Court of Appeal: Article 3 threshold still very high after Paposhvilli and the stringent “very compelling circumstances test” in deportation cases

The real value in The Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139 (04 July 2019) lies in the Court of Appeal’s review, considerations and conclusions upon the relevant statutory provisions, Immigration Rules and caselaw as applicable to a case giving rise to both an Article 3 medical condition claim and Article 8 deportation appeal.

The basis of the Article 3 medical condition claim

PF, a Nigerian national, came to the United Kingdom in August 1990 when he was 13 years old. He was subsequnelty granted indefinite leave to remain in 2000.

PF suffers from Sickle cell disease (“SCD”), which the Court of Appeal noted is a genetic blood disorder resulting from an abnormality in the haemoglobin element in red blood cells, which is prevalent in Africa.

The Court also observed that Nigeria has the highest burden of SCD in the world: about 1m people suffer from SCD, with 150,000 births per year of babies suffering from the condition. In addition to longer term medical problems which result in a reduced life expectancy, SCD typically results in infections and attacks of pain known as “sickle cell crises”, for which pain relief and antibiotics (both prophylactic and ameliorative) are given.

Issues giving rise to the Article 8 claim

PF had British children living in the UK and a British Partner.

PF was noted to have a lengthy criminal record, including several convictions for drug offences for which he had received substantial prison sentences, the longest being 5 years 8 months’ imprisonment imposed for two conspiracies to supply Class A drugs in 2010.

Having become subject to deportation proceeds, PF’s appeal was dismissed by the First-tier Tribunal however that decision was set aside by the Upper Tribunal and remade by Upper Tribunal Judge Lindsley in a determination promulgated on 21 May 2018. Judge Lindsley allowed the appeal on the basis that PF’s removal would be in breach of both article 3 and article 8 of the ECHR.

Medical condition cases – “N” test domestic law versus “Paposhvilli test”

 As reiterated by the Court in PF(Nigeria), Article 3 may only prevent removal of a foreign national from the United Kingdom in “very exceptional circumstances”. The scope of that phrase in this context was settled so far as domestic law is concerned by the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296 (“N”). At [50], Lord Hope giving the leading speech set out the test in these circumstances, as derived from the Strasbourg authorities, 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…”.

Baroness Hale of Richmond (at [69]-[70]) and Lord Brown of Eaton-under-Heywood (at [94]) framed the test in similar terms. The test was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39 (“N (ECtHR)”). This so-called “death bed test” was considered to be an appropriate balance between the rights of the individual and the interests of the Contracting States, upon which article 3 places no obligation to alleviate disparities in state provision through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction (see, e.g., N (ECtHR) at [44])”.

The Court of Appeal in PF(Nigeria) went on to note that the ECtHR had recently revisited where this balance should lie, i.e. what should comprise “very exceptional circumstances” in this context. In Paposhvili v Belgium [2017] Imm AR 867 (“Paposhvili”) at [183], the court said:

The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in [N]… 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 in PF(Nigeria) emphasized that this was clearly in different terms from those in N, that to an extent, Paposhvilli appeared to widen the scope of “very exceptional circumstances”.

After Paposhvilli – propositions drawn from three key Court of Appeal cases

In PF(Nigeria), the Court observed that the consequences of Paposhvili for medical cases in which there is reliance on article 3 had been considered by the Court in three subsequent cases:

• AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64; [2018] 1 WLR 2933 (“AM (Zimbabwe)”),

• SL (St Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894 (“SL (St Lucia)”) and

• MM (Malawi) and MK (Malawi) v Secretary of State for the Home Department [2018] EWCA Civ 2482 (“(MM Malawi)”).

The relevant principles were set out in the judgment of Sales LJ in AM (Zimbabwe), Those principles were endorsed in the other two cases.

