Paposhvili ECHR: An Easing of The UK Courts Restrictive Approach To Article 3 Medical Condition Cases?

THE PROBLEM AND THE COURT’S APPROACH IN PAPOSHVILI v BELGIUM : ECHR 13 Dec 2016

 

The Court itself  in Paposhvili noted that it had applied the case-law established in N. v. the United Kingdom in declaring inadmissible, as being manifestly ill-founded, numerous applications raising similar issues, concerning claimants  who were HIV positive  or who suffered from other serious physical illnesses or mental illnesses. It  was noted that several judgments had applied this case-law to the removal of seriously ill persons whose condition was under control as the result of medication administered in the Contracting State concerned, and who were fit to travel.

The Court considered from a review 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.

 

The Court observed that there were important issues at stake in Paposhvili notably concerning the expulsion of aliens who are seriously ill. Thus, the impact of the  case went  beyond the particular situation of the applicant.

 

In Paposhvili, it was argued among other  issues,  that the present case afforded a unique opportunity to depart from the excessively restrictive approach adopted by the Court in N. v. the United Kingdom with regard to the expulsion of persons suffering from serious illness.

 

Application of the restrictive approach in N v UK

 

In two cases, D. v. the United Kingdom and N. v. the United Kingdom concerning the expulsion by the United Kingdom of  applicants  who were seriously ill, the Court proceeded on the premise that claimants  who were subject to expulsion could not in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the returning State.

 

D v. the United Kingdom:

 

Concerned the decision taken by the United Kingdom authorities to expel to St Kitts an applicant   who was suffering from Aids. The  Court considered that the applicant’s removal would expose him to a real risk of dying under most distressing circumstances and would amount to inhuman treatment.  It found that the case was characterised by “very exceptional circumstances”, owing to the fact that the applicant suffered from an incurable illness and was in the terminal stages, that there was no guarantee that he would be able to obtain any nursing or medical care in St Kitts or that he had family there willing or able to care for him, or that he had any other form of moral or social support. Taking the view that, in those circumstances, his suffering would attain the minimum level of severity required by Article 3, the Court held that compelling humanitarian considerations weighed against the applicant’s expulsion.

 

N v. the United Kingdom:

 

Concerned the removal of a Ugandan national who was suffering from Aids to her country of origin, the Court, in examining whether the circumstances of the case attained the level of severity required by Article 3 of the Convention, observed that neither the decision to remove an applicant who was suffering from a serious illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State, nor the fact that the individual’s circumstances, including his or her life expectancy, would be significantly reduced, constituted in themselves “exceptional” circumstances sufficient to give rise to a breach of Article 3. In the Court’s view, it was important to avoid upsetting the fair balance inherent in the whole of the Convention between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. A finding to the contrary would place too great a burden on States by obliging them to alleviate the disparities between their health-care system and the level of treatment available in the third country concerned through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction. Rather, regard should be had to the fact that the applicant’s condition was not critical and was stable as a result of the antiretroviral treatment she had received in the United Kingdom, that she was fit to travel and that her condition was not expected to deteriorate as long as she continued to take the treatment she needed. The Court also deemed it necessary to take account of the fact that the rapidity of the deterioration which the applicant would suffer in the receiving country, and the extent to which she would be able to obtain access to medical treatment, support and care there, including help from relatives, necessarily involved a certain degree of speculation, particularly in view of the constantly evolving situation with regard to the treatment of Aids worldwide. The Court concluded that the implementation of the decision to remove the applicant would not give rise to a violation of Article 3 of the Convention. Nevertheless, it specified that, in addition to situations of the kind addressed in D. v. the United Kingdom in which death was imminent, there might be other very exceptional cases where the humanitarian considerations weighing against removal were equally compelling.

 

*As noted in Paposhvili, an examination of the case-law subsequent to N. v. the United Kingdom has not revealed any such examples.

 

The Court’s approach in Paposhvili:

 

In short, Mr Georgie Paposhvili, a Georgian national, claimed  that his removal to Georgia from Belgium would expose him to risks to his life and physical well-being and would infringe Articles 2, 3 and 8 of the Convention.

 

Among other conditions, Mr Paposhvili had suffered from Chronic lymphocytic leukaemia. He  died on 7 June 2016.  On 20 June 2016 his wife  and their three children expressed the wish to pursue the proceedings before the Court.

 

The Court considered and concluded as follows:

 

• 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 “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 pointed 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.

• It was stated that the Court does not itself examine applications for international protection or verify how States control the entry, residence and expulsion of aliens. 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. 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.

• 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.

• 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 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.

• What is in issue 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.

• 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. 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.

• 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.

• 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.

• The Court emphasised 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.

• The fact that the third country concerned is a Contracting Party to the Convention is not decisive. While the Court agreed with the Belgian Government that the possibility for the applicant to initiate proceedings on his return to Georgia was, in principle, the most natural remedy under the Convention system, it observed that the authorities in the returning State are not exempted on that account from their duty of prevention under Article 3 of the Convention.

The Court considered that it was not disputed that the applicant was suffering from a very serious illness, chronic lymphocytic leukaemia, and that his condition was life-threatening. In conclusion, in the absence of any assessment by the domestic authorities of the risk facing the applicant in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia, the information available to those authorities was insufficient for them to conclude that the applicant, if returned to Georgia, would not have run a real and concrete risk of treatment contrary to Article 3 of the Convention. It followed that, if the applicant had been returned to Georgia without these factors being assessed, there would have been a violation of Article 3.

 

THE APPROACH OF THE UK COURTS AFTER N v UK

 

(1)GS (India), & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40 – Not caught by the exceptional case addressed in D and N:

 

Five of the six appellants were suffering from terminal renal failure, or end stage kidney disease (ESKD). The sixth (KK) was  at an advanced stage of HIV infection. In each case the appeal was against a determination of the Upper Tribunal which dismissed the appellant’s appeal against the decision of the Secretary of State removing him from the United Kingdom. All six suffered from serious medical conditions which were being effectively treated in the UK . As noted  by the Court of Appeal, five of them, some more certainly than others, would be at risk of a very early death if returned to their home States. In the sixth case the evidence suggested a somewhat longer period.

 

The Appellants challenged the removal decisions as being repugnant to their rights guaranteed by Articles 3 and 8 of the European Convention on Human Rights. The appeals also  required  close consideration of the judgments of the European Court of Human Rights in D v United Kingdom (1997) 25 EHRR 31 and N v United Kingdom (2008) 47 EHRR 39, and the preceding House of Lords decision in the latter case, N v Secretary of State [2005] 2 AC 296, [2005] UKHL 31. There was also some overlap between the arguments on Articles 3 and 8. The appellants’ central contention on both Articles  was that the consequences to their life expectancy – especially dire for those with ESKD, no transplant, and no or no real prospect of continued dialysis in their home State –  were such that their removal or deportation would entail violations of both Articles by the United Kingdom.

 

Article 3 Aspect:

 

• In the Court’s judgement, it was clear that the departures from the Article 3 paradigm given in MSS v Belgium & Greece (2011) 53 EHRR 2 and Sufi & Elmi v UK (2012) 54 EHRR 9 do not extend the reach of the departure allowed in D v UK and of N v UK. The plight of an individual whose life expectancy may be severely shortened by his removal or deportation to his home State is a distinct state of affairs whose treatment under the Convention is not qualified by the court’s approach, for example, to the reception conditions for asylum-seekers. The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant’s plight. But the fact that there are other exceptions unlike D or N does not touch cases – such as these – where the claimant’s appeal is to the very considerations which D and N address. Accordingly, in the Court’s judgment, the Strasbourg jurisprudence in cases such as MSS and Sufi & Elmi casts no significant light on the approach to be taken by the to the binding authority of N v Secretary of State in the House of Lords.

