Following the decision of the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (29 April 2020), it is of course now time for the Secretary of State to cease the barely concealed pretence of nearly 4years: a pretence that  the decision of the Grand Chamber of the European Court of Human Rights (“the ECtHR”) in Paposhvili v Belgium [2017] Imm AR 867 is a legal aberration.

The perfected art of standard refusal decisions that deliberately neglect to factor in the relevance and effect of Paposhvili in medical condition cases should now be a thing of the past.

The maintenance and publication of Home Office Guidance (Human rights claims on medical grounds, currently dated 20 May 2014) for Home Office decision- makers, which refuses to acknowledge the very existence of  Paposhvili, should be seen no more.

The glaring reality has always been that Paposhvili is a judgement to be reckoned with. This, the Secretary of State has been refusing to accept.

Many an appeal has been allowed by the First Tier Tribunal since Paposhvili was published( December 2016), only to be  overturned by the Upper Tribunal on appeal by the Secretary of State placing reliance on the case of “N”.

Just as much as the Secretary of State has remained smugly and fairly confident for well over a decade that the case of “N” was here to stay, so too must there be a constant reminder  of the new legal heavyweight in town.

For an appeal that has been acknowledged to raise “the most controversial questions which the law of human rights can generate”, the judgement of the Supreme Court is with a good measure of relief, welcomingly short, short enough to retain an interest sufficient enough to enable a full read of the decision.  

Rising however beyond the current legal high and to be expected all matters considered following AM(Zimbabwe), will be the usual lengthy exposition from the Upper Tribunal or nudge in from the Court of Appeal, hopefully  not with a view to watering down the practical effect of Paposhvili but with a view to bravely and permanently throwing off the remnants of all and any remaining invisible shackles that the case of “N” had bound the lower courts in for nearly two decades.

The cases of D and N – setting  of the high threshold test in Article 3 in medical condition cases

In brief, the applicant in the D v United Kingdom (1997) 24 EHRR 423 was about to die of AIDS; and the essence of the decision was not the absence of treatment on St Kitts but the inhumanity of, in effect, pulling a man off his deathbed.

N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] UKHL 31, [2005] 2 AC 296, related to a claimant who had been diagnosed with HIV and Lady Hale concluded as follows in the House of Lords:

“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 appellant in the N case in the House of Lords then became the applicant in the N case in the ECtHR – N v United Kingdom (2008) 47 EHRR 39 and again she relied on article 3.

By a majority, her application was rejected. The Grand Chamber observed that, since the judgment in the D case 11 years previously, the court had never held that removal of an alien would violate the article on grounds of ill-health;  that in the D case the applicant had appeared to be close to death and that a reduction in life expectancy in the event of removal had never in itself been held to amount to a violation of article 3; that, although there might be “other very exceptional cases in which the humanitarian considerations are equally compelling”, the high threshold for violation set in the D case should be maintained; and  much as Lord Brown had suggested, that an obligation to provide free and unlimited treatment for a serious condition, if of a standard unmet in the applicant’s country of origin, would place too great a burden on contracting states.

Paposhvili and the” new criterion”

Following analysis of the decision in the D case and of its own decision in the N case, the Grand Chamber in Paposhvili expressed the view in para 182 that the approach hitherto adopted should be “clarified”.  The  Grand Chamber proceeded as follows:

“183.  The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 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 did AM ask the Supreme Court to do?

AM, a Zimbabwean foreign national criminal subject to deportation and living with HIV, relied on Article 3 of the Convention which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

At his appeal hearing before the Tribunal, AM relied on a report from a nurse as well as a report from a consultant physician in the same clinic who had been treating him for four years. The consultant reported that the treatment of AM with Eviplera was continuing satisfactorily and further clarified: “However, there is no cure for HIV at present. It is vital for individuals on antiretroviral therapy to be maintained on lifelong HIV treatment. Should this gentleman stop his treatment or be denied access to his treatment, his HIV viral load will rise, his CD4 count will decrease and he will be at risk of developing opportunistic infections, opportunistic cancers and premature death. It is vital for individuals living with HIV to maintain regular specialist follow up, and access to effective antiretroviral therapy.”

During his hearing before the First Tier Tribunal, reliance was placed upon a country information report referable to Zimbabwe which stated that the list of ART medications available there did not include Eviplera, which AM was taking, which had not given rise to significant side-effects and had enabled his CD4 blood count to increase and his HIV viral load to become undetectable.

AM argued if that he was deported to Zimbabwe, he would be unable to access the medication in the UK which prevents his relapse into full-blown AIDS.

