Despite the Court of Appeal’s guidance in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64 as regards the test in paragraph 183 of Paposhvili, it is obvious that there is still some unfinished judicial business yet to be resolved. This is evident as the Court in AM was ultimately at pains to stress that it was, “ highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage”. The Court had been urged by the appellants not express any view about the true meaning and effect of the guidance in Paposhvili, and in particular regarding the test in paragraph 183 of the judgment in that case: the contention was that the Court should not venture to do this, but should simply apply the law as laid down domestically by the House of Lords in N v Secretary of State for the Home Department and dismiss the appeals, with a view to granting permission to apply to the Supreme Court. It was argued that since the Court of Appeal was bound to dismiss the appeals, anything that Court said about the new test in Paposhvili would be obiter and would not provide assistance for other courts or tribunals. The Court of Appeal ploughed ahead nonetheless and made it clear that, “We are providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance will be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way”.
A question therefore arose in AM as detailed below as regards the operation of Article 3 of the ECHR in relation to removal of foreign nationals from the UK where they are suffering from serious illnesses. The issue was whether the test for application of Article 3 in this context should now be adjusted in light of the Grand Chamber judgment in Paposhvili v Belgium.
Summary Background:
The appeal concerned two Appellants, AM and Mr Nowar :
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The appellant, AM was a national of Zimbabwe, born in 1987 who became subject to deportation proceedings following several convictions. AM is HIV positive. The issue which arose was whether to return AM to Zimbabwe would violate his right under Article 3 not to be subjected to inhuman treatment, by reason of his medical condition. In an appeal, the First Tier Tribunal held that Article 3 did not prevent the deportation of AM; it was not satisfied that AM was at a critical stage of his illness nor that treatment for his condition would not be available for him in Zimbabwe if he were returned there, even though the specific ARV drug he was then taking (Eviplera) would not be available. The Upper Tribunal dismissed AM’s appeal, holding that the FTT had properly considered the medical evidence and that there was nothing in it to indicate that Eviplera was the only possible ARV drug which AM could take. The Upper Tribunal observed that the burden of proof was on the appellant and that it had been incumbent on him to show that he would be at risk of a significant deterioration in his health and possible death in Zimbabwe if he could not take Eviplera but could only take the other ARV treatments which were available in Zimbabwe. It was also considered that the FTT had not engaged in improper speculation, but in light of the burden of proof and the evidence before it had come to a conclusion which was properly open to it.
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Mr Nowar was a national of Jordan, born in 1986. Mr Nowar was diagnosed with cancer. In an appeal, the First Trier Tribunal found that Article 3 did not impose an obligation on an expelling state to provide individuals with a particular standard of health care. It was undeniable in this case that the appellant did receive sufficient health care in Jordan sufficient to put him into remission. The Judge could not construe any of the UK medical evidence before him to found the basis for a contention that either the Jordan treatment fell so below international standards that it could be said to have done him harm, or that he has shown that he would be denied treatment on return. The Judge was satisfied on the evidence before him that he would be able to avail himself of further treatment in Jordan and, equally importantly, that he would have the considerable support of his family and friends in doing so.
What is the domestic position in medical condition cases?
The position in domestic law was authoritatively settled in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296. The approach laid down by the House of Lords in that case was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39.
The test to determine when Article 3 may prevent removal of a foreign national from the UK, where he is suffering from a medical condition which may get worse if he is removed, was authoritatively laid down in domestic law by the House of Lords in N v Secretary of State for the Home Department. That case concerned a Ugandan woman suffering from advanced HIV, or full-blown AIDS, who was receiving effective treatment in the UK which would not be available to her if she was returned to Uganda. If returned to Uganda, the claimant would die within a matter of months, whereas if she stayed in the UK she could live for decades. Despite this, her claim under Article 3 failed. Lord Hope of Craighead gave the principal speech. He referred to what was then the leading judgment of the ECtHR, in D v United Kingdom (1997) 24 EHRR 423, which also concerned expulsion of a foreign national suffering from AIDS, and a range of other authorities.