At paragraph 16, PF(Nigeria) sets out following propositions to be drawn from the cases:

i) 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 this court, and indeed all tribunals and courts in this jurisdiction, subject only to the Supreme Court using its power to overrule it (see AM (Zimbabwe) at [30], MM (Malawi) at [9(i)] and the aptly entitled UT judgment in EA and Others (article 3 medical cases – Paposhvili not applicable) [2017] UKUT 445 (IAC)).

ii) Paposhvili at [183] relaxes the test for violation of article 3 in the case of removal of a foreign national with a medical condition (see AM (Zimbabwe) at [37]-[38], and MM (Malawi) at [9(i)]). Having quoted the relevant part of [183] of Paposhvili, Sales LJ put it thus in AM (Zimbabwe) at [38]:

“This means that where the applicant faces a real risk of 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 that passage, Sales LJ was expressly paraphrasing Paposhvili, not seeking to redefine it in any way.

iii) Whilst Paposhvili marks a 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 (see AM (Zimbabwe) at [41]-[42], and MM (Malawi) at [9(iii)]).

iv) There is a switching burden of proof (see AM (Zimbabwe) at [16], and MM (Malawi) at [9(iv)]). As Sales LJ put it 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 v United Kingdom (1989) 11 EHRR 439 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.”

Article 3 medical condition cases and Article 8- the focus and relevant criteria are very different

The Court stated that as explained in SL (St Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894at [25], although they each seek to translate the value of human dignity and freedom (which is the very heart of the ECHR) into specific rights of individuals and the same factual matrix may coincidentally engage both article 3 and article 8, the focus of and relevant criteria for the two provisions are very different.

In particular, it is wrong in principle to consider that an article 3 claim can be treated in the alternative as an article 8 claim with the latter simply having a “lower” threshold. The threshold criteria are essentially different in nature, not (or, at least, not only) degree.

Relevant caselaw: SL (St Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894, paragraphs 22 to 28:

“27:However, I am entirely unpersuaded that Paposhvili has any impact on the approach to article 8 claims. As I have described, it concerns the threshold of severity for article 3 claims; and, at least to an extent, as accepted in AM (Zimbabwe), it appears to have altered the European test for such threshold. However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition. As I have indicated and as GS (India) emphasises, article 8 claims have a different focus and are based upon entirely different criteria. In particular, article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8. The only relevance to article 8 of such an absence will be where that is an additional factor in the balance with other factors which themselves engage article 8 (see (MM (Zimbabwe) at [23] per Sales LJ). Where an individual has a medical condition for which he has the benefit of treatment in this country, but such treatment may not be available in the country to which he may be removed, where (as here) article 3 is not engaged, then the position is as it was before Paposhvili, i.e. the fact that a person is receiving treatment here which is not available in the country of return may be a factor in the proportionality balancing exercise but that factor cannot by itself give rise to a breach of article 8. Indeed, it has been said that, in striking that balance, only the most compelling humanitarian considerations are likely to prevail over legitimate aims of immigration control (see Razgar at [59] per Baroness Hale).

28.Therefore, in my firm view, the approach set out in MM (Zimbabwe) and GS (India) is unaltered by Paposhvili; and is still appropriate. I do not consider the contrary is arguable”.

Deportation – relevant caselaw

The caselaw cited by the Court in PF(Nigeria) :

• Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982

• (KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273

• Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799

• Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 662

• NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662; [2017] 1 WLR 207

• (SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998

• (MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544

Section 117C(6) and the “very compelling circumstances” stringent test

In PF(Nigeria), the Court of Appeal stated as follows:

“33.Turning to section 117C(6), for offenders who are sentenced to at least four years, or who fall outside the exceptions, the new statutory provisions reflect MF (Nigeria), by adopting the wording “very compelling circumstances” instead of the previous “exceptional circumstances”. That is clearly a more stringent test than the “unduly harsh” test of section 117C(5). At [22] in KO, Lord Carnwath referred to section 117C(6) requiring, “in addition” to the section 117C(5) criteria, “very compelling circumstances”. In Secretary of State for the Home Department v JG (Jamaica) [2019] EWCA Civ 982 at [16], having reviewed the relevant authorities, Underhill LJ referred to the need to show that the effect on the relevant child or partner would be “extra unduly harsh” (emphasis in the original). However, as Mr Dunlop submitted, that formulation risks masking a difference in approach required by section 117C(5) and (6) respectively: whilst KO held that the former requires an exclusive focus on the effects of deportation on the relevant child or partner, section 117C(6) requires those effects to be balanced against the section 117C(1) public interest in deporting foreign nationals. Under section 117C(6), the public interest is back in play

