It was in 2005, when a Zimbabwean claimant came to the office clutching two determinations promulgated by different Immigration Judges. Please help me, he said in a panic, I won my appeal on the basis of my medical condition, but now that decision has just been overturned by a Senior Judge. His own legal representative had informed him that day that there were was nothing further that could be done to assist him.
I was taken aback that the first Judge had allowed the appeal; not because appellants should not win their appeals, but because the House of Lords had made it clear a few months earlier in 2005 that, “ the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case”– N v. Secretary of State for the Home Department  UKHL 31
By the time the claimant came to the office, I had had my own fair share of relevant appeals caseload brusquely dimissed on the basis of N. It took several meetings for him to eventually accept there was to be no turning back to time to steal back his “win”. This claimant subsequently obtained indefinite leave to remain a few years later under the legacy provisions but not once during the intervening years was there any further attempt to put forward a further Article 3 claim on his behalf- there would have been no point. On the basis of the caselaw and the positive regular medical reports from his medical practitioners confirming that he was doing well, there would have been no point in advancing such a claim.
Although the Secretary of State may well over the years have been granting leave to remain in some such cases on a discretionary basis, attempts to argue such medical condition cases before the Tribunal, have mostly collapsed having come up against several judicial brick walls.
A consideration of the restrictive approach in N v UK and subsequent caselaw is out in the blog post below:
Paposhvili ECHR: An Easing of The UK Courts Restrictive Approach To Article 3 Medical Condition Cases
Currently, the increasing adverse conditions pertaining to Zimbabwe have a real impact upon the ability to resurrect advancement of Article 3 medical condition cases placing reliance upon the recent case of Paposhvilli. The failed economy and cash shortage are now such that it has recently been reported that there are “massive Anti Retro Viral (ARV) drug shortages” in Zimbabwe.
A substantial number of failed Zimbabwean asylum seekers of lengthy residence have been left in limbo in the UK, undocumented: Zimbabwean failed asylum seekers in the UK: Why some won’t or can’t return home
Some such individuals, unable to place reliance upon the Immigration Rules, nor having any viable asylum claim are living with HIV, under treatment in the UK. Most have expired passports and as such unless they agree to voluntarily return to Zimbabwe, seem irremovable- Valid Passport with the Home Office? Zimbabweans with no claims still very much removable from the UK
There being no policy however against enforced removals to Zimbabwe, the Home Office would still be on record as indicating affected individuals are intended to be removed to Zimbabwe.
The immediate dilemma as regards advancing relevant Article 3 based claims is that relevant country guidance in relation to Zimbabwe states in summary:
RS and Others(Zimbabwe – AIDS) Zimbabwe CG  UKUT 00363:
“A significant number of people are receiving treatment for HIV/AIDS in Zimbabwe, and hence a Zimbabwean returnee will not succeed in a claim for international protection on the basis of a diagnosis of HIV/AIDS unless their case crosses the threshold identified in N v United Kingdom.
Though there is some evidence of discrimination in access to AIDS medication and food in Zimbabwe, it is not such as to show a real risk of such discrimination.
The return to Zimbabwe of a Zimbabwean diagnosed with HIV/AIDS does not place the United Kingdom in breach of its obligations under the Disability Discrimination Act”.
There is however now the recent ECHR case of Paposhvilii upon which reliance can be placed upon taking also into account recent background evidence.
THE RELEVANT BACKGROUND EVIDENCE:
Zimbabwe: ARV Shortage: a Stitch in Time Saves Nine, 23 August 2017, http://allafrica.com/stories/201708230100.html:
“…..On Monday, Zimbabweans woke up to news that seropositive people who are taking Abacavir — a second line ARV drug — are being given a week’s supply of the drug instead of the traditional three months because of dwindled stocks.
Abacavir is one of the commonly used ARVs for management of people who would have failed or reacted to the first line drugs.
