After the ECHR published their judgment in PAPOSHVILI v. BELGIUM – 41738/10 (Judgment (Merits and Just Satisfaction) : Court (Grand Chamber))  ECHR 1113, that most immigration practitioners were seen to tout this case as a glimmer of hope and flexibility in the approach to Article 3 medical condition cases is not in doubt. Paposhvili was variously described as “shedding light”, “new hope”, “ a paradigm shift” and “ a new approach” to the consideration of human rights medical condition cases.
Although the Home Office has doggedly and consistently refused to even acknowledge the existence of the ECHR judgment in subsequent Article 3 refusal decisions, it was thought that both tiers of the Tribunal on appeal would surely grab the opportunity to apply the less restrictive ECHR approach in favour of appellants. That surely seemed to be the “right “ thing to do in light of the given opportunity in Paposhvili. Welcomingly, some First Tier Tribunal Judges have not been hesitate in applying the more humane approach in Paposhvili and allowing medical condition human rights appeals.
What however was not widely expected, nearly one year following the notification of Paposhvili, is the heartless inflexible approach wholly resurrected and maintained by the Upper Tribunal in their decision published on 15 November 2017 in EA & Ors (Article 3 medical cases – Paposhvili not applicable : Afghanistan)  UKUT 445. The appeals in EA centred upon a violation of Article 3 rights. As noted by the Upper Tribunal, the centrepiece of the appellant’s arguments was directed towards the effect of the Strasbourg decision in Paposhvili v Belgium, 13 December 2016, ECtHR (Application No 41738.
The Upper Tribunal’s view in EA was that if the decision in Paposhvili is part of a continuum of developing jurisdiction on the part of the ECtHR consistent with the United Kingdom’s domestic law, it should be followed: this consideration was to take primacy well before it could even be decided whether the three appellants’ claims had established that they were seriously ill or whether they faced a real risk of a serious, rapid and irreversible decline in their health resulting in intense suffering or a reduction in their life expectancy.
The Upper Tribunal also observed that the determination of this preliminary issue depended upon whether the decision of the Court of Appeal in GS (India), & Ors v The Secretary of State for the Home Department  EWCA Civ 40 operates as a binding precedent upon the Tribunal.
Relevant medical conditions pertinent to the three Appellants:
- EA, a citizen of Afghanistan has a mental illness- described as schizoaffective disorder and a mixed personality disorder; alternatively described as paranoid schizophrenia. He is under a regime of anti-psychotic medication. It is a chronic ailment of a relapsing and remitting nature.
- MO is a citizen of Nigeria who suffers from HIV/AIDS. He has been receiving medical treatment in the form of a drug, Stribild, which appears to have been most effective at relieving his symptoms.
- Mr Rashid, a citizen of Bangladesh suffers from ankylosing spondylitis, a long-term, chronic condition in which the spine and other areas of the body become inflamed causing back pain and stiffness and pain and swelling in other parts of the body caused by inflammation of the joints or where a tendon joins the bone. He is receiving treatment for it in the form of medication, brand-named Humira, an anti-inflammatory medication.
Established approach before judgement in Paposhvili and principles arising out of GS(India):
In GS (India), & Ors v The Secretary of State for the Home Department  EWCA Civ 40, the Court of Appeal set out its understanding of the relevant decisions in the House of Lords in D v. THE UNITED KINGDOM – 30240/96 – Chamber Judgment  ECHR 25; N v. Secretary of State for the Home Department  UKHL 31 and N v. THE UNITED KINGDOM – 26565/05  ECHR 453.
GS set out paragraphs 42 to 45 of N v United Kingdom (2008) 47 EHRR 39 as follows:
“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles.
Aliens 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. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D vthe United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.
44.Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights… While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.
45.Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.”
