Court of Appeal approves country guidance CM( Zimbabwe) and advocates less restrictive approach to Article 3 claims

In The Secretary of State for the Home Department v MM (Zimbabwe) [2017] EWCA Civ 797 (22 June 2017),  the Court of Appeal very recently  sought to advocate a less restrictive approach  to an Article 3 mental health condition claim from a Zimbabwean national,  yet  within its judgment,  glaringly  fails to  refer to the ECHR case of Paposhvili, from which that approach can arguably be said  to originate from.

 

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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.

 

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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”.

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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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