In PAPOSHVILI v. BELGIUM – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber))  ECHR 1113, the ECHR stated, “The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom”.
Following the decision in Paposhvili, a recent blog article enquired as follows: Paposhvili ECHR: An Easing of The UK Courts Restrictive Approach To Article 3 Medical Condition Cases? Over a decade has passed with Immigration Tribunal Judges being required to in effect almost routinely dismiss Article 3 medical condition appeals originating from claimants living with HIV. After Paposhvili however, it appears that some Judges of the First Tier Tribunal are now daring to take the bull by horns and allow medical condition human rights based appeals without the shadow of the case of “N” constantly over their shoulders.
Has the Secretary of State amended her policy guidance following Paposhvili? No. The current Policy Guidance, Human Rights Claims On Medical Grounds, valid from 20 May 2014 still states:
“Considering article 3 medical claims
“Article 3 case law
Home Office policy for these applications is based on case law. For example, a key case, known as the case of ‘N’, was considered by the House of Lords and the European Court of Human Rights (ECtHR). The ECtHR judgment:
upheld the position taken by the House of Lords that removing ‘N’ would not breach article 3, and
confirmed that cases where the applicant can resist removal and be granted leave to remain on article 3 grounds are exceptional.
Following this case, Home Office policy is to accept that an applicant’s article 3 (medical) rights would be breached by removal to their country of origin only if:
their illness has reached such a critical stage (the applicant is dying), and the conditions to which they will be returned are such that it would be inhuman or degrading treatment to: deprive them of the care they are currently receiving, and send them home to an early death (unless there is care available there to allow them to die with dignity)”.
Referring the case before granting
As the tests for granting discretionary or indefinite leave under human rights (medical) grounds are very high, granting under this policy is rare. If you decide to grant such a case, you must refer the case to a senior caseworker before you do so”.
Published instructions to Home Office caseworkers are therefore that all Article 3 medical cases have to meet the ‘N’ threshold.
Malawi: A recent example
For Malawi, currently, the only published Country Policy and Information Notes on the Home Office website relate to claims focused on sexual orientation and gender identity. The last Home Office Report in relation to Malawi to cater for availability and accessibility of medical treatment for certain medical conditions was the Malawi Country of Origin Information Report of October 2012.
A Malawian claimant had her asylum claim( fear of subjection to FGM for her young daughter) and Article 3 claim refused by the Home Office in April 2017. She had advanced her claim without the benefit of legal representation. No reference was made to the case of Paposhvili within the refusal decision yet considerable reliance was placed upon the case of N v SSHD (2005) UKHL 31( Paposhvili was published in December 2016). Reference was also made in the refusal decision to the above set out Policy guidance of 2014 in relation to medical condition cases.
The refusal decision also specifically referred to a Home Office Country of origin Response dated 05/02/2016 Malawi- Medical Issues: Treatment for HIV. AIDS ref 11/15/-044. This response was stated to have been compiled and researched by the Country Policy and Information Team(CPIT) after researching publicly accessible information and/or obtaining information that can be made publicly available within time constraints. In order to obtain the Response the facts that had been put forward were as follows:
“The applicant is suffering from HIV since 2009, states his CD4 count is currently undetectable. Applicant also states he suffers from depression, castleman disease and Nodal Kaposi Sarcoma. Applicant claims his Castleman and Sarcoma diseases will return if he fails to receive HIV medication. Applicant claims his doctors have predicted that the risk of Castleman or Sarcoma returning is between 9 and 20%. Applicant is treating his HIV with Truvada and Intelence. He is currently taking Mirtazapine and Venlafaxine for depression. Applicant is not taking medication for Castleman or Sarcoma diseases at the moment.
The applicant is a Malawian male who suffers from HIV, Castleman disease, sarcoma and depression. Please confirm availability and accessibility of the medication he is currently taking( listed above) and please list any other medications/treatments available to him in Malawi. Please confirm if this medication is provided free of charge, or if it costs money. Please also confirm how widespread the availability of the medication is. Please also confirm the availability of mental health support in Malawi as the applicant claims to have experienced suicidal thoughts. The applicant also claims he has had two twin children in the UK. They were born premature and are receiving treatment, however specific information on the nature of this treatment has not been provided. Is specialist care for premature babies available in Malawi?
The Response of 5 February 2016 stated:
“A medCOI response dated 1 February 2016 stated that there are specialists in Malawi who can treat people with HIV/AIDS. CD4 counts, viral loads and blood counts can be carried out in Malawi. Immunologists are not available in Malawi. Radiation therapy for the treatment of Kaposi sarcoma, ongoing outpatient treatment by a radiologist and treatment by dermatologists are not available in Malawi.