34.That does not mean that consideration of “undue harshness” may not be helpful even where section 117C(6) applies. As to the approach to section 117C(6), in NA (Pakistan) at [37], Jackson LJ said this:

“… [I]t will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are ‘very compelling circumstances, over and above those described in Exceptions 1 and 2’ as is required under section 117C(6). It will then be necessary to look to see whether any of the factors falling within the Exceptions 1 and 2 are of such force, whether by themselves or taken in conjunction with any other relevant factors not covered by the circumstances described in Exceptions 1 and 2, as to satisfy the test in section 117C(6).”

Public interest consideration in sections 117A-117D and Paragraph 398 to 399A of the Immigration Rules:

As regards Sections 117A-117D of the 2002 Act and Paragraph 398 to 399A of the Immigration Rules, PF(Nigeria) summarised as follows:

“36.The statutory provisions in sections 117A-117D are, unlike the Immigration Rules (see Ali at [17]), law rather than mere policy. However, both section 117C and the relevant Immigration Rules set out policy, in the sense that they provide a general assessment of the proportionality exercise that has to be performed under article 8(2) where there is a public interest in deporting a foreign criminal but countervailing article 8 factors. The force of the assessment in section 117C is, of course, the greater because it directly reflects the will of Parliament. The statutory provisions thus provide a “particularly strong statement of public policy” (NA (Pakistan) at [22]), such that “great weight” should generally be given to it and cases in which that public interest will be outweighed, other than those specified in the statutory provisions and Rules themselves, “are likely to be a very small minority (particular in non-settled cases)” (Ali at [38]), i.e. will be rare (NA (Pakistan) at [33]).

37.But the required, heavily structured analysis does not eradicate all judgment on the part of the decision-maker and, in its turn, the court or tribunal on any challenge to that decision-maker’s decision. It is self-evident that relative human rights (such as the right to respect for family and private life under article 8) can only ultimately be considered on the facts of the particular case. The structured approach towards the article 8(2) proportionality balancing exercise required by the 2002 Act and the Immigration Rules does not in itself determine the outcome of the assessment required to be made in an individual case.

38.Therefore, whether an exception in paragraph 399 or 399A applies is dependent upon questions that require case-specific evaluation, such as whether in all of the circumstances it would not be reasonable for a child to leave the United Kingdom or whether in all of the circumstances there are insurmountable obstacles to family life outside the United Kingdom.

39.More importantly for the purposes of this appeal, where an offender has been sentenced to at least four years’ imprisonment, or otherwise falls outside the paragraph 399 and 399A exceptions, by section 117C(6) and paragraph 398 of the Rules, the decision-maker, court or tribunal entrusted with the task must still consider and make an assessment of whether there are “very compelling circumstances” that justify a departure from the general rule that such offenders should be deported in the public interest. That requires the decision-maker to take into account, not only that general assessment (and give it the weight appropriate to such an assessment made by Parliament), but also the facts and circumstances of the particular case which are not – indeed, cannot – be taken into account in any general assessment”.

What the Court of Appeal had to consider:

As PF’s appeal had been allowed on both Article 3 and 8 grounds by Upper Tribunal Immigration Judge Lindsley in May 2018, the Secretary of State’s appeal focused on the following grounds before the Court of Appeal:

• In her determination of 21 May 2018, Judge Lindsley erred in applying the test in Paposhvili (rather than the test in N) as the threshold of severity under article 3 of the ECHR.

• In any event, in applying the Paposhvili test, Judge Lindsley erred: i)by making perverse and/or an inadequately reasoned findings that on return (a) PF would “not be likely to find the medical facilities to provide the heavy duty morphine pain relief that he needs”, and (b)PF’s death within five years would be “predictable”; and ii)by failing to consider or determine whether PF’s would suffer “a serious, rapid and irreversible decline” in his health, if he were to be deported to Nigeria.

• Judge Lindsley erred in finding that deportation would be a disproportionate interference with the article 8 rights of PF and his family.