AM sought an expanded interpretation of Article 3 in the context of a situation such as his own  and asked the Supreme Court to depart from the decision in N  by reference to the judgment in the Paposhvili case and to remit his application for rehearing by reference to Article 3

How did the Supreme Court approach AM’s appeal?

The Supreme Court  began by observing in reference to the  exposition at paragraph 183 of Paposhvilli  that it was hard to think that it was encompassed by the reference in the N case to “other very exceptional cases” because any application of the criterion in the quoted passage would be likely to have led to a contrary conclusion in the N case itself.

As regards addressing the words “although not at imminent risk of dying” in the first long sentence of paragraph 183 in Paposhvili, the  Supreme Court stated that the words refer to the imminent risk of death in the returning state. The Supreme Court concluded that the Grand Chamber was thereby explaining that, in cases of resistance to return by reference to ill-health, article 3 might extend to a situation other than that exemplified by  D case, in which there was an imminent risk of death in the returning state.

(a)Procedural requirements in Article 3:

Summarizing on the effect of Paposhvili, the Supreme Court in AM(Zimbabwe) stated as follows [23]:

“Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of article 3 in that regard. It held

(a)   in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;

(b)    in para 187 that, where such evidence was adduced in support of an application under article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state;

(c)    in para 189 that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to article 3;

(d)  in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and

(e)  in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant”.

The Supreme Court noted that it was the failure of Belgium to discharge the suggested procedural obligations which precipitated the Grand Chamber’s conclusion in the Paposhvili case that deportation of the applicant to Georgia would have violated his rights under article 3. The Court observed  that it seemed that the Grand Chamber treated the doctor’s evidence as “capable of demonstrating that there [were] substantial grounds for believing” that deportation would expose him to a real risk of treatment contrary to article 3. Belgium’s procedural obligations were therefore engaged but not discharged.

(b)Criticism of the Court of Appeal’s approach in AM(Zimbabwe):

The Supreme Court noted the following  regarding  the decision of the Court of Appeal in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64:

• the Court of Appeal’s view, that the decision in Paposhvili reflected only a “very modest” extension of the protection against return given by article 3 in cases of ill-health.
• that the Court of Appeal fastened in para 39(iv) upon the Grand Chamber’s questionable choice of language that the previous approach to such cases needed only to be “clarified”.
• that the Court of Appeal buttressed its restrictive view of the effect of the decision by claiming in para 39(ii) that the Grand Chamber had noted that there had been no violation of article 3 in the N case and in para 40 that the Grand Chamber had “plainly regarded that case as rightly decided”.

The Supreme Court was however at pains to point out that a careful reader of paragraphs 178 to 183 of the judgment in the Paposhvili case might find it hard to agree with the Court of Appeal in this respect. Although the Grand Chamber noted that it had been held in the N case there had been no violation of article 3, there was however no express agreement on its part with that conclusion and, subject to the precise meaning of the new criterion in para 183 of the judgment, its application to the facts of the N case would suggest a violation.

The Supreme Court further observed that the Court of Appeal interpreted the new criterion in para 183 of the judgment in the Paposhvili case, at para 38 as follows:

“This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (ie 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 (ie 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.”

The Supreme Court concluded that there was validity as to the advanced criticism of the Court of Appeal’s interpretation of the new criterion.

In its first sentence the reference by the Grand Chamber to “a significant reduction in life expectancy” was interpreted as “death within a short time”. But then, in the second sentence, the interpretation developed into the “imminence … of … death”; and this was achieved by attributing the words “rapid … decline” to life expectancy when, as written, they apply only to “intense suffering”.  The Supreme Court concluded that the result was that in two sentences a significant reduction in life expectancy had become translated as the imminence of death and this was too much of a leap.

(c)Meaning of “significant” reduction in life expectancy in para 183 of Paposhvili:

In the Supreme Court’s view, the word “significant” in context meant substantial.

Were a reduction in life expectancy to be less than substantial, it would not attain the minimum level of severity which article 3 requires.

A reduction in life expectancy to death in the near future is more likely to be significant than any other reduction.

(d)It is for the claimant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated:

The Supreme Court emphasized the the Grand Chamber’s pronouncements in Paposhvili about the procedural requirements of article 3, could on no view be regarded as mere clarification of what the court had previously said.

