Many undocumented Zimbabweans within the past decade or so have had claims based on their medical condition(s) refused by the Home Office and dismissed by the Tribunal with reference to the very high threshold test expounded by the House of Lords in the case of N [2005] UKHL 31.

Whilst considerations depend on the circumstances of each case, it might be that in appropriate cases, a fresh human rights claim can now be made to the Home Office, more so where that past negative Tribunal or Home Office decision was made prior to publication of AM(Zimbabwe) by the Supreme Court.

In Paposhvili v Belgium [2017] Imm AR 867, the European Court of Human Rights (ECtHR) clarified its previous approach in N v UK (2008) 47 EHRR 39. The ECtHR shifted the boundary of Article 3 protection from those who were about to die in the removing state to those who would face a serious, rapid and irreversible decline in their health leading to intense suffering and/or a significant reduction in their life expectancy either because of the absence of treatment or inaccessibility of treatment in the country of return.

A year ago, on 29 April 2020 the Supreme Court in AM (Zimbabwe) [2020] UKSC 17, affirmed the Article 3 medical threshold as that held in Paposhvili v Belgium [2017] Imm AR 867 and provided the Supreme Court’s interpretative steer which is now the test to follow when considering medical claims (placing reliance on Article 3 of the ECH).

WHAT THE HOME OFFICE NOTE STATES GENERALLY IN RELATION TO HEALTHCARE IN ZIMBABWE

The new Home Office Note, Country Policy and Information Note Zimbabwe: Medical treatment and healthcare Version 2.0 April 2021  clarifies the following amongst other issues in relation to the health care system in Zimbabwe:

• Health facilities have widespread shortages of basic medicines such as painkillers and contraceptives. Zimbabweans seeking healthcare are generally required to bring their own drugs, syringes, bandages, and water, and to pay for their treatment in US dollars
• Most of Zimbabwe’s political and economic elite travel to South Africa or other destinations abroad to access private medical care.
• The Foreign, Commonwealth and Development Office (FCDO) travel advice for UK nationals in Zimbabwe, updated on 3 February 2021, noted: ‘The provision and quality of health care is variable and can be especially poor outside of the major cities. There’s a shortage of drugs and trained medical staff in hospitals, making it difficult for hospitals to treat certain illnesses including accidents and trauma cases. The shortage of fuel has reduced emergency response capabilities.
• Zimbabwe has an acute shortage of human resources for health (HRH).
• The Universal Health Care Partnership (UHCP) Zimbabwe country profile stated: ‘Zimbabwe’s health system, guided by the Health Service Act, is frail due to hyperinflation and political instability. Low access to health care, high teenage fertility, a double burden of communicable and non-communicable diseases, as well as natural and human-made disasters (including frequent disease outbreaks, acute public health emergencies and other health-related humanitarian disasters) impact the population’s well-being.
• The FCDO travel advice for UK nationals in Zimbabwe, updated 3 February 2021, noted: ‘Private clinics will not treat patients until they pay and often require large amounts of cash before they will admit even emergency cases. An increasing number of businesses in Zimbabwe will only accept US dollars in cash, rather than credit or debit cards. This includes some medical providers. Even if payment is available some of the best hospitals are often too full to admit patients. Medical costs, particularly for evacuation, can be high.’
• Mental health] Facilities exist. Yet, missing pieces in the mental health system prevent the vast majority of Zimbabwe from accessing proper mental health care. The main missing pieces are funding and resources, creating a host of issues such as the inability to implement most of the Mental Health Act, poor staffing, drug shortages, and overcrowded hospitals and prisons.
• Patients who can access mental health care do not have medications to treat their illnesses. Due to drug shortages, many psychiatrists prescribe all patients—regardless of their disorder—the same out-dated, unspecific drug, often rife with side effects.
• The USSD 2020 Human Rights Report observed: ‘Persons with mental disabilities also experienced inadequate medical care and a lack of health services”