The claimant in D v United Kingdom was in an advanced stage of AIDS and close to death; he would receive no comfort or moral support while dying if returned to his country of origin. The case was treated as an exceptional one, in which the ECtHR held that Article 3 would prevent removal. In Amegnigan v The Netherlands, [2004] ECHR 741, judgment of 25 November 2004, the ECtHR characterised the circumstances in D v United Kingdom as “very exceptional”. Lord Hope set out the test to be derived from the Strasbourg authorities in [50], as follows:
“…. For the circumstances to be … ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. …”
As Laws LJ summarised the effect of these opinions in at [66] in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312, according to the House of Lords the D v United Kingdom exceptional situation in which Article 3 will prevent removal to another country with lesser standards of care “is confined to deathbed cases.”
The claimant in N v Secretary of State for the Home Department applied to the ECtHR, relying on Article 3. In its judgment in N v United Kingdom, the Grand Chamber dismissed her application, holding that her case “does not disclose very exceptional circumstances, such as in D v United Kingdom” and that her removal to Uganda would not give rise to a violation of Article 3. The ECtHR referred to the speeches in the House of Lords without adverse comment. Its summary of the principles to be drawn from its own case law included this:
“42. In summary, the Court observes that since D v 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 Art.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 Art.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 v 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.”
What is the Paposhvili Test?
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”.
Where a foreign national seeks to rely upon Article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that Article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country, which is reflected in the formulations in Paposhvili, paragraphs 173 and 183. In Paposhvili, at paragraphs 186 to 187, the Grand Chamber of the ECtHR gave guidance how he may achieve that, by raising a prima facie case of infringement of Article 3 which then casts an evidential burden onto the defending state which is seeking to expel him.
Court of Appeal’s considerations and conclusions:
The Court’s considerations and conclusions were as follows:
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The Court of Appeal observed that it was common ground that neither AM nor Mr Nowar could bring himself within the test for application of Article 3 laid down in N v Secretary of State for the Home Department and N v United Kingdom – both of them were very far from being able to do so.
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The Court of Appeal further observed that the parties were also in agreement that the decision of the House of Lords in N v Secretary of State for the Home Department was binding authority so far as the Court of Appeal was concerned regarding the test to be applied in domestic law in this type of case, with the consequence that both appeals to the court had to be dismissed. It was common ground that this was so even though it appeared that the ECtHR had more recently, in Paposhvili, decided to clarify or qualify to some degree the test previously laid down in N v United Kingdom, which corresponds with that set out by the House of Lords in N v Secretary of State for the Home Department. This was a result of application of the usual rules of precedent in this jurisdiction.
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It was considered that the context of the case in Paposhvilli and what exactly was decided in it are of significance for interpreting the guidance given at paragraph 183. The Grand Chamber did not itself rule that on the medical evidence adduced by the applicant and his contentions about the state and availability of medical assistance in Georgia, had those been properly examined by the Belgian authorities, it would in fact have been a violation of Article 3 to remove him to Georgia. Its ruling was to the effect that Belgium would have violated a procedural aspect of Article 3 if it had removed him without examination of the issue which the applicant had raised relying on Article 3 and his medical condition.
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It was noted by the Court that there were a significant number of other cases involving claims by foreign nationals seeking to resist removal from the UK by invoking Article 3 on medical grounds which were already in the system, in which reliance was sought to be placed on Paposhvili even though the claims had been dismissed by application of N v Secretary of State for the Home Department and N v United Kingdom. In those cases, orders have been made in a similar way to prevent the removal of the appellants from the UK until final determination of their cases, which were on hold until the position in relation to the adoption of the guidance in Paposhvili into domestic law had been clarified. In addition, it was noted that similar new claims based on application of Article 3 on medical grounds may be brought forward at any time. In relation to those claims, all courts below the Supreme Court would be bound by the decision in N v Secretary of State for the Home Department, but claimants may contend that they have grounds for saying that their cases are covered by the new guidance in Paposhvili (in particular at paragraph 183 and that any question of their removal from the UK should be stayed until the Supreme Court had decided to modify domestic law (potentially decisively in their favour) by reference to that guidance.
