Not yet time for Supreme Court to revisit criteria in Article 3 medical condition cases says Court of Appeal

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018) as recently decided in the Court of Appeal, is  largely a follow up and conclusion of that Court’s considerations following remittal of MM’s case to the Upper Tribunal as per MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018).

A blog post published following MM(Malawi) No.1 in the Court of appeal, Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal, summaries the applicable two tests currently in tension on Article 3 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) No.1 observed earlier this year 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.”

In MM(Malawi) No.2, the Court of Appeal summarised as follows in relation to the effect of AM(Zimbabwe):

  • Despite the guidance given in Paposhvili, as a result of the principle of stare decisis, i.e. the usual rules of precedent in this jurisdiction, the test in N remains binding on the Court of Appeal and indeed all tribunals and courts in this jurisdiction, subject only to the Supreme Court using its power to overrule it.
  • Paposhvili at paragraph 183 relaxes the test for violation of article 3 in the case of removal of a foreign national with a medical condition (see [37]). As Sales LJ put it at [38] in AM(Zimbabwe): “… [T]he 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.”
  • However, whilst acknowledging that relaxation of the test, Sales LJ considered “it does so only to a very modest extent”. The article 3 threshold in medical cases remains high.
  • In respect of the correct approach and burden of proof, Sales LJ said this (at [16]) in AM(Zimbabwe): “It is common ground that 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: see, e.g., [Soering] at [91], which is reflected in the formulations in Paposhvili at [173] and [183]…. In Paposhvili, at [186]-[187]…, the Grand Chamber of the ECtHR has given 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.”

 

MM(Malawi) No. 2 in the Court of Appeal- Article 3 medical condition case:

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018)  involved two appeals concerning the protection of article 3 against removal from the United Kingdom in cases where it was said that an absence of, or lack of access to, medical treatment in the receiving state will result in a decline in health of the foreign national it is proposed to return.

Both MM and MV conceded that (i) the test for article 3 medical cases set out in N as explained in AM (Zimbabwe) was binding on the Court of Appeal, and (ii) none of them was able to satisfy that test. However, they submitted that, unlike the individual cases in AM (Zimbabwe), they each satisfied the test in Paposhvili; and the Court of Appeal, whilst bound to refuse their appeals, should give permission to appeal to the Supreme Court to enable that court to reconsider N in the light of Paposhvili.

Upon the Upper Tribunal considering MM’s appeal in October 2018 following remittal from the Court of Appeal, the Upper Tribunal held in essence that the form of ARV treatment required by MM, who was HIV positive, was available, appropriate, affordable and accessible in Malawi.  ARV therapy in Malawi is free in public health facilities and subsidised in private health facilities. The Upper Tribunal therefore concluded that there was no real risk that returning to Malawi would cause a decline in MM’s physical health. Her life expectancy would not be affected . Her mental health condition would be managed as it is in the UK. The result was that the Upper Tribunal concluded that MM’s appeal would fail even under the Paposhvilli test.

Upon reaching the Court of Appeal, that Court observed that it was common ground that the appeal would have no prospect of success before it, because MM could not satisfy the criteria in N which the Court was bound to apply. The only issue for the court was whether there was some other compelling reason to hear the appeal, namely that, although not satisfying the criteria in N, MM satisfied the criteria in Paposhvili; and consequently the Court should grant permission to appeal and refuse the appeal, but grant permission to appeal to the Supreme Court or, at least, give MM an opportunity and perhaps even encouragement to seek such permission from that court.

In response to the several arguments put forward on behalf of MM, some described by the Court as “ courageous submissions”, the Court of Appeal concluded as follows in summary:

  • The questions posed on MM’s behalf had been answered and sufficient guidance given in AM (Zimbabwe) which, although MM’s Counsel did not concede that it was correct, accepted was binding on the Court of Appeal. The Court made it clear that , “unless and until the Supreme Court holds otherwise, the domestic courts are bound to follow N as explained in AM (Zimbabwe). If a particular therapy is unavailable in the receiving state, then that may be sufficient to satisfy the criteria in N and/or Paposhvili; but that will always be a fact-specific question”.
  • The Court did not consider that there were any ground upon which the factual findings of the Tribunal were arguably challengeable. In those circumstances, its conclusion that there was no real risk that returning to Malawi would cause a decline in MM’s health or any reduction in her life expectancy – and thus no real prospect of satisfying the Paposhvili criteria – was unimpeachable. The Court of Appeal refused permission to appeal.

 

MV (Sri Lanka)- Article 3 suicide risk case:

At paragraph 22 of their judgment, the Court noted as regards MM No. 2, that the Upper Tribunal, “heard the matter on 8 October 2018; and I am grateful for their prompt determination promulgated on 12 October 2018, which enabled the application in this court to be heard with the appeal in MV (Sri Lanka) which raises similar issues”.

In support of his claims, MV relied upon a report of a consultant psychiatrist. On the basis of MV’s reportage, he diagnosed him as suffering from PTSD and severe secondary depression. At that stage, MV was being treated by his doctor with low dose antidepressants. He had not been referred to a psychiatrist. The psychiatrist considered MV should be prescribed different antidepressant drug therapy, and also referred for guided psychotherapy. If he were returned to Sri Lanka, it was said that drug therapy would be available, but psychotherapy would not. It was considered that MV was not currently at suicide risk, because his aunt managed his medication and he lacked all motivation; but the risk would definitely be increased if he did not have such support.

Applying the guidance and criteria in in J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 and Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362; [2009] HRLR 22, the First Tier Tribunal Judge, dismissing the appeal held that the risk of suicide would not place the UK in breach of article 3 if it was to return MV to Sri Lanka. Among other reasons it was found that antidepressant medication would be available in Sri Lanka, there was no evidence that MV had received psychotherapy in the UK and that MV would not be alone on arrival in Sri Lanka, but rather his family would be there for him.

