Upper Tribunal accepts less exacting Paposhvili/AM (Zimbabwe) test can be applied to Article 3 material deprivation claims

In a very lengthy judgment, in Ainte (material deprivation, Art 3, AM) (Zimbabwe) [2021] UKUT 203 (IAC) (22 July 2021), the Upper Tribunal dealt with the proper approach to take in cases involving material deprivation generally, and in the context of Somalia in particular.

Main basis of appeal:

The Appellant, MAA, a Somalian national, was a foreign criminal as defined by s32 of the Borders Act 2007, having been convicted of possession of a Class A drug with intent to supply was sentenced to 4 years imprisonment.   MAA contended that he could bring himself within ‘exception 1’ as set out at s33(2)(a) of the 2007 Act as he sought to prove that his deportation would breach his rights under the ECHR.

Specifically, he contended that he faced a real risk of enduring inhuman and degrading treatment such that would violate Article 3 ECHR. This was on the basis that his return to Mogadishu would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3 ECHR.

(a). “N” versus Paposhvili/AM (Zimbabwe):

As a starting point, in advancing Article 3 material deprivation cases, it is important to appreciate the significance of the relevant differing tests:

  • the very much higher demanding threshold test in N; and
  • the modified test set by Paposhvili/AM (Zimbabwe)

After D v United Kingdom (App No. 30240/96), 24 EHRR 423, in N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 the Court elaborated what was meant by “exceptional circumstances”:

“42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43.The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdomand applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

The approach taken in D Bensaid v United Kingdom (App No. 44599/98), (2001) 33 EHRR 10 and N to health cases has subsequently been uncontroversially applied to those involving non-intentional material deprivation: for instance by the ECtHR in SHH v United Kingdom (App No. 60367/10), (2013) 57 EHRR 18, and domestically in  Secretary of State for the Home Department v Said [2016] EWCA Civ 442[2016] Imm AR 1084.  In such cases, where the feared harm is not caused by the actions of others, that is to say it  is “naturally occurring”, outwith the jurisdiction, applicants are required to demonstrate that theirs is a very exceptional case, where the humanitarian grounds against the removal are compelling.

The “Paposhvili test” is set out in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876:

“183 . The Court considers that the “other very exceptional cases” within the meaning of the judgment in  N. v. the United Kingdom  (§ 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”.

Paposhvili  was endorsed in December 2020 by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167, as clarified below.

(b). Upper Tribunal concludes Said  is no authority for the proposition that ‘naturally occurring’ socio-economic deprivation can never as a matter of law found a claim under Article 3:

In Secretary of State for the Home Department v Said [2016] EWCA Civ 442[2016] Imm AR 1084, the appellant a Somalia national, with mental health issues, resisted deportation on the grounds that upon return to Mogadishu he would very likely become destitute, and thus be exposed to the risk of having to enter an IDP camp, where conditions would be very poor.

In delivering the lead judgment Lord Justice Burnett reviewed the caselaw, and in particular the judgment of Lord Justice Laws in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40[2015] Imm AR 608, and emphasised that claims based on harms arising from naturally occurring phenomena, such as illness or famine, are not paradigm Article 3 claims.

Because the feared harm was not being intentionally inflicted (either by omission or positive action) the threshold to establish a violation of Article 3 was a high one. Equating cases involving material deprivation with health claims [at §15 and §18] the Court held that the applicable threshold is that set out in N v United Kingdom (App. No. 26565/05), [2008] Imm AR 657 and N v Secretary of State for the Home Department [2005] UKHL 31[2005] Imm AR 353.

In Ainte, the Upper Tribunal sought to ensure an understanding of the effect of Said and noted the submissions put forward during the appeal, ie Said has been misconstrued by decision makers as the decision has been interpreted by some as authority for the proposition that ‘naturally occurring’ socio-economic deprivation can never, as a matter of law, found a claim under Article 3.

The Upper Tribunal observed however that on behalf of the Secretary of State it was readily accepted, such an interpretation would plainly be wrong.  It would be contrary to Strasbourg authority and the decision in Said itself [at §18 and §31].