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The Court of Appeal stated in all of these situations, where an appellant or other claimant has no good claim to resist removal from the UK other than on the footing that the Supreme Court might adopt the guidance in Paposhvili, a stay of removal would usually only be justified pending a new decision by the Supreme Court if their case would satisfy the test set out in Paposhvili at paragraph 183. If a court or tribunal at a full hearing can determine that it does, a stay is likely to be justified; and if not, not. If a court or tribunal is for some reason having to make a decision regarding a stay without a full examination of the Article 3 case with reference to the test in Paposhvili, then it might be sufficient if the claimant has a good arguable case that his claim would satisfy that test.
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It was considered relevant and appropriate for the Court of Appeal to rule upon the meaning and effect of the guidance in Paposhvili, in particular as regards the test in paragraph 183. In doing so, the Court would provide guidance to other courts and tribunals which are faced with arguments based on the test in Paposhvili to ensure that they adopt a uniform and consistent approach to such arguments. The Court noted that at the very least, what they say would be persuasive authority. The Court however stated that it went further than this as the Court was providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance would be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way.
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In considering the extent of the change in the law applicable under the Convention which is produced by the judgment in Paposhvili, as compared with the judgments in D v United Kingdom and N v United Kingdom, it was clear to the Court of Appeal that both that paragraph 183 of Paposhvili, relaxes the test for violation of Article 3 in the case of removal of a foreign national with a medical condition and also that it does so only to a very modest extent.
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So far as the ECtHR and the Convention are concerned, the protection of Article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where “substantial grounds have been shown for believing that [the applicant], 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 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” (para. [183]). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the Article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.
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It was considered that there are a number of powerful indicators, including in the Grand Chamber’s judgment itself, which support this interpretation of paragraph 183 and the inference that the Grand Chamber only intended to make a very modest extension of the protection under Article 3 in medical cases
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Article 3 is an unqualified right with a high threshold for its application (see N v United Kingdom, para. [43], and also Paposhvili, para. [174].
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The Grand Chamber in Paposhvili sought only to “clarify” the approach set out in N v United Kingdom not to effect any major change to what had been authoritatively laid down in that case.
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The Grand Chamber at paragraph 183 in Paposhvili, as well as using the rubric “other very exceptional cases”, which itself indicates how rarely the test in Article 3 will be found to be satisfied in medical cases, emphasised in the final sentence that it was still intending to indicate that there was “a high threshold for the application of Article 3” in medical cases. This echoed the point made by the Grand Chamber in paragraph 43 of N v United Kingdom, about the high threshold for application of Article 3.
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It was true that if one read the phrase “would face a real risk … of being exposed … to a significant reduction in life expectancy” in paragraph 183 out of context, it might be taken to indicate a very wide extension of the protection of Article 3 in medical cases, since in very many such cases where a foreign national is receiving treatment at a higher level of effectiveness in the removing state than would be available in the receiving state (e.g. in the case of those suffering from AIDS) they would be able to say they would face a real risk of a significant reduction of life expectancy if they were removed. But this was not a tenable interpretation of paragraph of Paposhvili, read in its proper context. N v United Kingdom was itself a case where removal resulted in a very significant reduction in life expectancy (as was also noted in Paposhvili at paragraph 178 , in which no violation of Article 3 was found, and the Grand Chamber in Paposhvili plainly regarded that case as rightly decided. N v United Kingdom was itself a Grand Chamber judgment, decided by 14 votes to 3. It was impossible to infer that by the formula used in paragraph 178 of Paposhvili the ECtHR intended to reverse the effect of N v United Kingdom. Moreover, the Grand Chamber’s formulation in paragraph 183 requires there to be a “serious” and “rapid” decline in health resulting in intense suffering to the Article 3 standard where death is not expected, and it makes no sense to say in the context of analysis under Article 3 that a serious and rapid decline in health is not a requirement where death rather than intense suffering is the harm expected. In the Court’s view, the only tenable interpretation of paragraph read in context, was the one given above.