WHAT THE HOME OFFICE NOTE STATES IN RELATION TO AVAILABLITY OF HIV TREAMENT

The Home Office April 2021 Note states that MedCOI reported that the following ARV drugs, used in the treatment of HIV/AIDS, are available in Zimbabwe:

• darunavir (available from Harare Central Hospital [public] in July 2020)
• emtricitabine (available from the Harare Central Hospital [public] in December 2019)
• tenofovir alafenamide (available from the Harare Central Hospital [public] in December 2019 but subject to supply problems)
• ritonavir (available from the Harare Central Hospital [public] in February 2020)
• cobicistat (available from the Harare Central Hospital [public] and the Avenues Clinic [private] in Harare in July 2020)
• dolutegravir (available from the Harare Central Hospital [public] in July 2020)
• rezolsta (available from the Harare Central Hospital [public] in July 2020)
• abacavir (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
• atazanavir (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
• lamivudine (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
• epzicom (available from the Avenues Clinic [private] in Harare in June 2020 but subject to supply problems)
• atazanavir + ritonavir (available from the Avenues Clinic [private] in Harare and the Harare Central Hospital [public] in June 2020 but subject to supply problems)
• elvitegravir (available from the Avenues Clinic [private] in Harare and the Harare Central Hospital [public] in November 2019 but subject to supply problems)
• genvoya(available from the Avenues Clinic [private] in Harare and the Harare Central Hospital [public] in November 2019 but subject to supply problems)
• descovy (available from the Trinity Pharmacy [private] in Harare in February 2020)

Annex A of the Home Office Note contains the following further List of available medication according to MedCOI:

• abacavir (subject to supply problems in June 2020), amlodipine, atazanavir (subject to supply problems in June 2020), atazanavir + ritonavir (subject to supply problems in June 2020)
• carboplatin, citalopram (subject to supply problems in May 2020), cobicistat darunavir , dolutegravir

• emtricitabine, elvitegravir (subject to supply problems in November 2019), enalapril, entecavir (subject to supply problems in June 2020), epzicom (subject to supply problems in June 2020), escitalopram
• fluorouracil, fluoxetine110, fluvoxamine, folinic acid
• genvoya(subject to supply problems in November 2019)
• amivudine (subject to supply problems in June 2020), levothyroxine (subject to supply problems in November 2019) lidocaine, liothyronine sodium (subject to supply problems in November 2019)
• morphine
• oxaliplatin
• paclitaxel, paroxetine
• ramipril, rezolsta, ritonavir
• sertraline
• enofovir alafenamide (subject to supply problems in June 2020), temofovir disoproxil (subject to supply problems in June 2020)

 HOW THE HOME OFFICE APPROACH MEDICAL CONDITION CLAIMS

Via their Home Office Policy Guidance, Medical claims under Articles 3 and 8 of the European Convention on Human Rights (ECHR) Version 8.0, 19 October 2020, the Home Office maintain the position that, “The threshold in Article 3 medical cases is very high, as set out in the UK Supreme Court case of AM (Zimbabwe) [2020] UKSC 17………”

In AM(Zimbabwe), the  Supreme Court held that the test is a demanding one {23 and 32]:

“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;

……………….

 32.The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you 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, set out in para 23(a) above, 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. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For 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. All three parties accept that Sales LJ was correct, 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). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions 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”.

In order for an applicant to establish that there would be a breach of Article 3 on medical grounds if they were removed from the UK, they must show that there are substantial grounds for believing that:

They would face a real risk of being exposed to either:

• a serious, rapid and irreversible decline in their state of health resulting in intense suffering, or
• a significant reduction in life expectancy – (‘significant’ means ‘substantial’) and whether a reduction in life expectancy is substantial will depend on the facts of the case

The serious, rapid and irreversible decline in health leading to intense suffering and/or the significant reduction in life expectancy must be as a result of either:

• the absence of appropriate treatment in the receiving country, or
• the lack of access to such treatment

An applicant should produce evidence of all of the following:

• their medical condition
• their current treatment for their medical condition
• the likely suitability of any alternate treatment for their medical condition
• the effect that an inability to obtain effective treatment would have on their health

The applicant must produce evidence to show that on the face of it there is an infringement of their rights which, if it wasn’t challenged, would establish a breach of Article 3 on medical grounds.