Pending the giving of judgement in Savran in the Grand Chamber, the Supreme Court made the following observations regarding the procedural requirements:

• The basic principle is that, if a claimant alleges a breach of their rights, it is for the claimant to establish it, but “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179.
• It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle.
• The threshold is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated.
• It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them.
• Irrespective of the perhaps unnecessary complexity of the test, it must not be imagined that it represents an undemanding threshold for an applicant to cross.
• The requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment.
• Sales LJ was correct in the Court of Appeal in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC).
• The arrangements in the UK are such that the decision whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal

(e)Challenge or counter by the Secretary of State to the adduced evidence:

The Supreme Court proceeded to state as follows:

In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it in the manner helpfully outlined in the judgment in the Paposhvili case at paras 187 to 191 and summarised at para 23(b) to (e) above by the Supreme Court in AM(Zimbabwe).

The premise behind the guidance is that, while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state.

Paragraph 187 of Paposhvili provides that, where such evidence is adduced in support of an application under article 3, it  is for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state- the Supreme Court noted that “any” doubts in paragraph 187 of Paposhvili means any serious doubts – for proof, or in this case disproof, beyond all doubt is a concept rightly unknown to the Convention.

(f)Departure from the case of “N”- adoption of wider interpretation in Article 3:

The Supreme Court in AM(Zimbabwe) expressly departs from N at paragraph 34 of its judgement:

“This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case. Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it. Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate. But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening) [2019] UKSC 2, [2020] AC 279. In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case. For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart”.

(g)Remittal of the appeal to the Upper Tribunal for up-to-date evidence properly directed to the Grand Chamber’s substantive and procedural requirements:

The Supreme Court noted that from the evidence submitted by the appellant to the First-tier Tribunal in support of his claim under article 8, the Secretary of State extracted the two medical reports  provided and she contended that they failed to cross the threshold required to be crossed by applicants pursuant to para 186 of the decision in  Paposhvili. In the light of its erroneous opinion that the decision in the Paposhvili case required evidence of a real risk that either intense suffering or death would be imminent in the receiving state, it was therefore not difficult for the Court of Appeal to conclude, that the two medical reports were insufficient to cross that threshold.

The Supreme Court proceeded to state that apart from the fact that the Court of Appeal’s conclusion about the insufficiency of the reports was flawed, it was inappropriate to extract the medical reports from the other evidence submitted in furtherance of the claim under article 8 and to ask whether they crossed the threshold now required of an applicant under article 3 pursuant to the decision in the Paposhvili case.

It was noted that the reports did not address that requirement, which did not exist when they were written as they were both written more than five years ago.

In the Court’s view, they could not address the argument presented to it by the appellant, and strongly disputed by the Secretary of State, namely that, upon application of the Supreme Court’s wider interpretation of the Grand Chamber’s decision, the reports sufficed to cross the requisite threshold.

The proper course was to allow the appeal and to remit the appellant’s proposed claim under article 3 to be heard, on up-to-date evidence properly directed to the Grand Chamber’s substantive and procedural requirements, by the Upper Tribunal.

What next?

A reported decision of either the Upper Tribunal or Court of Appeal will soon “ breakdown” what they believe the Supreme Court really meant when it departed from “N”.

The Secretary of State will in turn, at some point of her choosing, also set out in published Guidance what she believes the Supreme Court was driving at.

The decision of the Supreme Court is fairly short however an unenviable task of some magnitude has been left to the lower courts. There is an expectation that the lower court do what the Supreme Court felt unable to do, ie complete an application of the Supreme Court’s  wider interpretation of Paposhvili, following consideration of up -to- date evidence and reports directed to the Grand Chamber’s substantive and procedural requirements and to ask whether that evidence crosses the threshold now required of an applicant under article 3 pursuant to the decision in the Paposhvili case.

The issues will not be readily resolved easily nor neatly.  Just as the area of deportation since 2012 has been a rife area of a game of ping-pong between the Upper Tribunal and Court of Appeal, so too can  it be expected that quite a bit of litigation will arise in this area and dominate the legal scenario for some time to come.

Meanwhile, for claimants as a matter of advancement of claims, its full steam ahead.

Following the Supreme Court decision and its departure from “N”,  as per the rallying conclusion in a previous blog post of nearly 3years ago, Paposhvili and HIV/AIDS: First Tier Tribunal Judge allows Article 3 medical condition appeal by a Malawian claimant: “From the above, it is therefore possible  for an Appellant to advance an Article 3 medical condition appeal  placing reliance upon Paposhvili and succeed. Whilst the First Tier Tribunal considers matters on the same ground( medical conditions cases)  applying the Paposhvili approach, surely  the Home Office  cannot continue much longer  doing so from another angle ie the “N” approach”.