The Court in GS then set out the opinions of Lord Nicholls, Lord Hope and Baroness Hale in N v Secretary of State for the Home Department  2 AC 296 :
15…………article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such ‘medical care’ obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened. But in the case of D, unlike the later cases, there was no question of imposing any such obligation on the United Kingdom. D was dying, and beyond the reach of medical treatment then available
36.What was it then that made the case exceptional? ………..It was the fact that he was already terminally ill while still present in the territory of the expelling state that made his case exceptional.
69.In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (ie 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……..”
The Court in GS concluded in paragraph 62 that the jurisprudence upon Article 3 to be derived from them did not extend the reach of the departure permitted in D’s case.
Seminal restatement of Article 3 by Paposhvili: The “Paposhvili test”
Paragraph 181 of Paposhvili summarises the established position which the ECHR sought to restate in December 2016:
“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”.
The “Paposhvili test” is set out in paragraph 183 of the judgement:
“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”.
What other principles of law were applied by the Upper Tribunal?
Closely following the Supreme Court decision in Manchester City Council v Pinnock  UKSC 6, the Upper Tribunal summarized its effect as follows:
- The Supreme Court is not bound to follow a decision of the ECtHR.
- The decisions of the ECtHR are of persuasive effect because they come from an authoritative source and from a Court whose rulings are acknowledged by statute. Indeed, s. 2(1) of the Human Rights Act 1998 expressly provides that a court or tribunal determining a question which has arisen in connection with a Convention right ‘must take into account’ a judgment or decision of the ECtHR. The obligation is absolute, ‘must’, but the nature of the obligation is to take it ‘into account’, not necessarily to apply it.
- However, a different approach is called for on the part of the Supreme Court when there has been a clear and constant line of authority but only if it is consistent with United Kingdom law (or at least some ‘fundamental substantive or procedural aspect’ of it) or the decision of the ECtHR is not flawed in a material way.
Upper Tribunal’s critical approach to Paposhvili and its conclusions:
The Upper Tribunal considered as follows:
- Paposhvili is a departure from clear and constant case law. There is no doubt that it was an extension of earlier jurisprudence and a departure from it.
- Furthermore, in seeking to depart from the decision in N v UK  EHRR 39, Paposhvili extended the principle in a way so as to include situations involving the removal of a seriously ill person in respect of whom ‘substantial grounds had been shown to believe in 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 serious rapid and irreversible decline to his or her state of health resulting in intense suffering or a significant reduction in life expectancy’, (‘the Paposhvili test’).
- The ECtHR in Paposhvili was departing from its own case law as established in N v UK that such claims were inadmissible, as being manifestly ill founded.
- Paposhvili is an example of the ECtHR departing from the clear and constant line of authority and resulted in a decision that is not consistent with United Kingdom domestic law.
- The citations by the Court of Appeal in GS9India) represent the authoritative statement of United Kingdom domestic law. They are also consistent with, and an application of, the clear and constant line of authority of the ECtHR prior to Paposhvili.
- The words of Baroness Hale, in N v Secretary of State for the Home Department  2 AC 296 permit no departure from the ‘D exception’, that is, the deathbed threshold.
- GS(India) is binding precedent and the Tribunal is bound to follow it.
- It is not permissible for the Tribunal to depart from this authority and, in particular, cannot do so by reliance upon the Paposhvili enlargement set out in paragraph 183 of the ECtHR’s judgment. Hence, the recasting of Article 3 is not part of United Kingdom domestic law.
- Furthermore, there is an internal logic in setting the threshold very high. If the invaluable scheme of humanitarian protection is to operate, it must be made to work. It can and does work if a high threshold is maintained. Conversely, if the demands upon it cannot be met, it will not work. Further, it runs the risk of becoming arbitrary if the threshold is over-elastic and ill-defined. That is precisely why the Supreme Court and the Court of Appeal set the threshold at a level which is both high, intelligible and ascertainable, thereby avoiding the injustice of a test which is as long as the judge’s sleeve.
- The Paposhvili principle has no application in light of the Court of Appeal’s decision in GS (India).