Etravirine( HIV/AIDS), agomelatine ( anti- depressant), buproprion( anti-depressant) , mainserin( anti depressant), and moclobemide (anti-depressant) are not available. Truvuda ( HIV/AIDS Mirtazapine( anti- depressant) , venlafaxine hydrochloride ( anti- depressant), setraline ( anti- depressant), duloxetine (anti- depressant), paroxetine (anti- depressant) are all available. There are psychologists available in Malawi who can treat people with mental illness.
The cost, accessibility and how widespread the availability of a particular type of medical care is in a particular country is outside the remit of MedCOI.
CPIT could not find information about specialist medical care for babies who are born premature in Malawi”.
Relevant paragraphs of Paposhvili relied upon in relation to the appeal were as follows:
181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.
182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory ….the Court is of the view that the approach adopted hitherto should be clarified.
183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
184. As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants’ fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights. This subsidiary character is articulated in Article 13 and Article 35 § 1 of the Convention.
185. Accordingly, in cases of this kind, the authorities’ obligation under Article 3 to protect the integrity of the persons concerned is fulfilled primarily through appropriate procedures allowing such examination to be carried out .
186. In the context of these procedures, it is for the applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3 ….In this connection it should be observed that a certain degree of speculation is inherent in the preventive purpose of Article 3 and that it is not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment.
187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it …..The risk alleged must be subjected to close scrutiny in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances). The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.
188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill-treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.
189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.
190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care.
191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3.
192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.
How the Immigration Judge approached the appeal
Although the asylum appeal was also allowed, the Immigration Judge relevantly had regard to the following, in summary, by way of consideration and conclusion:
The Immigration Judge noted that the Appellant relied on the recent ECHR case of Paposhvili as the proper approach to be taken for medical cases under Article 3. It was noted that the Court considered the previous test applied as set out in N v UK set a very high threshold for such cases to meet before they would succeed under Article 3. The Court held that the test was too high. It formulated a new approach which it explained at paragraphs 186 to 192 in Paposhvili. In summary, the approach was that there is an initial evidential burden upon an appellant to show there are substantial grounds to believe that there may be an Article 3 breach although the Court acknowledged that a certain degree of speculation was inherent. Then the Court held it was for the contracting state to dispel any doubts and this involved a close scrutiny of the alleged risk.
The immigration Judge found that the Appellant had discharged the evidential burden upon her as set out by the ECHR , paragraph 186 of Paposhvili. The appellant explained and showed evidence of her condition and the treatment she was receiving for it. She raised her doubts about her ability to access the same in Malawi as a result of which she was scared that she would die and her concerns of the impact of that upon her children.
The Home office was found to have filed generic evidence about the availability of ARV treatment in Malawi. None of it referred to the particular treatment the Appellant was on nor whether the medication that the Home office said was available was suitable for the appellant; neither did it address the specific provision of medication for someone in the appellant’s position, namely returning her to her home area, in terms of the nearest test centre, the distances and consequential cost involved and the availability of the medication at test centre.
The Immigration Judge found that the available evidence on the question of whether the appellant would in reality be able to access the treatment she required to prevent her from succumbing to life threatening illnesses was lacking. Firstly, much of it was out of date. There was no real evidence as to how the funding of ARV medication now takes place (if indeed it does) once the foreign aid ended in 2014. Secondly, there was no specific evidence at all about the medication the appellant in fact takes.
In light of the decision in Paposhvlii, the Immigration Judge stated that she found it incumbent upon the Home Office to have submitted evidence in order to dispel the doubts raised by the appellant.
The Judge found that there were substantial grounds to believe that if the Appellant were to return to Malawi she would not be able to access the medical treatment she required to maintain her present state of health. The evidence available to the Judge was sufficiently clear that the intention to provide such treatment free of charge at the point of delivery exists in Malawi but the operation of the same is marred by funding and other practical problems such that its availability to a normal member of the public, likely to be in a rural area, was very much in doubt.
The Immigration Judge concluded that she found that the Secretary of State had failed to discharge the burden upon her to dispel these concerns. She found that the removal of the appellant in these circumstances was a breach of her Article 3 rights as there are substantial grounds to believe that her state of health is likely to deteriorate to such an extent as to prove fatal which is capable of amounting to inhumane and degrading treatment.
The Appellant’s Article 3 claim was allowed.
From the above, it is therefore possible for an Appellant to advance an Article 3 medical condition appeal placing reliance upon Paposhvili and succeed.
Whilst the First Tier Tribunal considers matters on the same ground( medical conditions cases) applying the Paposhvili approach, surely the Home Office cannot continue much longer doing so from another angle ie the “N” approach. The current Home Office policy guidance on medical condition cases urgently needs to be amended/updated so that Home Office caseworkers can attempt to reach proper and effective decisions that cater for changes in caselaw.
As per the contents of the old style CIPU or COI reports which have now been abandoned, it is clear that the Home Office will now need to formulate specific Country policy and Information Notes focused on accessibility and availability of various forms of medical conditions and their treatment in relation to several countries, so as to cater for the resurrection and wave of medical condition claims that are surely forthcoming.