After Kiarie and Byndloss: Applicant has a second bite of the cherry in a Section 94(B) certification case

QR (Pakistan), R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1413 (21 June 2018) addresses several important strands arising out of a challenge in the Court of Appeal to a Section 94(B) Certificate.



Interestingly, in QR(Pakistan), the Court of Appeal granted permission for judicial review in a case where the Applicant had prior to his deportation in February 2017, unsuccessfully mounted a challenge in relation to a previously issued Section 94(B) certificate. After his deportation and following the publication Kiarie and Byndloss in June 2017 in the Supreme Court, well out of time, the Applicant sought to resurrect his previous claim by lodgement of further judicial proceedings in September 2017 whilst abroad.


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EEA nationals and deportation: Inapplicability of Kiarie and Byndloss effect to take sting out of Regulation 33 Certification

Quietly but determinedly the UK Government continues to detain EEA nationals subject to deportation. Some are deported, not on the basis of any crime committed in the UK but by reliance upon a previous adverse criminal history in the country of origin. Removal directions follow shortly after detention, even if the EEA national has a pending appeal yet to be heard in the immigration Tribunal.



In Wandzel, R (On the Application Of) v Secretary of State for the Home Department (Rev 1) [2018] EWHC 1371 (Admin), the Claimant, a Polish EEA national subject to deportation, sought to argue that following the decision of the Supreme Court in Kiarie and Byndloss, the Regulation 33 certification applied to his case was unlawful.


On the facts of his case, the argument failed to properly lift off the ground with the Administrative Court seemingly making short shrift of them, holding that certification was not unlawful. 


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Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal

Following MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), it has become increasingly  clear that there are now two applicable  tests in medical condition cases:


    • the test in article 3 medical cases as expounded in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death

    •  the test in article 3 medical cases as per the criteria in Paposhvili v Belgium [2017] Imm AR 867,ie the “Paposhvili test”.  The Court in MM(Malawi) observed that the effect of Paposhvili upon existing jurisprudence was considered in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, at paragraph 38:   “So far as the [European Court of Human Rights] and the [ECHR] 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’ (paragraph 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.”


A previous blog post explores the Court of Appeal ‘s decision in AM (Zimbabwe): A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili


It is therefore possible to argue that a claimant satisfies the criteria in Paposhvili but not that in N.

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