• In the view of the House of Lords in N v Secretary of State [2005] 2 AC 296, [2005] UKHL 31, the D exception is confined to deathbed cases.

• The starting-point must be that, as the European Court of Human Rights has repeatedly affirmed, article 3 does not confer on a person who is liable to removal the right to remain in the territory of a contracting state in order to benefit from medical treatment which would not be available to him in the state to which he is returned. To put it another way, the returning state cannot be regarded as having responsibility for the inadequacy of the healthcare system in the country of return or, therefore, for the suffering which the person who is returned may undergo as a result of that inadequacy. It is established by the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 51, [2005] 2 AC 296, that that principle applies even where the life of the person removed would be “significantly shortened” by the inability to access treatment – in that case for AIDS – in the country of return. That decision was binding on the Court of Appeal in GS and it was considered that reasoning in N was in any event consistent with that of the subsequent decision in Strasbourg – N v United Kingdom (2008) 47 EHRR 39.

• It had been submitted in GS & Others that the focus of their Lordships’ reasoning in N was upon those with AIDS, a condition much more often suffered than ESKD; so that the strictures in N should not be taken to apply to the latter class of case. The Court of Appeal however considered that would be merely adventitious, and therefore unprincipled and found nothing to support it in their Lordships’ speeches in N.

• The result was considered to be all of a piece with the repeated statements in the Strasbourg court that “[a]liens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State” (N v UK and in D v UK).

• In the Court of Appeal’s judgement none of the appellants fell within the kind of exceptional case addressed in D and N.

• The case was concluded against the appellants on Article 3. They could not bring themselves within what may be called the D exception. Their plight, however grave, could not be alleviated by recourse to Article 3.

Lawful Presence in UK:

 

• It was argued that because KK’s presence in the UK had never been unlawful, but always with leave, his Article 3 case should not be subject to the rigour of the D exception. Attention was drawn to the distinction made in JA & ES v Secretary of State [2009] EWCA Civ 1353, [2010] INLR 353, for the purpose of Article 8, between those with and those without leave to remain. It was submitted that the reasoning in N v UK at paragraphs 42 – 43 had no application to a person with a current leave to remain and that KK was legally entitled to medical treatment by virtue of his lawful residence in the UK.

• The Court of Appeal considered the argument to be misconceived. The fact that KK was entitled to medical treatment while he was here with leave did not in the least inhibit the Secretary of State’s power to curtail his leave and deport him on public interest grounds. More generally, the submission rested on a false premise, namely that some distinction is to be drawn for the purpose of Article 3 between persons with a blameless immigration history and others who are illegal entrants or overstayers. It is elementary that Article 3 is an unqualified right, its scope untouched by the merits or demerits of its claimants. The fact that to date KK had been here with leave was simply irrelevant to the force of his case pursuant to Article 3.

Article 8 Aspect:

 

The Court of Appeal noted that  cases where the claimant resists removal to another State on health grounds, failure under Article 3 does not necessarily entail failure under Article 8. It was noted that before the Upper Tribunal  neither GS, EO or BA made any specific case under Article 8, however, the article 8 issue did require to be decided in the cases of KK and PL:

 

• The starting-point was the decision of the House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368. That establishes, following the decision of the Strasbourg Court in Bensaid v United Kingdom (2001) 33 EHRR 205, that a decision to remove a person from the United Kingdom where that would prejudice his or her access to medical treatment may in principle engage article 8.

• Bensaid v UK, was referred to in which the court said at paragraph 47: ” ‘Private life’ is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8… Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world… The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.”

• Both Razgar and Bensaid concerned treatment for mental illness. However it was noted that it has since been accepted in the Court of Appeal that article 8 may be engaged also where the treatment in question is for a physical illness: see JA (Ivory Coast) v Secretary of State for the Home Department [2009] EWCA Civ 1353, [2010] Imm AR 381, (where the claimant was suffering from HIV), R (SQ (Pakistan)) v The Upper Tribunal [2013] EWCA Civ 1251 (beta thalassaemia) and AE (Algeria) v Secretary of State for the Home Department [2014] EWCA Civ 653 (spina bifida).

• It was noted   that JA (Ivory Coast) & ES (Tanzania) v SSHD [2009] EWCA Civ 1353, in which the appellants had been given a “de facto commitment” that they would be allowed to remain in the UK for treatment, Sedley LJ, with whom Longmore and Aikens LJJ agreed said this at paragraph 17: “There is no fixed relationship between Art. 3 and Art. 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Ms Giovannetti is accordingly right not to suggest that a claim of the present kind must come within Art. 3 or fail. In this respect, as in others, these claims are in Mr Knafler’s submission distinct from cases such as D and N, in both of which the appellant’s presence and treatment in the UK were owed entirely to their unlawful entry …”

• The Court in GS stated that the question that was raised was how if article 8 is indeed potentially engaged in cases of this kind, that is reconcilable with the principle established in relation to article 3 that a member state is under no obligation to permit a person to remain for the purpose of obtaining medical treatment not available in the country of return. It was noted in GS that in enunciating that principle in N neither the House of Lords nor the Strasbourg Court reviewed its relationship with the potential engagement of article 8 as established in Bensaid or Razgar.

• It was noted that it was that question which the Court addressed in MM (Zimbabwe) [2012] EWCA Civ 279 : it was held that the “no obligation to treat” principle must apply equally in the context of article 8: It was acknowledged   there that “despite that clear-cut principle, the courts in the United Kingdom have declined to say that Article 8 can never be engaged by the health consequences of removal from the United Kingdom”, but drew attention in emphasising how exceptional the circumstances would have to be before a breach were established. The Court in MM (Zimbabwe) was noted to have observed that “it is not easy to think of a foreign health care case which would fail under Article 3 but succeed under Article 8” and MM (Zimbabwe concluded, at para. 23:- “The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.”

• In relation to paragraph 23 of MM(Zimbabwe), the Court in GS considered that it was clear that two essential points were being made. First, the absence or inadequacy of medical treatment, even life-preserving treatment, in the country of return, cannot be relied on at all as a factor engaging article 8: if that is all there is, the claim must fail. Secondly, where article 8 is engaged by other factors, the fact that the claimant is receiving medical treatment in this country which may not be available in the country of return may be a factor in the proportionality exercise; but that factor cannot be treated as by itself giving rise to a breach since that would contravene the “no obligation to treat” principle.

• The Court of Appeal in GS stated that if they applied the approach in MM (Zimbabwe) it was sufficiently clear that there was no error of law in the approach of either Tribunal.

• The Court of Appeal in GS considered that if the Article 3 claim fails as it did here, Article 8 cannot prosper without some separate or additional factual element which brought the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm.This meant that a specific case had to be made under Article 8. It was to be noted that MM (Zimbabwe) also showed that the rigour of the D exception for the purpose of Article 3 in such cases as these applies with no less force when the claim is put under Article 8:- “17. The essential principle is that the ECHR does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their ‘home countries’. This principle applies even where the consequence will be that the deportee’s life will be significantly shortened (see Lord Nicholls in N v Home Secretary [2005] 2 AC 296, 304 [15] and N v UK [2008] 47 EHRR 885 (paragraph 44)) 18. Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a ‘medical care’ obligation in relation to Article 3, but to acknowledge it in relation to Article 8.”