Reports of shortages of life-saving second line anti-retroviral drugs in the country’s public health institutions are worrying and pose serious health implications for people living with HIV and Aids. Given relatively high levels of adherence to HIV treatment in Zimbabwe where an estimated one million people are on ARVs, 35 percent that are on second line ARV treatment and are affected by the shortages deserve to access treatment. Access to health care is a human right enshrined under the Universal Declaration of Human Rights and other health treaties which Zimbabwe is a signatory to”.
ARV shortage hits Zimbabwe, lack of foreign currency cited,21 August 2017, http://news.pindula.co.zw/2017/08/21/arv-shortage-hits-zimbabwe-lack-foreign-currency-cited/#.WbNDJGdwbcs:“
The Ministry of Health and Child Care has acknowledged that there is a shortage in anti-retroviral drugs in public health institutions. Communication intercepted by The Herald shows that the shortage is as a result of foreign currency shortages.Part of the electronic communication reads:
The recommended pipeline months of stock levels are a result of the current country liquidity challenges which Natpharm is experiencing in using the National Aids Trust Fund with suppliers as they require hard currency to facilitate the process, hence the below minimum months of stock at national level.
National Aids Council (NAC) operations director Mr Raymond Yekeye told The Herald that they had budgeted $20 million to buy ARVs since the beginning of 2017, but they have not yet been allocated the foreign currency to proceed with the orders”.
Zim ARV Shortage Could Trigger Massive Drug Resistance,21 August 2017, https://healthtimes.co.zw/2017/08/21/zim-arv-shortage-trigger-massive-drug-resistance/:
“ZIMBABWE today (21/08/2017) woke up to devastating news that the country’s public health and pharmaceutical institutions have been hit by massive Anti Retro Viral (ARV) drug shortages.
According to an article in the Herald, HIV positive people on second line Abacavir ARV drugs are the most affected and they are being given a week’s supply of the drug instead of the traditional three moths supply due to stock outs. It is believed that the huge stock outs and shortages in drug supplies are being exacerbated by the prevailing cash crisis which has seen local health institutions and pharmacies failing to make orders with international suppliers.
The issue of drug shortages however could soon become the least of our worries as we might be faced with yet an even worse and life threatening situation whereby more cases of ARV drug resistance will be recorded. The shortage is affecting not less than one million people who are on second line ARV treatment.
Even though the National AIDS Council (NAC) had budgeted for $20 million for the procurement of the second line drugs since they are not catered for under any funding from the donor community and development partners, they are are yet to receive their allocation and they have not made any procurement since beginning of the year”.
“MSF runs projects in partnership with the Zimbabwean Ministry of Health and Child Care (MoHCC), providing treatment for HIV, tuberculosis (TB), non-communicable diseases and mental health issues.
The economic situation continues to decline with very little funds available for any public expenditure and social services. As a result, the health sector faces numerous challenges, including shortages of medical supplies and essential medicines. In addition, the country was affected by floods and regular outbreaks of water-borne diseases due to deteriorating water and sanitation conditions in parts of the country, including the capital Harare.
While HIV prevalence has decreased from 30 per cent in the early 2000s to 15 per cent today, there are still major gaps in services, such as the availability of routine viral load monitoring and second-line antiretroviral (ARV) treatment. Cervical cancer is an emerging health problem, with women living with HIV five times more likely to contract it than those who are not”.
Lack of viral load machines hamper treatment, 23 October 2016, http://www.sundaymail.co.zw/lack-of-viral-load-machines-hamper-treatment/:
“The test helps keep people on first-line ARVs, which cost a fraction of the second and third line treatments. The National Aids Council (NAC) 2015 report reveals that there are 15 337 people on second line treatment, an increase from 13 036 recorded in 2014. While having people living with HIV on second line treatment is proving to be expensive for Zimbabwe, quite a sizeable number are failing on it and these have to be put on third line treatment.