Court of Appeal’s considerations and conclusions on the Article 3 medical condition claim

• The Court noted that it had made it clear from the onset that if the case did not satisfy the criteria in N but satisfied those in Paposhvili, then that may be a reason for the Court of Appeal granting permission to appeal to the Supreme Court, or at least staying the appeal pending the outcome of AM (Zimbabwe) in the Supreme Court to be heard in December 2019, in which the article 3 threshold would presumably be tested as a matter of domestic law.

• The Secretary of State was noted to have argued that Judge Lindsley had misunderstood AM (Zimbabwe), rejecting the Secretary of State’s submission based on that case that the Upper Tribunal was bound by N and the new guidance on the article 3 threshold in medical cases given by the ECtHR in Paposhvili was relevant only in the context of whether an appeal, although inevitably refused on the basis of the criteria in N, should be given permission to appeal to give the Supreme Court an opportunity to consider overruling N so far as domestic law is concerned.

• The Court of Appeal concluded that Judge Lindsley appeared to have misunderstood the principle of stare decisis, as emphasised in AM (Zimbabwe) at [30] and MM (Malawi) at [9(i)], which requires all courts and tribunals to follow the House of Lords case of N unless and until it is overruled by the Supreme Court. The judge found that, if deported to Nigeria, PF did not face the risk of imminent death; and thus the criteria in N were not satisfied. On that basis, she was bound to refuse the PF’s appeal on article 3 grounds. She erred in law in not so doing. The error was clearly material so far as the article 3 claim was concerned.

• It was noted that Judge Lindsley had concluded that the Paposhvili test was satisfied in this case, however the Secretary of State submitted that she erred in making that finding. Judge Lindsley had found that PF would “not be likely to find the medical facilities to provide the heavy duty morphine pain relief that he needs”. The Court of Appeal concluded that the evidence that morphine is widely available in Nigeria is uncontroversial, in the sense that, although there is general evidence about the poor state of healthcare facilities in Nigeria, there is nothing controverting the evidence that morphine is generally available there. It was also noted that it had been accepted on PF’s before the Court of Appeal that it was generally available.

• It was further noted that the Secretary of State took issue with Judge Lindsley finding “there to be a real risk of death to the Respondent within a five year period” and that his death within that period was “predictable”. The Court of Appeal concluded that particularly given the high infant mortality rate for those suffering from SCD in Africa and the fact that the five-year life expectancy was merely a median figure (i.e. the value separating the higher half of a data set from the lower half), it was quite impossible to draw the inference drawn by Judge Lindsley from the evidence available to her. General references to (e.g.) the health care sector in Nigeria being “a shambles” did not assist on this specific point. The most that could be said on the evidence, was that, if he were to be deported, PF’s life expectancy would be reduced to some, probably substantial extent.

• It was contended on behalf of the Secretary of State that Judge Lindsley did not apply the correct Paposhvili test, which requires that, as the result of an absence of, or lack of access to, appropriate treatment on return, there is a risk of a “serious, rapid and irreversible” decline in the health of the deportee which causes intense suffering. It was submitted that Judge Lindsley did not consider – and certainly did not find – that there would be “serious, rapid and irreversible” decline in the health of the PF on return to Nigeria. Although the sickle cell crises and infections PF will continue to suffer may become more frequent and more painful, there was no evidence that his underlying condition would decline.

• The Court stated that the question for it under Paposhvili was whether Judge Lindsley was wrong to conclude that, if PF were to be deported to Nigeria, due to an absence or the practical unavailability of appropriate treatment, he would suffer a serious, rapid and irreversible decline in his health resulting in intense suffering. In the Court’s judgment, on the evidence before Judge Lindsley (and the evidence now before the Court), that was not a finding that could properly be made. The Court agreed with Judge Lindsley that this was not a case where, upon deportation, death would occur within a short time. Although it was noted morphine and antibiotics are available to treat the inevitable sickle cell crises and infections that PF would continue to have in Nigeria, it was clear from the evidence that health facilities in Nigeria are generally not as good as in the United Kingdom, and, in particular, the facilities for the treatment of SCD are not so good but that did not make removal to Nigeria of someone who suffers from SCD a breach of article 3.