• The Court in GS concluded that it ought not to entertain in the cases of GS, EO and BA arguments based on article 8 which were not pursued before the Upper Tribunal, however, the article 8 issue did require to be decided in the cases of KK and PL. In KK‘s case, any article 8 claim based on the impact that removal would have on the claimant’s health could not in truth get off the ground because the Upper Tribunal made a factual finding that he would receive proper treatment for his HIV in the DRC.   As for PL, if one left aside the issue of the unlikelihood of his receiving access to proper treatment in Jamaica, his claim under article 8 was hopeless. It was true that he has been in the United Kingdom since 2001 and had formed friendships here, principally through his church but for almost all of that period he had been here illegally: In those circumstances, to strike the article 8 balance in his favour only because of the consequences for his health if he were removed, however grave, would be in substance to impose an obligation to treat. GM’s case on Article 8, was remitted to the Upper Tribunal by consent therefore allowed, quashing the removal decision in his case and remitting his Article 8 appeal to the Upper Tribunal for redetermination. All the other appeals were dismissed.

(2)AE (Algeria) v Secretary of State for the Home Department [2014] EWCA Civ 653: Whilst the fact of childhood is relevant, on the existing authorities the reality is that the present appeal failed. The arguments would require a significant extension of the Article 3 jurisprudence for the appeal to succeed and, in the light of the authorities,  the Court did not consider that it would be appropriate for  it to be so innovative:

 

The appellant was an Algerian national. He had a 6 year old daughter referred to as  Maya. Maya was born in Algeria. She had Spina Bifida. The undisputed evidence was  that she was  very severely disabled. She also had severe learning difficulties and extremely complex needs. When she was born the available healthcare in Algeria was incapable of meeting her needs. She arrived in the United Kingdom with her mother in January 2009 having been granted a visa specifically in order to receive medical care at Great Ormond Street Hospital. She had been  in the UK  for 5 years receiving highly specialised medical treatment and attending a special school in Enfield which provided her with a very high level of support. The appellant entered  the UK  illegally at a later date. On 14 January 2010 the Secretary of State refused the appellant leave, and his family further leave, to remain in this country on account of Maya’s medical condition.

 

The Court considered and concluded as follows:

 

• The Court of Appeal noted that as in the recent case of R (SQ (Pakistan)) v Upper Tribunal [2013] EWCA Civ 1251, this case was concerned with the application of Articles 3 and 8 when it is proposed to remove a very sick child to his or her home country where available healthcare provision is substantially inferior but where the evidence does not point to the likelihood of an early death. The leading authorities in “health” cases concerned adults: D v United Kingdom [1997] 24 EHRR 423; N v Secretary of State for the Home Department [2004] 2AC 296; and its sequel in the European Court of Human Rights (ECtHR), N v United Kingdom [2008] 47 EHRR 39.

• The Court stated that it is well known that these authorities place a high hurdle in the way of adult applicants in health cases. In SQ, the Court accepted that there can be circumstances in which the high threshold can be reached in relation to a child where it would not be reached in the case of an adult (paragraph 17). It also accepted that, in the light of Article 3.1 of the United Nations Convention on the Rights of the Child (UNCRC) and section 55 of the Borders Citizenship and Immigration Act 2009, special considerations in relation to children arise under Article 8 of the ECHR such that the best interests of the child are “a primary consideration”, as explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] (UKSC4). It was noted however that submissions on the present appeal to a large extent replicated those advanced in SQ. However, the cases are necessarily fact sensitive. In SQ the appeal was dismissed in relation to Article 3 but was allowed, to the extent of a remittal to the UT, in relation to Article 8.

 

Article 3 aspect:

 

• On behalf of the Appellant it was submitted that the Upper Tribunal was wrong in law to dismiss the Article 3 claim because it was sound on two distinct bases. First, to remove Maya to Algeria would be to expose her to inhuman or degrading treatment for which the Algerian authorities would bear responsibility because of the failure of Algeria to comply with its obligations under the UNCRC. This, it was said, was a classic Soering v UK (1989) 11 EHRR 439 type of case with consequences of the utmost severity. Secondly, and alternatively, it was submitted that to remove Maya to Algeria would involve the UK in subjecting her to inhuman or degrading treatment even in the absence of culpability on the part of the Algerian authorities. In this regard, it was said that the case satisfied the test of exceptionality as propounded in D and N. There was a positive duty to protect Maya from the risk of inhuman or degrading treatment of significant severity. Emphasis was placed on her status as a young child and on the context of the UNCRC and domestic child protection legislation.

• In the Court’s judgment, these arguments could not  succeed in this case any more than they could in SQ.  Whilst the fact of childhood is relevant, on the existing authorities the reality is that the present appeal must fail in relation to the two alternative bases upon which it is put. It would require a significant extension of the Article 3 jurisprudence for this appeal to succeed and, in the light of the authorities,   the Court did not consider that it would be appropriate for  it to be so innovative.

 

Article 8 aspect:

 

• The Court stated that SQ shows that, particularly in relation to a child, Article 8 may be more protective than Article 3. On the other hand, where it is engaged, the fact that it concerns a qualified right means that everything will ultimately depend on the balancing exercise pursuant to Article 8.2.

• The decision of the Upper Tribunal correctly referred to the “interplay of Article 8 and section 55 of the 2009 Act”. Unfortunately, some paragraphs contained contradictions. Moreover, the Article 8 analysis, seemed to merge into considerations of greater relevance to the Article 3 analysis, particularly the reference to “established thresholds”. In the Court’s judgment, it was not possible to be confident that the approach to Article 8 was free from material legal error. What was required was a structured approach with the best interests of Maya and her siblings as a primary consideration but with careful consideration also of factors pointing the other way. Such factors included but were not limited to the overstaying of the children and their mother and the illegal entry and bogus asylum claim of the appellant father. The latter was no doubt what the Upper Tribunal had in mind when referring to “the need to maintain immigration control”. Moreover, the Court of Appeal did not consider that it would be inappropriate for the future cost and duration of Maya’s treatment and care in this country to play a part in the balancing exercise as matters relating to the economic wellbeing of this country, given the strains on the public finances.

• It would not be appropriate for the Court of Appeal to make a dispositive decision on Article 8. The outcome was not self evident. It was a matter more properly left to the expertise of the Upper Tribunal. Accordingly, the Court of Appeal allowed the Article 8 appeal and remitted the case to the Upper Tribunal for reconsideration of this issue. The Article 3 appeal was dimissed however the Article 8 appeal was allowed to the extent of quashing the decision of the Upper Tribunal on Article 8 and remitting the case for reconsideration of that issue alone.

 

(3)SQ (Pakistan) & Anor, R (on the application of) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013] EWCA Civ 1251: Acceptance that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult but the high threshold was  not  satisfied in this case:

 

MQ, who was born on 21 October 1997, arrived in the UK from Pakistan with his mother SQ on 24 June 2012. They had visitors’ visas entitling them to remain for up to six months. MQ had a very serious medical condition – beta thalassaemia – for which he had been receiving treatment in Pakistan and he also required chelation therapy. The Court of Appeal noted that  there was   no doubt that the healthcare available to him in Pakistan  was  of a significantly lower quality than that which was  available, and which he had enjoyed, from the National Health Service in the UK.

 

The human rights claim was advanced by reference to Articles 3 and 8 of ECHR. It was  to the effect that to return MQ to Pakistan, as the Secretary of State sought  to do, would be to subject him to inhuman treatment or would unlawfully interfere with his right to respect for his private life. His case was  that, if returned, he would probably die in his late teens or early twenties, whereas in this country he would have a much longer and better life. The Court of Appeal noted  this was  what is often referred to as a “health case” in the context of Articles 3 and 8.