The Upper Tribunal in EA was clearly not impressed by the “new approach Paposhvili test” and has refused to open the door to what they have defined at paragraph 32 as a lower threshold that is “over-elastic and ill-defined”.
The Upper Tribunal has made it clear that the very high threshold as set out in established jurisprudence is to be followed.
In effect and in practice, the Home Office and the Tribunal will very likely continue to seek to apply Article 3 of the Convention only in cases where the person facing expulsion is close to death. Does this however mean that applications directly to the Home Office either by way of formal postal application or further submissions to UKVI Liverpool, should not be advanced? Individual application are considered on their own merits and as such the outcome in EA is no bar to such applications.
There will be cases where appellants have been successful in Article 3 medical condition appeals before the First Tier Tribunal but with the result that the Secretary of State has applied for permission to appeal to the Upper Tribunal, with such permission being granted. Although in some cases it will likely now be argued at the oral permission hearing that the Upper Tribunal decision in EA is wrongly decided, it is clear that in EA itself, the Upper Tribunal observed and concluded as follows:
- The First-tier Tribunal Judge in EA’s appeal had considered the case law in Article 3 cases solely by reference to Paposhvili and concluded that the case law contained within the decisions of the Supreme Court deprived aliens who were seriously ill but whose condition was less than critical of the benefit of the provisions of Article 3.
- The Upper Tribunal also noted that the FTT decision contained no discussion as to the approach that has to be adopted to decisions of the ECtHR in cases which appear to run counter to decisions of the House of Lords or the Supreme Court.
- Further, the FTT decision which was made on 31 March 2017 made no reference to the decision in the Court of Appeal in GS (India) and its potential effect as a matter of judicial precedent.
- The Upper Tribunal considered that as a result of their decision on the preliminary issue, there was no arguable case that the appellant could put forward in support of the First-tier Tribunal’s approach both as to error and the materiality of the error. In these circumstances, the Upper Tribunal allowed the appeal of the Secretary of State and set aside the decision of the First-tier Tribunal.
- It was noted however that the appellant was permitted to appeal the Upper Tribunal’s decision without having to await the outcome of the remaking of the decision by the First-tier Tribunal
- It was also noted that a successful application to the Court of Appeal would operate as a stay on the appeal before the First-tier Tribunal. Were an application to be made for permission to appeal to the Court of Appeal, the Upper Tribunal would be minded to grant permission to appeal.
- The conclusion of the Upper Tribunal however was that the decision of the First-tier Tribunal revealed an error on a point of law and the appeal was remitted to the First-tier Tribunal for it to be re-made.
At paragraph 13 of EA, the Upper Tribunal acknowledged that whilst the statements of principle set out in Manchester City Council v Pinnock are directed towards the Supreme Court’s own approach to decisions of the ECtHR, they shed light on how the Tribunal is to approach such decisions. It was also observed that they say, nothing to the effect that the Tribunal is to apply decisions of the ECtHR which are not consistent with United Kingdom domestic law, including decisions of the Court of Appeal.
It is worth noting however that the Court of Appeal in The Secretary of State for the Home Department v MM (Zimbabwe)  EWCA Civ 797, although without any express mention of Paposhvili, has already recently referred to a less restrictive approach to Article 3 mental medical condition cases as follows:
“16. However, since the case is to be remitted for other reasons, I consider that the Upper Tribunal should consider all aspects of it afresh to reach its own conclusions on this and each other point…………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”.
There does not appear to be a reference to The Secretary of State for the Home Department v MM (Zimbabwe)  EWCA Civ 797, in the Upper Tribunal’s decision in EA.
It is a forgone conclusion, whether on appeal to the Court of Appeal by EA or in some other future appeal, that the issues dealt with by the Upper Tribunal by reference to the correctness or otherwise of “Paposhvili test”, are bound to be considered in clearer detail in the near future by the Court of Appeal.