Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal

Following MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), it has become increasingly  clear that there are now two applicable  tests in 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) observed 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.”

 

A previous blog post explores the Court of Appeal ‘s decision in AM (Zimbabwe): A very modest extension of the protection under Article 3 in medical cases: Court of Appeal rules upon meaning and effect of the guidance in Paposhvili

It is therefore possible to argue that a claimant satisfies the criteria in Paposhvili but not that in N.

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Is the door wide open for UK born “Zimbabwean” children aged at least 5years to obtain registration as British citizens relying on MK?

There is a considerable number of undocumented Zimbabwean nationals who were born in Zimbabwe, and following arrival in the UK, now have children of their own born here, aged under 18years.   Some of these children may not yet have accrued the necessary continuous residence in the UK required to enable them to place reliance upon the 7year Rule as a basis of application for leave to remain.   In such circumstances, fulfilment of the 10years continuous residence in the UK required to enable an application for registration as a British citizen would accordingly be inapplicable.

 

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GUEST BLOG by Counsel, Becket Bedford: Ahmed, JK v Sweden and the burden and standard of proof

In the Court of Appeal, verification by the State of documentary or other evidence is sometimes, but rarely, required to assist an applicant to establish his claim: see MA (Bangladesh) v SSHD [2016] EWCA Civ 175 at §29; PJ (Sri Lanka) v SSHD [2015] 1 WLR 1322 at §29, explaining and confirming the Tribunal decisions in Ahmed v SSHD [2002] Imm AR 318; MJ v SSHD [2013] Imm AR 799; and NA v SSHD [2014] UKUT 205.

 

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Partners of British citizens with unlawful or precarious immigration status: Appreciating the stringent evaluative mechanism after Agyarko and TZ (Pakistan)

“In Agyarko the Supreme Court made clear that the scheme established by the Rules and the Secretary of State’s Instructions are lawful and compatible with article 8. Accordingly, the Secretary of State is entitled to apply a test of insurmountable obstacles to the relocation of the family within the Rules and a test of exceptional circumstances as described outside the Rules………Despite the clarity of the conclusions in Agyarko, the appellants seek to persuade the court that there remain important issues relating to how the principles in Agyarko should be applied. Before embarking on a short analysis of those issues, I say at the outset that I am wholly unconvinced that any gloss is needed on the principles described by Lord Reed. I shall at the conclusion of this judgment set out an evaluative mechanism that should be adopted by First-tier tribunals that is consistent with the decisions of the Supreme Court, follows existing good practice across jurisdictions and meets the failure to adequately describe the evaluative judgment undertaken in the reasoning in these cases, despite the fact that the ultimate decisions were and are correct”, said the Court of Appeal in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109 (17 May 2018)

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Tribunal’s jurisdiction: Appreciating when and how to tactfully raise a New Matter in an appeal

Nothing deflates an Appellant more than leaving an appeal venue without their substantive appeal having been heard by a Tribunal Judge.  Such a situation can arise where a Tribunal Judge cannot consider a raised  new matter not previously considered by the Home Office unless the Secretary of State has given consent for the Tribunal to do so.

 

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