 

At the heart of the appeal lay  a contention that, whether looked at through the lens of Article 3 or of Article 8, the authorities of D v UK and N v UK  do not have the same reach in the case of a child who entered this country lawfully. Further, it was  contended that, in the light of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, MQ’s claim, particularly under Article 8, had to be assessed in the context of section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 3 (1) of the United Nations Convention on the Rights of the Child (CRC) which require the best interests of the child to be “a primary consideration” in this context.

 

Article 3 aspect:

 

• At paragraph 17, the Court in SQ stated that it is well known that a contracting state may infringe Article 3 if it returns a person to a country where he would be at substantial risk of inhuman or degrading treatment: see Soering v United Kingdom [1989] 11 EHRR 439, which provided the jurisprudential basis for D. However, the imposition of a “high threshold” is equally well established and this is underlined by the test of exceptionality illustrated by D and N. On the other hand, Article 3 confers an unqualified right. Ultimately the question is whether what is likely to befall the claimant crosses the high threshold and the test of exceptionality. Whether or not the required level of severity is reached in a particular case depends on all the circumstances of that case. The Court in SQ however accepted that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult. However the Court stated that in the present case the evidence, taken at its highest, and making every allowance for the age of MQ, did not establish that the high threshold was satisfied. To put it bluntly, MQ would not be returning to an early and solitary death in Pakistan. He had been receiving treatment and blood transfusions without contracting HIV, hepatitis B or C before leaving Pakistan. He also received chelation therapy although his mother stated in her witness statement that he sometimes missed that treatment for a month or two because they did not have the money to pay for the best medication and sometimes they had to use inferior alternatives. In 2010, MQ contracted malaria and typhoid but it was not established that this was the result of receiving unscreened blood transfusions.

• In his consideration of Article 3, the judge did take account of MQ’s age. The relevant passage begins “bearing in mind that he is a child”. It was also noted that the totality of a particular medical expert’s evidence, written and oral, was somewhat ambivalent and confusing.

• The Court stated that there was no doubt that, on return to Pakistan, MQ would receive treatment inferior to that which he was presently receiving in the UK. However, the circumstances fell significantly short of the high threshold.

 

Article 8 aspect:

 

• The Court of Appeal noted ZH (Tanzania) demonstrates the central role of the best interests of a child in an Article 8 case.

• The FTT dealt with the Article 8 claim somewhat cursorily. Having correctly observed that the appellants had only been in this country “for a brief period” and that the treatment received by MQ was “a good part of [his] private life” here, the judge simply concluded that he did not find the “private lives of these appellants would be infringed upon their removal to Pakistan”. He then referred to ZH (Tanzania) and the best interests of MQ but found that his “cultural, linguistic and family ties are best maintained in his country of origin”, noting that “there are no countervailing factors that militate against the removal of [MQ] in the context of Article 8 and section 55”. The Court in SQ considered that it was impossible to escape the conclusion that the Judge never considered MQ’s medical conditions and treatment in the context of his best interests.

• In the Court of Appeal’s judgment, the consideration of Article 8 by the FTT in the present case was flawed. It was incumbent upon the Judge to identify all features of MQ’s private life which would be subjected to interference upon his removal. These were headed by the discontinuation of the treatment he was receiving in the UK. It seemed to the Court that the issue of interference admitted of only one answer here and the FTT erred in coming to the contrary conclusion. The real issue was proportionality. Unfortunately, the FTT seemed to have excluded health considerations and the discontinuation of the UK treatment from its ZH assessment. That was a material error of law. It was the expert tribunal for the carrying out of a proportionality assessment such was now required.

• The Court of Appeal stated what the case demonstrated is that in some cases, particularly but not only in relation to children, Article 8 may raise issues separate from Article 3. In JA (Ivory Coast) v Secretary of State for the Home Department [2009] EWCA Civ 1353, an adult succeeded under Article 8 (but not Article 3) in a health case. Sedley LJ emphasised (at paragraph 17) that each of the two Articles “has to be approached and applied in its own terms”. The leading authorities of D and N were distinguished on the basis that, in both of them, the appellants’ presence and treatment in this country “were owed entirely to unlawful entry”. J A’s appeal was allowed and her case remitted because of the potential significance of the fact that, following her lawful entry and subsequent diagnosis of HIV+, she had been granted further exceptional leave to remain for treatment. Although no separate Article 8 issue arose in D or N, it plainly did in JA.

• The Court made it clear that it did not intend to predict or seek to influence the outcome of the present case on remittal. On the one hand, MQ could pray in aid his lawful entry and his status as a child with the protection of the ZH approach. On the other hand, he arrived with his serious medical conditions at an advanced stage and, although not an unlawful entrant, it would be relevant to consider whether his arrival in the UK was a manifestation of “health tourism”. If it was, that would fall to be weighed in the balance. The Court stated that the UK was under no international obligation always to act as “the hospital of the world”. The difficult question was whether it would be disproportionate to remove this child in the light of all the evidence in the case, including the medical evidence which, at present, was not as clearly presented as it could be.

(4)Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC)- it was open to the judge to find that this was one case falling within what he had correctly recognised to be a very small number of cases that could succeed

 

Roseline Onoshoagbe Akhalu, a citizen of Nigeria was able to come to the UK in 2004 having secured, in the face of fierce competition, a scholarship from the Ford Foundation and entry clearance as a student in order to undertake a degree course. Soon after arriving in the UK to commence her studies, with entry clearance having been granted initially until October 2005, the claimant was diagnosed with end stage kidney failure. The claimant required dialysis in order to remain alive and this treatment was provided at a hospital in Leeds. In July 2009 the claimant received a kidney transplant and thereafter required carefully monitored medication to ensure that the level of that medication in her body was maintained at an appropriate level so that the transplanted organ was not rejected. Monitoring  was essential as too high a level of that medication in the body can prove fatal. She would  always remain particularly at risk of infection, because the effect of the medication was to moderate her immune system to prevent rejection, and so appropriate and safe living conditions were  essential to her continued health.   While the claimant remained in the United Kingdom her life expectancy and her quality of life would be normal. It was noted by the Upper Tribunal  that it was accepted by the Secretary of State  that she would not be able to access treatment in Nigeria and so would die within weeks. That was  not because appropriate treatment and living conditions are not available in Nigeria but because she would not be able to afford to pay for them.

 

The claimant appealed to the First-tier Tribunal against the removal decision that accompanied the last unsuccessful application for further leave to remain. Her appeal was allowed. The Secretary of State appealed to the Upper Tribunal.

 

The Upper Tribunal’s considerations and conclusions were as follows:

 

• The Upper Tribunal noted the particular question of law: On what basis can a claimant succeed in such circumstances under article 8 of the ECHR when it is accepted, as it is here by all concerned, that she could not succeed under article 3. Central to the resolution of that question was a correct understanding of the jurisprudence relating to it. In particular, the Secretary of State argued that the Court of Appeal in MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 had laid down a test to be applied in cases such as this one, where the claimant seeks to rely upon her need for medical treatment and where that treatment may not be available in her country of nationality, the effect of which is to disqualify the claimant from the protection of article 8 unless the private or family life established here has a bearing upon her prognosis. That approach, it was said, reflected the well established principle that a claimant cannot succeed simply on the basis that she cannot obtain in her own country medical treatment that is available to her here. On behalf of the Appellant it was submitted that was an incorrect interpretation of MM (Zimbabwe). The Court of Appeal there simply offered an example of a case that might succeed where such features were present without setting that as a requirement for such a claim to be made out.