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The Court also considered in that regard, it was also significant that even on the extreme and exceptional facts of the Paposhvili case, where the applicant faced a likelihood of death within 6 months if removed to Georgia, the Grand Chamber did not feel able to say that it was clear that a violation of Article 3 would have occurred for that reason had he been removed. Instead, all that the Grand Chamber held was that the applicant had raised a sufficiently credible Article 3 case that it gave rise to a procedural obligation for the relevant Belgian authorities to examine that case with care and with reference to all the available evidence. The violation of Article 3 which the Grand Chamber held would have occurred if the applicant had been removed to Georgia was a violation of that procedural obligation.
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In the Court’s judgment, neither AM’s nor Mr Nowar’s claim satisfied the test in paragraph 183 of Paposhvili.
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AM’s claim failed to satisfy the test in paragraph 183 of Paposhvili because he had failed to show that there are substantial grounds to believe he faces a real risk of a serious and rapid decline in his health resulting either in intense suffering (to the Article 3 standard) or death in the near future if he was removed to Zimbabwe. He was HIV positive, but did not yet have AIDS. He had adduced no medical report which said that he was likely to die soon if removed to Zimbabwe, even if he received no treatment at all; or that he could not tolerate, without side-effects, any of the range of ARV treatments available in Zimbabwe; or that, if the only ARV treatments available to him in Zimbabwe are ones which would produce side-effects, those side-effects would be so severe as the cost of keeping him alive that they would constitute suffering at an intensity to bring his case within Article 3 according to the high threshold which applies in that regard. AM’s case was not even as strong as that of the applicant with AIDS in N v United Kingdom, which the Grand Chamber in Paposhvili had affirmed was correctly decided.
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Mr Nowar’s claim failed to satisfy the test in paragraph of Paposhvili because he too had failed to show that there are substantial grounds to believe he faced a real risk of a serious and rapid decline in his health likely to result in his death in the near future if he was removed to Jordan. The evidence was that his cancer was in full remission at the moment. It was speculative whether and when it might recur and, if it did, what Mr Nowar’s life expectancy would be. Also, he was successfully treated for his cancer previously in Jordan and there was no good reason to think the same effective treatment would not be available to him in Jordan if his cancer did recur. The Grand Chamber had affirmed in Paposhvili, and indeed had emphasised in its judgment, that a violation of Article 3 did not occur just because the care in the receiving state did not meet the same high standards as the care in the removing state. Article 3 does not impose an obligation on a removing state ensure an absence of disparities between the health service provision which it is able to provide and that available in the receiving state.
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The effect of this analysis for each appellant was that his appeal to the Court of Appeal should be dismissed and any application for an extension of the stay of his removal from the UK was likely to be dismissed as well, subject to what might happen in relation to any grant of permission to appeal to the Supreme Court in the cases.
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The Court further made it clear that it seemed to be highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage; it was however considered that these cases fell a long way short of satisfying the test in paragraph of Paposhvili and consequently the Court had some doubt whether they were ideal as vehicles for that exercise. It was also stated that where the Court of Appeal were to refuse permission to appeal, the appellants could ask the Supreme Court for permission to appeal and it might be appropriate to extend the stay of removal in their cases while that procedure was implemented.
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Conclusion:
The Court of Appeal acknowledges that Paposhvili has some significance but not much- the position currently in effect remains largely the same as per established caselaw, ie there is still “a high threshold for the application of Article 3” in medical cases.
For claimants seeking stays on removal pending a decision in the Supreme Court, it is clear that considerations on grant of such stays by the Tribunal or other Court would usually only be justified if their case would satisfy the test set out in Paposhvili at paragraph 183.