It is for the applicant to adduce evidence about their medical condition; current treatment; the likely suitability of any other treatment; and the effect of their inability to access it.

The applicant must provide documented evidence of their medical condition, from a qualified and certified medical practitioner with responsibility for their care (and with any relevant specialist qualification), with:

• specific details of their condition
• the treatment being provided
• the prognosis if treatment is sustained
• the likely effects of withdrawal of treatment and the likely suitability of any alternate treatment for their medical condition.

The Home Office must investigate any serious doubts about whether an applicant can be safely removed from the UK without breaching Article 3 on medical grounds. This is supposed to be done on a case by case basis, using evidence about the availability and accessibility of treatment in the receiving state to decide:

• whether the care and treatment which is generally available in the receiving state is in practice sufficient to prevent a breach of Article 3, and
• whether care and treatment is accessible, taking into consideration:

-cost

-the existence of a family/support network, and

-geographical location

After the Home Office considerations, if serious doubts persist, the UK needs to obtain individual assurances from the receiving state that appropriate treatment would be available and accessible to the applicant. Individual assurances need only be sought where serious doubts remain about whether they can be safely removed from the UK without breaching Article 3 on medical grounds.

FRESH HUMAN RIGHTS CLAIM BASED ON MEDICAL CONDITION

The Home Office Note paints a poor picture of the state of the health care system in Zimbabwe, however reliance should not be placed upon this Note alone to support a medical condition human rights claim.

For example in relation to HIV treatment, there have over the years running to this year, been frequent reported shortages of ARV drugs in Zimbabwe, an issue affecting availability of treatment.  Apart from stating against the relevant medication, “ available…. subject to supply problems”, the Home Office Note does not delve to any clarificatory extent into these persistent problematic issues and as such detailed independent research needs to be undertaken.

Overall, consideration should be had to the following when preparing and submitting a fresh medical condition human rights claim:

• Careful regard to past Home Office/Tribunal decisions: Where there have been previous proceedings especially an appeal in the Tribunal, the starting point should be to consider the basis upon which the past human rights claim failed and then take matters forward from there.
• Application package: A carefully prepared application package needs to be submitted in support of the initial claim or fresh claim to include the documentation referred to below.
• Applicant’s statement: The Home Office will be expected to undertake consideration of a range of factors based on the individual facts of each case. An applicant should prepare a statement in support of the application addressing the requisite applicable factors as per the circumstances of their case.
• Medical Report: As above, a medical report will need to be obtained. Requisite questions need to be posed to the Consultant preparing the report so that an effective medical report may be produced. General records of GP attendances/summaries etc are not adequate on their own but can, where relevant, supplement the especially prepared medical report.
• Country expert Report: Where treatment is available in the court of return, the Home Office will need to consider if it is also accessible to the applicant in terms of costs and location (in relation to where they live) in the country of return, and what support they would have from family and friends.  Where having regard to the research and considerations undertaken by the applicant, funding permitting, a respected country expert may be instructed  to prepare a report addressing potentially problematic issues.
• Written representations and outcome of research: Whether medical treatment and care is accessible will involve consideration, in the round, of the cost of treatment from the state, from domestic and international non – governmental organisations as well as assistance in obtaining treatment from state and private healthcare providers; support from family or friends in providing care and paying for treatment, and the applicant’s own ability to afford treatment. In assessing if treatment is accessible the Home Office also need to consider any physical obstacles that the applicant may need to overcome to obtain treatment. For instance, the applicant may live in a rural part of the country with limited transport options but have to travel to the only hospital that offers the relevant treatment in a city, hundreds of miles away. In order to address these issues, written representations in support of the application should address matters and the outcome of conducted research should be included with the application package.