevent her from succumbing to life threatening illnesses was lacking. Firstly, much of it was out of date. There was no real evidence as to how the funding of ARV medication now takes place (if indeed it does) once the foreign aid ended in 2014. Secondly, there was no specific evidence at all about the medication the appellant in fact takes.
  • In light of the decision in Paposhvlii, the Immigration Judge stated that she found it incumbent upon the Home Office to have submitted evidence in order to dispel the doubts raised by the appellant.
  • The Judge found that there were substantial grounds to believe that if the Appellant were to return to Malawi she would not be able to access the medical treatment she required to maintain her present state of health. The evidence available to the Judge was sufficiently clear that the intention to provide such treatment free of charge at the point of delivery exists in Malawi but the operation of the same is marred by funding and other practical problems such that its availability to a normal member of the public, likely to be in a rural area, was very much in doubt.
  • The Immigration Judge concluded that she found that the Secretary of State had failed to discharge the burden upon her to dispel these concerns. She found that the removal of the appellant in these circumstances was a breach of her  Article 3 rights as there are substantial  grounds to believe that her state of health is likely to deteriorate to such an extent as to prove fatal which is capable of amounting to inhumane and degrading treatment.
  • The Appellant’s Article 3 claim was allowed.

 

Conclusion

From the above, it is  therefore possible  for an Appellant to advance an Article 3  medical condition appeal  placing reliance upon Paposhvili and succeed.

Whilst the First Tier Tribunal  considers  matters  on the same ground( medical conditions cases)  applying the Paposhvili approach,  surely  the Home Office  cannot continue much longer  doing so from another angle ie the “N” approach.  The current Home Office policy guidance on medical  condition  cases   urgently  needs to be amended/updated so that  Home Office caseworkers  can attempt to  reach proper and  effective decisions that cater  for changes in caselaw.

As per  the contents of  the old style  CIPU or COI  reports which have now been abandoned, it is clear that the Home Office will now need to  formulate  specific Country policy and Information Notes  focused on  accessibility  and availability of  various forms of  medical conditions and  their  treatment in relation to several countries, so as  to cater for the  resurrection and wave of medical condition claims  that are  surely forthcoming.

 

 

 

Deport First, Appeal later provisions unlawful: Supreme Court brings to a screeching halt the UK Government’s sustained erosion of appeal rights

The outcome in Kiarie and Byndloss, R (on the applications of) v Secretary of State for the Home Department [2017] UKSC 42 (14 June 2017)  in the Supreme Court is the epitome of immigration lawyer nirvana. When making deportation orders in Kiarie and Byndloss, the Secretary of State issued Section 94B certificates, the effect of which was that they could bring their appeals only after they had been deported to Kenya and Jamaica. The issue in the two appeals before the Supreme Court was whether the certificates were lawful. Did the certificates breach the rights of the appellants under Article 8 of the ECHR?  Unlike the Court of Appeal, the Supreme Court has most sensibly decided that the Section 94B certification procedure is unlawful and unfair.

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How the Secretary of State got the law horribly wrong: Seeking to apply refugee cessation provisions to a Zimbabwean non-refugee deportee

This is a case in which the legal analysis proposed by the Secretary of State became confused at an early stage and was never reviewed and rectified. It also became procedurally very messy”,  so said the Court of Appeal in The Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407 (08 June 2017).

By not paying proper regard to fundamentals so as to advance a  tactful  and relevant  legal analysis approach  from the very start,  stemming from  the very decision to cease refugee status, the  Secretary of State  woefully missed out on an opportunity to  deport a Zimbabwean national who  had never been granted  refugee status but rather was conferred it on a technicality for the purposes of family re-unification.

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A fly on the wall: A typical day waiting at an Immigration Tribunal venue

Imagine your first time as an Appellant at an immigration Tribunal hearing venue. What would you expect? Regular refreshments of free tea and biscuits as you wait your turn to be heard by a Judge?  After all, you have paid at least £140.00 towards the Tribunal appeal fee.  Would you expect to arrive and find 20 or so people crammed in a waiting room with hardly any seating space?  What if you are overwhelmed by all this and are too nervous to approach an Usher for updates? Would you simply sit there not knowing what next to expect as the hours go by? Would you anticipate the Usher approaching and addressing you by name since they would have taken your name down from the beginning or would you expect to be addressed en masse along with the rest of the visitors?

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The inflexible Adult Dependent Relative Rules are here to stay so says the Court of Appeal

“The question is whether there is now general acceptance that these rules are here to stay as unchallengeable/unamendable….”,  so enquired  my previous blog article of October 2015 in relation to the  Rules  relating to Adult Dependent Relatives( ADR’s): Adult Dependant Relatives: Very Deliberately Onerous Rules

 

An ambitious challenge  brought   about by  BRITCITS in  BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368 (24 May 2017) has elicited a negative response to the question of whether the ADR Rules  can be challenged successfully with a view to striking them  down as unlawful. Rather, the Court of Appeal emphasized  disappointingly, True it is that significantly fewer dependants, including parents, will be able to satisfy the new conditions but that was always the intention”.

 

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