• On behalf of the Claimant reference was made to JA (Ivory Coast) ES (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 1353. This was considered to be of interest for two reasons. The Court of Appeal emphasized that in contrasting claims made in health cases under article 3 and article 8 it is not simply a matter of the threshold of engagement being lower in bringing an article 8 claim, because the outcome is subject to a test of proportionality unlike the absolute and unqualified nature of article 3 in the protection it provides for in respect of that which it excludes as a permissible consequence. The two are entirely different.

• Also to be drawn from JA (Ivory Coast) is the observation found in paragraph 16 of the same judgement which considers the proportionality balance to be carried out in respect of the article 8 claim in health cases where the public interest arguments include the cost of providing heath care treatment, accepting that the United Kingdom “cannot afford to be the world’s hospital”:-“Here the prescribed purposes are, or include, the economic wellbeing of the country, which cannot afford to be the world’s hospital, and the prior right of a settled population to the benefit of its inevitably finite health resources. Against these may legitimately be weighed both the moral duty to help others in need and the fact that the United Kingdom has until recently found it both morally compelling and economically possible to extend such help to the appellants and others like them, alongside and not evidently to the detriment of the settled population.”

• The upper Tribunal considered that the ultimate conclusion in MM(Zimbabwe) was that the case was not, properly considered, about a comparison of medical treatment available in this country as opposed to in Zimbabwe but whether, absent a risk of offending, it was proportionate to deport MM, given the strength of the private life he had established here. For that reason, even though the claimant in MM faced deportation for serious violent criminal offences, the appeal was remitted for an assessment of proportionality to be carried out, correctly informed by relevant considerations.

• In the Upper Tribunal’s judgement, MM (Zimbabwe) does not have the effect of requiring any different approach to be taken to the assessment of proportionality, when that question is reached and the example offered of a claim that might succeed was no more than that.

• MM (Zimbabwe) does not establish that a claimant is disqualified from accessing the protection of article 8 where an aspect of her claim is a difficulty or inability to access health care in her country of nationality unless, possibly, her private or family life has a bearing upon her prognosis. The correct approach is not to leave out of account what is, by any view, a material consideration of central importance to the individual concerned but to recognise that the countervailing public interest in removal will outweigh the consequences for the health of the claimant because of a disparity of health care facilities in all but a very few rare cases.

• When a judge arrives at the question of proportionality he is required to have regard to all of the circumstances relied upon by both parties. If he left out of account aspects of the claimant’s private life established here because it could not be shown that they had a direct bearing on her prognosis, the balancing exercise would be fundamentally flawed and legally deficient.

• The correct approach is for the judge to have regard to every aspect of the claimant’s private life here, as well as the consequences for her health of removal, but to have in mind when striking the balance of proportionality that a comparison of levels of medical treatment available is something that will not in itself have any real impact on the outcome of the exercise. The judge must recognise, that it will be a rare case that succeeds where this is an important aspect of the claimant’s case.

• The consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality as was available in this country, are plainly relevant to the question of proportionality. But when weighed against the public interest in ensuring that the limited resources of this country’s health service are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant’s favour but speak cogently in support of the public interests in removal.

• the Upper Tribunal accepted that it was open to the judge to find that this was one case falling within what he had correctly recognised to be a very small number of cases that could succeed. In doing so he was not limiting his assessment to a comparison of medical treatment available here as compared with in Nigeria. On the evidence before the judge, these were the factors that spoke in favour of the claimant’s case:- this was a claimant who had been lawfully present when she fell ill; she had been provided with medical treatment which she was recognised to be entitled to receive, without charge, from the NHS; it had been decided to treat her condition by providing a transplanted kidney which would require forever thereafter continued access to treatment of a different kind than she had needed before that, and that she live in a manner that could not be achieved should she be returned to Nigeria; that despite her illness and the demands of her treatment she had played an active part in community life and had thus established a level of private life that she could never hope to replicate in Nigeria; that the concession made before the judge meant that a major aspect of the reasoning leading to refusal of further leave had fallen away; that there was nothing in any way hypothetical or speculative about the inevitable difficult, early and unpleasant death that would follow return to Nigeria;  contrary to the position as the Secretary of State thought it was, the evidence established clearly that the claimant would meet that early death alone, and not with the support of her family.

• The Upper Tribunal considered that the Judge directed himself correctly in law, made clear, both before and after setting out his conclusion that he recognised that very few appeals indeed could succeed in these circumstances, and plainly had regard to the competing arguments, including aspects of the public interest and the economic wellbeing of this country, as he struck a balance between the competing interests in play.

• It could not be said that this was an appeal allowed simply because of a disparity in the treatment available. That was to misrepresent what the judge has said. He plainly concluded that this was one of the “very rare cases” that could succeed under article 8 where the claim relies in part upon the need to continue with medical treatment being received here.

• Correctly understood, in the Upper Tribunal’s judgement, the judge did not allow the appeal simply because the claimant could continue to receive medical treatment here that she would not have access to in Nigeria. His was a holistic assessment, drawing on the truly exceptional level of engagement with her local community that was disclosed by the evidence he alluded to and which he did not need to set out extensively in his determination and a comparison of her ability to enjoy any private life at all in Nigeria, as well as the foreseeable consequences for her health should she be removed to Nigeria.

• The Upper Tribunal was satisfied that the judge did not make any error of law and that his conclusion, even if properly characterised as one that might be thought to be a generous one, does not disclose any legal error. The “constellation of reasons” which go considerably wider than the examples of those set out by the judge in paragraph 31 of his determination but which he undoubtedly had in mind, were plainly such as to justify the conclusion that the circumstances here were, if not truly unique, so exceptional as to stand out significantly from the ordinary run of cases where a claimant complains of being disadvantaged by a comparative lack of medical care in his or her own country. That was not the basis of the decision here.

 

(5)MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279: UK courts have declined to say that Article 8 can never be engaged by the health consequences of removal from the United Kingdom.

 

The appellant, a Zimbabwean national, had a history of serious mental illness. The issue that was before the Tribunal  was whether the appellant had established a private life which might engage Article 8 of the European Convention on Human Rights and if so, whether it was disproportionate to interfere with that private life to deport the appellant on the grounds that his continued presence would not be conducive to the public good. The Tribunal then found that were he to be returned to Zimbabwe his schizophrenia would return and his condition would deteriorate. The Tribunal described a health system in Zimbabwe “in collapse” where treatment would barely be available, if at all. The Secretary of State appealed the Tribunal’s decision.

 

The Court of Appeal considered as follows:

 

• The Court of Appeal stated that the first issue with which the appeal was concerned related to the application of Article 3 and Article 8 of the Convention to cases where it is sought to compare the availability of medical treatment in the United Kingdom with the country to which it is proposed to deport an applicant. It was noted the decisions of the House of Lords and of the European Court of Human Rights establish that even where a claimant is suffering from mortal illness such as advanced HIV/Aids and, if deported, would deteriorate rapidly and suffer an early death, no breach of Article 3 is established.

• The essential principle is that the ECHR does not impose any obligation on the contracting states to provide those liable to deportation with medical treatment lacking in their “home countries”. This principle applies even where the consequence will be that the deportee’s life will be significantly shortened ( N v Home Secretary [2005] 2 AC 296, and N v UK [2008] 47 EHRR 885).

• Although that principle was expressed in those cases in relation to Article 3, it is a principle which must apply to Article 8. It makes no sense to refuse to recognise a “medical care” obligation in relation to Article 3, but to acknowledge it in relation to Article 8. In N v UK, the ECHR took the view that no separate issue under Article 8 arose.

• Despite that clear-cut principle, the courts in the United Kingdom have declined to say that Article 8 can never be engaged by the health consequences of removal from the United Kingdom.