The Upper Tribunal endorsed the First Tier Tribunal’s decision holding that case was not so severe as to amount to a breach of article 3 on the basis of a risk of suicide.

Permission to appeal to the Court of Appeal was given on the ground that the First Tier Tribunal and Upper Tribunal had erred in applying the criteria in N rather than those in Paposhvili . It was stated that it was possible that the evidence did not meet that reduced threshold; but it was considered that that was a matter which should be considered by the full court. The grant of permission also stated that: “It seems to me that it is seriously arguable that applying the less severe test to article 3 might on the evidence available have caused the FtT and the UT to reach a different result.”

The Court of Appeal considered and concluded as below in MV:

  • It was accepted by Counsel for MV, that N as explained in AM (Zimbabwe) was binding on the Court of Appeal , and MV could not satisfy its criteria. The appeal therefore fell to be dismissed. The real issue was whether, because MV satisfies the criteria in Paposhvili, his case might be an appropriate vehicle for the Supreme Court to revisit the criteria in article 3 medical cases.
  • It was further noted that it was submitted on the Appellants’ behalf that Sales LJ in AM (Zimbabwe) had misconstrued paragraph 183 of Paposhvili, by reading it as requiring any “significant reduction in life expectancy” to be linked to exposure “to a serious, rapid and irreversible decline in [the applicant’s] state of health…”.  Properly read, if there was a risk of a significant reduction in life expectancy as a result of removal, it was submitted that that satisfied the criteria in that paragraph. Although Counsel for the Appellant accepted that AM (Zimbabwe) was binding on the court, he submitted MV ought to be allowed an opportunity to argue before the Supreme Court that the construction adopted by the Court of Appeal in AM (Zimbabwe) was wrong.
  • The Court of Appeal however stated that it saw difficulties in the construction suggested on behalf of the Appellant which appeared to emasculate the alternative limb expounded in D and N and endorsed in Paposhvili, i.e. that there would be an imminent risk of dying. The Court however stated that it was not suggesting that the Appellant’s favoured construction was fanciful or even unarguable.
  • The Court’s position however was that it did not consider that it should give permission to appeal to the Supreme Court (or, indeed, give any encouragement to MV to apply to that court for permission) in his case because of its facts.
  • It was observed that Counsel for MV based his submissions on both limbs of Paposhvili, namely that removal of MV to Sri Lanka would result in (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering and (ii) a significant reduction in life expectancy as a result of an increased risk of suicide. It was considered however that the evidence upon which the submission was based, in respect of each limb, was restricted to that of the psychiatrist. It was very thin.
  • It was noted that the psychiatrist considered that MV’s depression was “severe”, and that his PTSD needed psychotherapeutic intervention which he had not received to the date of the report. At the time of the report, MV was on low dose antidepressants and no psychotherapy. There was no evidence as to whether he had subsequently had his drug regime changed, or undergone any form of psychotherapy; or, if so, whether they have been beneficial. Whilst the report indicated that MV’s mental health symptoms would worsen if he were to be removed to Sri Lanka, the psychiatrist did not appear to consider the position if (as the tribunal found) he would be at no objective risk in Sri Lanka if returned. In the Court’s view, there was no evidential basis for the proposition that, if he were to be returned, excluding the risk of suicide, he would suffer a serious, rapid and irreversible decline in his state of health resulting in intense suffering. Nothing in the psychiatrist report suggested that to be the case. There was no evidence as to the potential effect of an increased drug regime (available both here and in Sri Lanka) upon MV’s symptoms and state of mind.
  • The First Tier Tribunal found that any increase in risk would be insufficient to meet the test in J. In the Court’s view, the available evidence fell far short of showing any real risk that MV’s life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka.
  • The Court of Appeal therefore refused MV’s appeal and also permission to appeal to the Supreme Court.
  • The Court made it clear that even if the Supreme Court were to revisit the criteria in N in the light of Paposhvili, that would not assist MV whose application for leave on article 3 grounds, on the evidence before the Court, would be bound to fail in any event.

 

Conclusion

There now appears to be an element of circularity in the Court of Appeal’s recent decisions on Article 3 medical condition cases.

Earlier this year the Court of Appeal concluded in MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), at paragraph 25 that:

“In the meantime, I shall formally adjourn the application for permission to appeal to this court. In terms of a return date, there are currently three other appeals in which the difference between the criteria in N and those in Paposhvili are in issue, that are listed for Tuesday 30 October 2018 with a time estimate of 2-3 days. I propose that this application for permission to appeal is provisionally listed with those appeals, on a rolled-up basis. The precise time estimate can be considered later, but I am confident that the current estimate of 2-3 days will not be exceeded. Whilst appreciating the enormous workload on the Upper Tribunal, for obvious reasons it would be extremely helpful if the Upper Tribunal were able to determine the question out to them in time for that hearing”.

Apart from acknowledging at paragraph 22 in MM(Malawi) No.2, that the case was to be heard with the appeal in MV which raised similar issues, it is not altogether clear whether the three previously mentioned appeals have now been heard separately or if the Court’s considerations in MM and MV constitute the sum of their resolution of the pressing issues regarding the difference between the criteria in N and those in Paposhvili.

Whilst it may be considered that a suitable case(s) has not yet arisen justifying grant of permission to the Supreme Court, the Court of Appeal appears to be postponing the inevitable. The longer it continues to dither and reiterate the binding nature of its previous decisions upon itself, one case after the other, the more the increase in cases that will continue to come before it seeking to edge closer to the door of the Supreme Court.

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