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New Home Office Note on medical treatment and healthcare in Zimbabwe: basis for a fresh medical condition human rights claim?

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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:

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:

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

 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:

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:

An applicant should produce evidence of all of the following:

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:

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:

-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:

 

 

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