The University of Zimbabwe Clinical Research Centre (UZ-CRC) had eight patients on third line ARVs as of September 2012 with an anticipation of not more than 100 people on third line in the country. Speaking during a media tour conducted by National Aids Council, Zimbabwe National Network of People Living with HIV (ZNNP+) Manicaland provincial co-ordinator Mr Lloyd Dembure said the lack of equipment is a dent on the country’s efforts of providing quality care and treatment.
“We would want a situation where our members can go for viral load testing after six months as prescribed by the WHO and get their results instantly,” he said.
“Some of our members reveal that they go for viral load testing at clinics and hospitals in the province but get frustrated and go back home empty-handed and may not come back to collect their results given that they travel long distances”.
Zimbabwe’s Cash Shortage Is Putting Women’s Health On The Line, 12 September 2016, http://www.huffingtonpost.com/entry/zimbabwe-womens-health_us_584b03a1e4b0bd9c3dfcb812:
“….Antiretroviral (ARV) drugs are free at government institutions, but supply is irregular and patients don’t always come for treatment. Aletta Sigauke, a nurse at a council-run clinic in Bulawayo, says patients often miss their daily ARV pill collection because they are waiting in long lines for cash. Skipping dosages can be risky, she says, particularly for those in the third stage of treatment”.
No cash, no cure: Zimbabwe’s hospitals buckle amid economic crisis,14 July 2016, https://www.theguardian.com/world/2016/jul/14/no-cash-no-cure-zimbabwes-hospitals-buckle-amid-economic-crisis:
“According to a local watchdog, 90% of healthcare institutions don’t have essential medicines in stock
Zimbabwe’s health service in particular has been hit hard. There is a ban on commodity imports and civil servants, including nurses, joined the strike last week after the government failed to pay their salaries.
According to a local watchdog, Citizens Health Watch, 90% of healthcare institutions don’t have essential medicines in stock, and there have been sporadic shortages of antiretroviral (ARV) drugs, which are supposed to be free for HIV patients in public hospitals.
“Patients are [being] asked to buy from private pharmacies,” explains Mercy Bosha, programme manager at Citizens Health Watch. She estimates that most hospitals across the country are running at less than 30% capacity.
“It has been difficult for me trying to make ends meet… the hospitals don’t have medication and I have to buy my drugs from private pharmacies for about $60 every month,” Matsanda adds.
Like other patients over 65, along with young children and pregnant women, Matsanda is not supposed to be paying for treatment.
According to government policy they should be entitled to free healthcare, but the health minister, David Parirenyatwa, recently admitted to parliament that this wasn’t happening.
Many Zimbabweans have also questioned why medicine is more expensive than in neighbouring countries.
A yellow fever vaccination may cost $66 in Zimbabwe but only $24 in Kenya, according a recent parliamentary debate, and reports from local newspapers have suggested that Zimbabweans in the north of the country have to “run with cooler boxes” to Zambia to buy blood for sick relatives because it’s cheaper there. In Zimbabwe, fees vary and appear to be decided on in an ad hoc manner.
Bosha says a seven-day course of the commonly used antibiotic Amoxicillin can cost up to $7, and a monthly supply of ARVs between $40 and $50. An HIV viral load blood examination, which is needed to determine whether patients are responding well to ARVs, can cost up to $30 at a private laboratory. Most public healthcare institutions don’t offer this service.
The medical system is in such disarray that nearly two-thirds of sick Zimbabweans do not seek out the treatment they need because they can’t afford it, according to the Ministry of Finance and Economic Development.
The squeeze is also being felt by the country’s more affluent citizens, too. Private doctors have reportedly been demanding cash up front from patients with medical insurance after claiming that they are not being paid or time, or being paid enough”.
Zim runs short of viral load testing machines,30 April 2016, https://www.newsday.co.zw/2016/04/30/zim-runs-short-viral-load-testing-machines/:
“MASVINGO — People living with HIV and Aids in Masvingo have decried the lack of viral load testing machines at hospitals to enable them to measure the amount of virus in their blood in line with the World Health Organisation (WHO) guidelines.