• In R(Razgar) v Home Secretary [2004] 2 AC 368, the question of principle was whether the rights protected by Article 8 could be engaged by the foreseeable consequences for health or welfare of removal of the United Kingdom pursuant to an immigration decision, where such removal does not violate Article 3. Lord Bingham’s answer was that such rights could be engaged by the foreseeable consequences for health of removal from the United Kingdom, even where such removal does not violate Article 3, “if the facts relied on by the applicant are sufficiently strong” [10]. Lord Steyn agreed with Lord Bingham. Lord Walker agreed with Lord Bingham’s observation and Lord Carswell considered the question to be whether removal would amount to a “flagrant denial of the appellant’s Article 8 rights to the preservation of his mental stability” [74].

• Since Razgar, the Court of Appeal has reiterated the principle expressed in Bensaid (q.v. supra) that if removal would have sufficiently adverse effect upon mental health, it is capable of engaging Article 8 (see AJ (Liberia) v Secretary of State for the Home Department [2006] EWCA Civ 1736 [17]). But again, the court pointed out that legitimate immigration control would ordinarily meet the test of necessity under Article 8(2) and decisions taken “bona fide in the exercise of such control would be proportionate in all but a small minority of truly exceptional cases, in which the imperative of proportionality demands an outcome in the claimant’s favour” [18].

• Thus the courts have declined to close the door on the possibility of establishing a breach of Article 8 but they have never found such a breach and have not been able to postulate circumstances in which such a breach is likely to be established. Since Bensaid in 2001 there has been no example of a successful Article 8 claim in a mental health case. The courts and tribunals have merely been left with the difficulty of identifying a “flagrant denial” or a “truly exceptional” case, neither of which provide any standard of measurement.

• As per paragraph 23 of their judgement, the Court in MM (Zimbabwe) stated: “The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported”.

• The question remained whether the appellant had established that deportation would infringe his rights enshrined in Article 8.

• In the Court of Appeal’s view , the Upper Tribunal was diverted, by reason of the arguments advanced, from an important aspect of the case, namely, whether it was disproportionate to deport the appellant on the grounds of his previous convictions in the light of the evidence of the prognosis and the relationship between his mental illness and his offending. The judge never seemed to have reached any clear conclusion based on an assessment of the risk of re-offending despite continued medication and support from his family here. If the correct view was that there was no realistic risk of further offending and the prognosis was excellent then it was difficult to see how it could be proportionate to deport this appellant. The Appellant had been in the UK country for 12 years and he had nothing to go back to save his grandmother and great-aunt, if they were still alive.

• The Court of Appeal   remitted the appeal back to the Upper Tribunal for a further hearing. It was considered that this gave both sides the opportunity to consider the up-to-date position. There was no up-to-date evidence after April 2008. A further hearing would at least give the opportunity for up-to-date evidence to be prepared and for the Secretary of State to consider whether it was, in the light of that up-to-date evidence, and the insufferable delay in the case, necessary to deport the Appellant. The appeal was allowed on that limited basis and remitted for a further hearing confined to the question of proportionality.

(6)JA (Ivory Coast) Es (Tanzania) v Secretary of State for the Home Department [2009] EWCA Civ 1353: JA’s position as a continuously lawful entrant placed her in a different legal class from N, so that she was  not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom

 

Both appellants were African women, one from Ivory Coast and one from Tanzania, who entered the United Kingdom lawfully. Each was thereafter diagnosed for the first time as HIV-positive and was treated by the NHS with anti-retroviral drugs which stabilised her condition and have kept it stable ever since. With a minor  hiatus in ES’s case, both women had leave to enter and thereafter were given leave to remain until, in 2006, Home Office policy changed and renewal of leave to remain was refused. Their appeals to the Tribunal  failed, and with permission they  appealed to the Court of Appeal.

 

In each case, importantly, the appellant’s reason for seeking leave to remain here – to continue with her treatment – was given to and accepted by the Home Office. JA entered as a visitor in March 2000, was diagnosed in May that year and applied for exceptional leave to remain for treatment. This was granted in November 2002 for a year, and then renewed as discretionary leave in November 2003 for a further 3 years. But the application which she made shortly before the expiry of that period was eventually refused because, following the case of N,  Home Office policy had changed. Much the same happened to ES, who entered the UK as a student in September 1998 with one year’s leave. She became an overstayer, but in November 2002 was granted ELR for a year because she was by then being treated for AIDS. Before the expiry of this period she applied for and was granted discretionary leave to remain for a further 3 years. At the end of this time, in December 2006, she reapplied but was refused any extension.

 

It was  submitted on behalf of the Appellants,  that there was an assumption of responsibility by the United Kingdom which distinguished the present cases from the line of leading cases in which no such obligation has been held to exist. Disclosure of documents had  revealed that when each appellant was granted ELR it was explicitly on the ground that the UK had assumed responsibility for her treatment.

 

The Court of Appeal considered and concluded as follows:

 

• It was noted by the Court of Appeal that “assumption of responsibility” in this context was neither a term of legal art nor a description of a legal obligation. It entered immigration law and practice from the judgment of the ECtHR in D v United Kingdom (1997) 24 EHRR 423.

• The change of policy in 2006 was the direct result of the decision of the House of Lords in N v Home Secretary [2005] UKHL 31, holding in agreement with the Court of Appeal ([2003] EWCA Civ 1369) that ECHR jurisprudence made the protection of Art. 3 available to foreign nationals facing removal only in extreme and exceptional cases going beyond those where removal was going significantly to shorten their lives. In Strasbourg (2008) 47 EHRR 885 the Grand Chamber agreed, noting (§34) that D was still unique in finding a violation of Art. 3 by removal of a foreign national suffering from ill-health.

• It was noted that the Appellants made no claim under Article 3. The contention was that the Tribunal in each case was wrong to exclude or marginalise the UK’s de facto assumption of responsibility for the appellants’ treatment when gauging the proportionality of removal under Article 8(2).

• It was noted that the Secretary of State did not dispute that the intended removal of the two appellants, given the length of time and the reason why they have been lawfully here, was a significant interference with their private lives, a concept to which Strasbourg jurisprudence had given a wide meaning.

• The Court of Appeal stated that they had more than once stressed the need for structured decisions on proportionality. One of the elements of such a structure capable of having a bearing was the need to relate the proportionality of an interference with private life to the purpose for which it is said to be necessary. Here the prescribed purposes were, or included, the economic wellbeing of the country, which cannot afford to be the world’s hospital, and the prior right of a settled population to the benefit of its inevitably finite health resources. Against these may legitimately be weighed both the moral duty to help others in need and the fact that the United Kingdom has until recently found it both morally compelling and economically possible to extend such help to the appellants and others like them, alongside and not evidently to the detriment of the settled population.

• There is no fixed relationship between Article 3 and Article 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms, and Counsel for the Secretary of State was accordingly right not to suggest that a claim of the present kind must come within Article 3 or fail. In this respect, as in others, these claims are in on the basis of the Appellants submission distinct from cases such as D and N, in both of which the appellant’s presence and treatment in the UK were owed entirely to an unlawful entry. It was however argued on behalf of the Secretary of State  that the distinction was true neither of N nor even of D.

• It seemed to the Court of Appeal that there remained a material distinction: the use by both the ECtHR and the House of Lords of the portmanteau term “aliens subject to expulsion” (see D, §54 ante; N, §15, per Lord Nicholls). It was true that the phrase is apt to cover both of the classes with which the Court was concerned – the illegal entrant who contrives to remain and the lawful entrant whose leave has expired. But it was not a term of legal art, and in neither of the two leading Art 3 cases was it necessary to differentiate within it, since the issue now before the Court of Appeal was not before either the ECtHR or the House. The aliens subject to expulsion in both D and N were foreign nationals who had never been lawfully admitted to the United Kingdom.