• The Court stated that the article 3 threshold is still very high; there was no evidence that PF would suffer anything like the serious, rapid and irreversible decline in his health resulting in intense suffering that is required by Paposhvili. That was so, whatever the outcome of AM (Zimbabwe) in the Supreme Court may be. Serious and painful as PF’s condition clearly was, the case fell far short of the article 3 threshold, however it was put.

• The Court of Appeal therefore allowed the Secretary of State’s appeal on the article 3 ground and refused to grant permission to appeal on the issue to the Supreme Court or issue any stay.

Court of Appeal’s considerations and conclusions on the Article 8 claim- right to private and family life

• The Secretary of State contended that Judge Lindsley had no basis for concluding that there were “very compelling circumstances” in the case, such that PF’s deportation would breach the article 8 rights of him and/or his children. It was noted that she found that “the medical consequences of his deportation” as she had found in relation to the article 3 ground in themselves would have a disproportionate effect on PF’s private life.

• The Court of Appeal concluded, in making that stark conclusion, Judge Lindsley fell into the error identified in GS (India) and SL (St Lucia), by in substance treating the article 8 claim as an article 3 claim with simply a lower threshold.

• It was also observed that Judge Lindsley found that it would be more than unduly harsh for PF’s children to face his illness and death within five years, such that his deportation would have a disproportionate effect on their family life. Although she also referred to the similar effects on MP, the Partner, the judge was clear that she considered only the effects on the children were “over and above harsh”, and thus satisfied the section 117C(6) test. The Court stated that although it accepted that section 117C(6) requires an assessment of factors in respect of which the judge below had a wide margin of appreciation, Judge Lindsley had erred in finding article 8 would be breached if PF were deported.

• Whilst PF and his children have close family ties, that family life was inevitably “limited” given his periods in custody which were about 12 years in total.

• Although PF’s deportation would have a real and damaging impact on the children, that was a common consequence of the deportation of a person who has children in this country which was not exceptional.

• The separation of children from a deported parent is an unfortunate but usual consequence of a deportation order. The degree of upset that is contemplated for the children is unfortunate but clearly not extraordinary; and, in the Court’s view, comes nowhere near meeting the unduly harsh test even on the exclusively child-centred approach required by KO, let alone the more stringent “very compelling circumstances” test in section 117C(6) of the 2002 Act.

• It was difficult to see how PF’s suffering more serious and/or more frequent sickle cell crises in Nigeria could make deportation “over and above” unduly harsh for the children. The evidence suggested that PF’s life expectancy would be reduced if he was removed to Nigeria; but it did not support a finding that PF would die within the next five years. The fact that the children would, at some stage, have to face the death of their father abroad, again, falls far short of being unduly harsh, let alone a very compelling circumstance.

• The evidence fell far short of being capable of amounting to even “unduly harsh” for the purposes of section 117C(5) of the 2002 Act let alone “very compelling circumstances” for the purposes of section 117C(6). PF had committed several very serious offences, and in the Court’s view, the public interest in deporting him as expressed in the statutory provisions and the Immigration Rules overwhelmed the rights and interests of PF and his family.

Comment

PF ultimately did not succeed in his Article 3 and Article 8 claim before the Court of Appeal.

PF(Nigeria ) confirms that the Supreme Court has given permission to appeal in AM (Zimbabwe), and the hearing has been set down for December 2019.

Whether or not the Court in PF(Nigeria) was profoundly moved in light of PF’s serious medical condition ( they expressed “considerable sympathy” within their judgement), on the basis of the test in “N”, since 2005, Judges have been expected in practice to routinely adopt an absolute cold approach when making decisions based on Article 3 medical condition cases. Some Immigration Judges, unable to bear the legal straight jacket that the test entails, have allowed themselves to take a more liberal stance, grasping with both hands the apparent reprieve seemingly presented by the Paposhvilli test, only to have their knuckles rapped by higher court judges such as happened in PF(Nigeria).

It is only a few months to December and hopefully soon thereafter, the Supreme Court will bring in  some much needed clarity to the two competing tests which are currently plaguing Tribunal Judges.

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