According to WHO, all people living with HIV and Aids should ascertain the virus load in their bodies every six months for prognosis, prevention purposes as well as managing therapy.
The HIV viral load may also be used to help determine whether the virus infecting a person has become drug-resistant.
If a person does not respond well to treatment and the amount of virus continues to increase, then the virus may be resistant to that particular anti-retroviral treatment (ART).
One person living with the virus said at the awareness campaign that people have to wait for close to a month after their blood samples are taken before they can know the amount of the virus in their bodies.
“We go to hospitals here in Bikita for viral load testing and we have to wait for the results for close to a month as the blood samples are sent to Mutare General Hospital. We do not get the facilities here due to lack of the machines and this leaves us in the dark concerning the amount of HIV in our bodies,” she said.
“We would want a situation where our members can go for viral load testing after every six months as prescribed by the WHO and get their results instantly,” he said.
“Some of our members revealed they go for viral load testing at hospitals here, but are frustrated to go back home empty-handed and may not to come back and collect their results after a long period given that they travel long distances. We would like our constituency to access the facility for quality care and therapy.”
Public hospitals hit by ARV shortage, 24 December2014, https://www.theindependent.co.zw/2014/12/24/public-hospitals-hit-arv-shortage/:
“MORE than half a million people living with HIV and Aids are in danger as public hospitals countrywide are experiencing shortages of second line anti-retroviral (ARVs) drugs.
Ministry of Health sources said public health institutions, especially the Beatrice Road Infectious Diseases Hospital (popularly known as Nazareth), are experiencing acute shortages of second line drugs to the extent they are now dispatching drugs meant for children to adults as a stopgap measure.
“Adults are being given children’s second line drug syrup because the hospital is running out of drugs,” said an HIV patient who was at the hospital to receive his drugs for this month.
Zimbabwe HIV and Aids Activist Union (Zhaau) vice president Stanley Takaona said the government has put its people on death row by failing to avail the life-saving drugs.
“This is surprising because recently we went for a community monitoring project in Mashonaland Central and what we saw was shocking,” Takaona said.
“In Mashonaland Central, children are being given medication meant for adults, the opposite of what is happening at Nazareth,” he said.
“Many people will be in the rural areas during the Christmas holidays so they collect drugs in advance thus increasing pressure on public health institutions. There is need for planning in advance because we experience this problem every December.”
In 2012 Zimbabwe switched to Tenofovir, a new ARV regimen following guidelines released by the World Health Organisations. The new drug is said to have less side effects compared to Stalanev which government has been prescribing to all HIV patients.
However, since the introduction of the new drugs there has been a decline in the supply of ARVs in all public institutions leading to patients getting one week’s supply instead of two months’ stock, or are at times given old drugs that have serious side effects.
So acute is the situation that patients are now being forced to switch to drug combinations, something which experts say compromises their health”.
RELEVANT CONSIDERATIONS AND CONCLUSIONS IN PAPOSHVILLI
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.
APPLICABLITY OF PAPOSHVILLI TO THE CURRENT ZIMBABWEAN SITUATION:
Having regard to the new approach in Paposhvilii, those claimants removable to Zimbabwe can submit Article 3 claims to the Home office based on their medical condition. They would need to show that they are seriously ill and that there are substantial grounds for believing that although not at imminent risk of dying, they would face a real risk, on account of the absence of appropriate treatment in Zimbabwe or the lack of access to such treatment. The contention also being that such a claimant faces being exposed to a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a significant reduction in life expectancy.
It would be for the claimant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if removed to Zimbabwe they would be exposed to a real risk of being subjected to treatment contrary to Article 3. Relevant detailed and effective up to date medical reports would need to be provided to the Home Office. Reliance would also need to be placed upon the applicable country conditions by reference to reliable background evidence sources.