• In that critical sense the Court of Appeal considered that the present appellants were in a significantly different legal position from both D and N. This in turn, gave them a toehold on Art. 8. The question was whether in either case the true toehold was sufficient to enable them to resist removal. This depended in large part on the remainder of the material facts. It also depended, however, on law and legal policy, and it was here that that the Court of Appeal considered that Counsel for the Appellant had demonstrated two errors in both divisions of the Tribunal.

• First, both have treated N as, if not dispositive, then as the dominant standard for deciding these claims. Secondly, both had marginalised a potentially material factor – not a legal assumption of responsibility but a de facto commitment, not indefinite but not strictly time-limited (save for the policy or practice of giving indefinite leave to remain after six years of exceptional or discretionary leave), and prompted initially by compassion and subsequently by a sense of moral obligation. The consequent passage of time, without any allocation of fault, may also have a bearing: see EB (Kosovo)[2008] UKHL 41, §14-15.

• In the Court of Appeal’s judgement, the argument for a formal or legal assumption of responsibility went too high. Nor did the Court accept the contention that renewal of leave to remain had become for these two appellants a reasonable expectation: it may have become a legitimate hope, but that in itself went little distance. The real question was how far in each case the proportionality of removal was affected by the history of the compassionate grant and renewal of leave to remain for treatment, having regard to the impact both of that history and of the proposed discontinuance of treatment on the individual’s private life.

• The Court of Appeal considered whether this would have made a difference to either outcome and found that in the case of ES it could not. Once it was shown to the immigration judge’s satisfaction that the appellant had the skills and experience to obtain work which could pay, or help to pay, for treatment in Tanzania, and familial support to turn to as well, the history of lawful entry and compassionate grants of leave to remain could not have staved off removal. ES’s case was thus on a par with DM (Zambia) [2009] EWCA Civ 474.

• The Court of Appeal   decided that JA’s was a markedly different case. Her position as a continuously lawful entrant placed her in a different legal class from N, so that she was not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom. There was no finding by the Tribunal that she had much if any hope of securing treatment if returned to Ivory Coast, or therefore as to the severity and consequences of removal (see Razgar [2004] UKHL 27). Depending on these, the potential discontinuance of years of life-saving NHS treatment, albeit made available out of compassion and not out of obligation, was in the Court of Appeal’s judgment capable of tipping the balance of proportionality in her favour.

• The Court of Appeal dismissed the appeal of ES but allowed that of JA to the extent of remitting it to the Tribunal for redetermination of all issues arising under Article 8(2) in accordance with the Court’s judgment and with the methodological guidance given by Lord Bingham in Razgar [2004] UKHL 27. This was considered to permit the Tribunal, on the application of either party, to make an up-to-date appraisal of the availability of ARV and other treatment in Ivory Coast and of JA’s potential access to it.

 

(7)ZT v Secretary of State for the Home Department [2005] EWCA Civ 1421: Court envisages  a case where humiliation, ostracism and deprivation of basic rights, on top of the burden of being HIV positive,  could create a situation of exceptionality under the jurisprudence of N.

 

ZT, a citizen of Zimbabwe, arrived in the UK in July 2000, and was given leave to enter as a visitor for a period of 6 months. Fairly shortly thereafter she was diagnosed as being HIV-positive, and started a course of anti-retroviral treatment, which succeeded in controlling the disease. In February 2001 she sought permission to remain on the basis that to return her to Zimbabwe, where treatment for her very serious illness would be difficult or impossible to obtain, would infringe her rights under the European Convention on Human Rights. She did not then, or subsequently, make any claim under the refugee Convention. The Secretary of State refused that application in January 2003.

 

It was noted that ZT was very ill indeed when admitted to hospital in 2001, suffering from a seriously damaged immune system, and from opportunistic infections including both pneumonia and tuberculosis. Without treatment, she was estimated to have some three to six months to live. That treatment   restored her condition and her immune system to stability. If it was withdrawn, as is the practical likelihood if she was returned to Zimbabwe, it was  unlikely that she will survive for more than a year or two, during that time being burdened with serious illness. Her case thus raised yet again the acute dilemmas posed by persons with no right to remain in the UK  who however faced illness and death if they were  expelled.

 

In the consideration of her appeal, the Adjudicator noted among other matters that  anyone wanting to access ARVs [anti-retroviral drugs] or treatment for opportunistic infections in Zimbabwe had to find the money to pay for it. Medical aid schemes did not cover the cost; She would not be able to afford to pay for treatment herself (and her family clearly could not); HIV/AIDS sufferers are subject to stigma, discrimination and isolation. This is a serious and continuing problem and may even affect the way people are treated in hospital. Were  the appellant to be removed to Zimbabwe she would have to cease ARV as she does not possess the resources to cover the cost of treatment. She would experience acute mental and physical suffering as a result of withdrawal of treatment and good specialist support networks. The Expert was in  no doubt that to return her to Zimbabwe would be to reduce her life expectancy and expose her to acute physical and mental suffering. The Adjudicator  found that  clearly the level of suffering would reach the high threshold necessary to engage Article 3 and  that it would be breached if she were to be removed to Zimbabwe.

 

The Secretary of State appealed the Adjudicator’s decision.

 

Article 3 aspect:

 

• The Court of Appeal noted that Counsel for the Appellant recognised that he was constrained, as was the current Court, by the decision of the House of Lords in N [2005] 2 AC 296, analysing the Strasbourg jurisprudence and in particular D v United Kingdom 24 EHRR 423.

• It was however argued that there two respects in in which ZT’S case fell outside the very restrictive regime laid down by N; and one respect in which the IAT had in any event wrongly applied N.

• The first ground of distinction between this case and the previous jurisprudence was that whereas in N it was accepted that the receiving country, Uganda, was making proper efforts to counter an impossibly difficult situation, in the present case the difficulties in Zimbabwe had been significantly contributed to by the policy of the government itself, in particular in its malevolent attitude, discriminatory practices in the application of health care, and systematic violations of humanitarian and human rights laws. It was argued, by analogy with the decision of the European Court of Human Rights in Soering 11 EHRR 439, that a separate category of liability under article 3 arose where the lack of health care of which the applicant complained was directly the fault of the receiving state.

• The Court stated that argument, as a point of law, was misconceived. Soering came nowhere near to laying down any special rule about the behaviour of the receiving state, within the ambit of the single rule of article 3 in terms of inhuman and degrading treatment. In the particular factual category of health cases, N lays down the rules as to how article 3 should be applied. Those rules include a specific requirement of exceptional circumstances. They do not include a special sub-category, turning on the behaviour of the receiving state, that takes the case outside the normal article 3 regime. If, as the Court considered plain, there is no special rule of law relating to the behaviour of the receiving state, then the weight that the tribunal gives to that behaviour must be a matter for the judgement of the tribunal applying the guidance in N. Nothing was put before the IAT that suggested that a detailed examination of the behaviour of the Zimbabwe government was required of it.

• The Court in ZT however stated at paragraph 18 of its judgement: “That said, I can envisage a case in which the particular treatment afforded to an AIDS sufferer on return, in terms of ostracism, humiliation, or deprivation of basic rights that was added to her existing medical difficulties, could create an exceptional case in terms of the guidance given by Baroness Hale of Richmond, cited in paragraph 12 above. That would, in the first instance, be a matter for the Secretary of State. In the present case the evidence before the IAT came nowhere near to supporting such a contention; indeed, the IAT adopted evidence from the then current CIPU report which, although making very grim reading, did not paint a picture as alarming as that contended for by the appellants in late 2005. I revert to this aspect of the case at the end of this judgment”.

• The second distinction from N in connection with article 3, which was also deployed in relation to article 8, was that ZT had only contracted, or at least had only presented with, HIV after she had arrived in this country and been given temporary leave to enter as a visitor. That contrasted with Ms N, who was already HIV positive on arrival in the UK and was thought to have come here in order to obtain medical treatment; though it should in fairness to Ms N be pointed out that there was a specific finding that she was unaware of her HIV status when she arrived in England. The Court said that ZT was in exactly the same position as was Ms N.  ZT never had any right to be in the UK , and absent the present proceedings any permissive presence here would have been terminated nearly five years ago. There was therefore no point of law compelling a distinction between this case and N. And a tribunal would only dubiously be entitled, and certainly is not compelled, to recognise such a distinction when exercising its judgement under the jurisprudence of N.

• Thirdly it was contended on behalf of the Appellant, not as an underlying point of law, but in criticism of the approach of the IAT, that in considering exceptionality a comparison had been made between the situation of ZT and that of the total population of Zimbabwe. The comparison should have been between her situation and that of other HIV sufferers, in the United Kingdom rather than in Zimbabwe. The Court in ZT could not accept that criticism. The unreality of that contention was demonstrated by the very large numbers suffering from HIV in Zimbabwe. ZT’S fears are not as to her position in the United Kingdom, but as to her situation were she to return to Zimbabwe. Once she had failed to demonstrate any significant difference between the position in Zimbabwe and that in other countries, then it was relevant to consider whether she would be in a different position from other AIDS sufferers in Zimbabwe. No attempt was made to demonstrate such a difference to the IAT, as they were correct to record.

• The Court of Appeal therefore concluded that the attack on the IAT’s findings as to article 3 must fail.

 

Article 8 aspect:

 

• The Court in ZT referred to a very well-known passage in Razgar where Lord Bingham, at paragraph 17, gave guidance as to the proper approach to expulsion cases. He said: “In a case where removal is resisted in reliance on article 8, [the] questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country , for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”

• The Court said that it should be emphasised that this taxonomy applies to every article 8 case in which the complaint is of removal from the United Kingdom, whether the complaint is principally based on loss of what the applicant has in the United Kingdom, or on the threat of what will happen to him in the receiving state. There is no possibility of some parts of the enquiry, but not others, applying according to whether the case is categorised as “domestic” or “foreign”: as the appellant’s argument appeared to suggest. At the same time, however, as Sedley LJ pointed out in the course of argument, the issues in questions (2) and (5) may overlap in a given case.

• The Court in ZT however considered that on a proper application of Razgar , and whether or not the IAT expressed itself with total clarity, the present case could not meet the requirements of article 8.

• At paragraph 39 of their judgement, the Court in ZT however   noted that they had to decide this appeal on the basis of the evidence and arguments that were before the IAT some sixteen months ago. Since then, there had been serious further developments in relation to Zimbabwe, as demonstrated by the judgment of the Asylum and Immigration Tribunal in AA. While that case was concerned with returned asylum seekers, which ZT if deported would not be, it at the same time reveals a degree of dislocation and government malpractice that gives concern for any person returning to Zimbabwe. As note at paragraph 18 of the judgement, the Court reiterated that it could envisage a case where humiliation, ostracism and deprivation of basic rights, on top of the burden of being HIV positive, created a situation of exceptionality under the jurisprudence of N. Some of the material more recently to hand about Zimbabwe gave very significant cause for concern in that respect. The Court expressed that it did not know what the Secretary of State’s intentions now were with regard to ZT. For its part, it would consider that before the Secretary of State contemplated actually deporting her to Zimbabwe he must be very sure that current conditions there do not threaten a breach of her article 3 rights. Simply to rely on the decision of the Court will plainly not be enough. In deciding his future policy in this case the Secretary of State must, in the interests of open government and respect for the human rights convention, keep ZT’ advisers, the Terrence Higgins Trust, fully informed, and in particular must give proper and significant warning to them of any decision to remove her to Zimbabwe: so that they may consider what further steps could properly be taken, in the light of up-to-date information, to assert ZT ‘s Convention rights.

FULL SCALE RE-EMERGENCE OF CLAIMS BASED ON ARTICLE 3 MEDICAL  CONDITION CASES AFTER PAPOSHVILI ?

 

As per Paposhvili, where the Convention is to be interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory, then there is no reason why  there should be  continued hesitation in submitting claims  to the Home Office based on health cases relying upon both Article 3 and 8 of the ECHR.

 

On that basis, for relevantly affected current asylum claimants,  additional  reliance  upon Paposhvili can be so placed for consideration whilst the asylum  claim is pending. For failed asylum seekers,  further submissions can be submitted in person at Liverpool.  Where no asylum claim has ever been  made nor is to be made,   then a postal application  on Form FLR(HRO) may be submitted to  Home Office. There  should be no payment due to the Home office on the basis of such applications.

 

Home Office Policy Guidance Human rights claims on medical grounds based on article 3 and article 8 of the European Convention on Human Rights (ECHR), 20 May 2014 states Article 3 applications are non- charged. This policy guidance however seems currently not updated  in some respects  as there are still references to Form FRL(O),  which is no longer in use.

 

The Guidance also currently contemplates the following:

 

“Applications by letter

You should normally reject applications made by letter as invalid and send the applicant the appropriate application form. However, you can accept the application as valid if the letter is submitted with acceptable medical evidence which:

•  confirms the claimant is gravely ill, and

•  has only weeks to live (despite ongoing treatment in the UK)”

 

In relation to charging, Guidance further  states:

 

“Charging: article 3 and article 8 ‘mixed applications’

Where an applicant also cites other articles of the European Convention of Human Rights (ECHR) as a reason of claim (including article 8), you will need to decide if the article 3 claim constitutes a genuine reason of claim, or if it is cited only to prevent the applicant from paying a fee.

Provided article 3 is a genuine basis for a claim, then the whole application (including consideration of any of the other elements of the claim) will be uncharged. This does not mean the article 3 claim must be one which will succeed. However, you must think it has a realistic prospect of success.

If you are concerned the article 3 claim was included only so the applicant did not have to pay a fee you must discuss this with your senior caseworker and get policy advice, see link on right: Administrative operational policy.

In these circumstances only, it may be appropriate to refuse the article 3 claim, and request that the applicant make a further (charged) application for any other reasons”.

 

Regard should also be had to a fee waiver application where appropriate, where   there is some  insistence from the Home Office that a fee is due.

 

The Discretionary Leave Policy is also relevant in relation to matters such as reasons for granting discretionary leave, periods of grants and settlement considerations (Asylum Policy Instruction Discretionary Leave, Version 7.0 , Published: 18 August 2015). Also  pertinent  is Chapter 53 – exceptional circumstances, Enforcement instructions and guidance.

 

Where the application is successful, a claimant may be granted discretionary leave up to a maximum of 30 months (2.5 years). However, the leave must not exceed:

 

• 30 months (2.5 years), and

• life expectancy by more than three months.

 

Applicants are eligible to apply for settlement 28 days before they have completed:

 

• six continuous years of discretionary leave (DL) (if they were first granted DL before 9 July 2012), or

• 10 years of continuous DL (if they were first granted DL on or after 9 July 2012).

 

Among other issues, it is important for claimants to  present clear expert medical evidence also having regard to  relevant uptodate background evidence.

 

After Paposhvili, it will be interesting to see  what the  UK Courts  will make of the judgment having regard to  future caselaw  on  Article 3 health cases.