Where such evidence is adduced by the client, it is then for Secretary of State to dispel any doubts raised by it.
As regards the factors to be taken into consideration, the Secretary of State must verify on a case-by-case basis whether the care generally available in Zimbabwe is sufficient and appropriate in practice for the treatment of the claimant’s illness so as to prevent them being exposed to treatment contrary to Article 3.
The Secretary of State must also consider the extent to which a claimant will actually have access to the care and the facilities in Zimbabwe. There is a need to have regard to the accessibility of care, 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 in Zimbabwe.
Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the claimant – on account of the general situation in Zimbabwe and/or their individual situation – the Secretary of State must obtain individual and sufficient assurances from the Zimbabwean authorities as a precondition for removal, that appropriate treatment will be available and accessible to the claimant concerned so that they do not find themselves in a situation contrary to Article 3.
The real therefore issue is whether removal to Zimbabwe would result in an individual being exposed to a risk of treatment prohibited by Article 3.
In The Secretary of State for the Home Department v MM (Zimbabwe)  EWCA Civ 797 (22 June 2017), the Court of Appeal recently sought to advocate a less restrictive approach to an Article 3 mental health condition claim from a Zimbabwean national, although no specific reference was made to ECHR case of Paposhvili,
At paragraph 16 their judgement the Court of Appeal stated:
“…..Also, I think it would be desirable for the Upper Tribunal to look again at whether MM has a good basis for resisting deportation under Article 3 of the ECHR on the grounds of the likely radical deterioration in his mental health if he is returned to Zimbabwe. Although we did not have the benefit of argument on this point, I have some doubt whether the principle to be applied under Article 3 in this case is necessarily as restrictive as the FTT thought it was. It seems to me to be arguable that to return someone to a country where they are likely to suffer a profound mental collapse, possibly amounting in effect to a destruction of their personality, might infringe the right under Article 3 to protection against torture and inhuman treatment and might qualify as one of those very exceptional cases in which lack of medical services in the home country might constitute a bar to deportation (see D v United Kingdom (1997) 24 EHRR 423 and N v United Kingdom (2008) 47 EHRR 885, GC). It may be that MM will face an uphill struggle to make out such a claim, but I consider that this issue should be open for fresh consideration by the Upper Tribunal when the case is remitted to it. Thus, although I consider that the FTT erred in treating this factor as decisive under Article 8 in circumstances in which there was no violation of Article 3, it is possible on a fresh assessment under Article 3 that MM could succeed under that article”
Unless and until proper guidance is forthcoming from the higher courts in the UK as regards the proper approach to be applied following Paposhvilli, continued reliance can be placed on the ECHR Judgment. Some First Tier Tribunal Judges are certainly not hesitating to do so: Paposhvili and HIV/AIDS: First Tier Tribunal Judge allows Article 3 medical condition appeal by a Malawian claimant
WHAT APPLICATION FORM FOR USE AND IS SUBMISSION OF AN ARTICLE 3 CLAIM FREE OF CHARGE?
The relevant application form is FLR (HRO). The Relevant Home Office policy guidance, Fee waiver: Human Rights-based and other specified applications, states:
“Other ECHR rights
Applications for leave to remain based on ECHR Article 3, whether as part of a claim for protection or on the basis of a medical condition, are non-charged applications so the fee waiver policy does not apply.
Applications for leave to remain based on other (non-Article 3) ECHR rights will be subject to the fee waiver policy where failure to waive the fee before considering the application would be a breach of the ECHR because the applicant would be unable to establish their right to remain in the UK. Where an application makes reference to a number of ECHR rights including Article 3, the application will be non-chargeable only where the article 3 claim is a genuine basis for claim. This does not mean the Article 3 claim must be one that will succeed but it must have a realistic prospect of success (see Human rights claims on medical grounds)”
There is therefore no need to pay a Home office application fee, the NHS surcharge or apply for a fee exemption so long as proper regard is placed upon the relevant Home Office Guidance.