The Upper Tribunal in Ainte, made it clear that the N threshold is undoubtedly an extremely high one, but it is not insurmountable.  Insofar as cases subsequent to Said have been read to the contrary, such readings are inaccurate. There should be an analysis of the impact on the individual concerned and living conditions must be bad enough to reach the minimum level of severity required to engage the article.  Neither Said nor Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994[2018] Imm AR 1273 close the door on such cases.

The Upper Tribunal in Ainte concluded that Said is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.

(c).Neither MSS v Belgium nor Sufi & Elmi approach applicable to the appeal in Ainte:

A related question which assisted the Upper Tribunal in Ainte in determining which threshold test applied in the appeal before it was the consideration of whether it  mattered whether the material deprivation arose with the jurisdiction of a signatory state.

In considering this issue, the Upper Tribunal sought to draw comparison between the cases of MSS v Belgium and Greece (App No. 30696/09), (2011) 53 EHRR 2 and Sufi and Elmi v United Kingdom (App. Nos 8319/07 and 11449/07) (2012) 54 EHRR 9.

  • In MSS v Belgium and Greece(App No. 30696/09), (2011) 53 EHRR 2 the asylum-seeking applicant had been subject to a third-country removal from Belgium to Greece where he found himself living on the streets in conditions of extreme and unremitting poverty. Holding that those conditions were inhuman and degrading the ECtHR emphasised that asylum seekers were  “a particularly underprivileged and vulnerable population group in need of special protection” and that Greece had purposely failed in its legal duties, both domestic and international,  to give them such protection. In these circumstances the threshold for proving a violation of Article 3 was simply that ordinarily applied: having regard to the personal characteristics of the claimant, can it be said that the treatment he suffered was “inhuman and degrading”?
  • Sufi and Elmi too concerned extreme poverty, but not in a signatory state: here the feared harm arose in southern Somalia. Accepting that the civilian population were in effect starving en masse, and living in conditions of extreme fearfulness and insecurity, the ECtHR went on to examine why. It found that those conditions were not naturally occurring, but arose from the ongoing conflict. For this reason the case was distinguished from N[at §282]: “282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation.”

Consequently in Sufi and Elmi it was the ordinary threshold of harm that was applicable. In respect of what factors might be relevant in this context the ECtHR specifically directed itself to the approach taken in MSS: having “regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame”.

In Ainte, the Upper Tribunal asked itself which of these approaches should be taken to MAA’s appeal. It was observed that neither party asked the Upper Tribunal to take the Sufi and Elmi option where the ECtHR had found a clear causal nexus between the behaviour of the various parties to the conflict and the suffering of the population.  It was noted that developments in Somalia had since changed that calculus. In  AMM and Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) the Tribunal found the preponderant cause of dire poverty in Somalia to be the country’s worst famine in 60 years.  Today the objective evidence pointed towards a plague of locusts that have destroyed successive harvests. In common with the panel in AMM, the Upper Tribunal in Ainte stated that it was in no doubt that three decades of civil war had some part to play in the lack of resources faced by Somalia, but for the purpose of this appeal the parties agreed that at present it was the plague which was the “preponderant cause”. As such the party’s’ in Ainte did not seek to persuade the Upper Tribunal to embark on a Sufi and Elmi analysis of the facts.

The Upper Tribunal in Ainte was however not satisfied either that the ratio of MSS could be applied in the appeal for the following reasons:

  • MSSwas concerned with inhuman and degrading treatment within Europe of a particularly vulnerable individual whom the Greek authorities had both the ability, and legal duty, to protect. That duty arose from Greece’s obligations not only under the ECHR, but under the EEA treaties and its own domestic legislation.
  • Nothing in the decision suggested that the same considerations would extend to a feared violation in a non-signatory state. It was noted that ECtHR had expressly held to the contrary in SHH v United Kingdom{90}

The Upper Tribunal was satisfied that the MSS approach could not be extended to cover situations in which non-ECHR signatories fail to meet their own regional or international commitments.

It followed that the approach to take in the appeal was that set out in N. This in turn was considered to lead to the central legal issue: where is the N threshold to be set in such cases today?

(d). SSHD asks Upper Tribunal in Ainte to confine the Paposhvili modification to health cases

The Upper Tribunal in Ainte began by stating that in Said, Burnett LJ expressly equated cases involving non-intentional material deprivation with those concerning ill-health: the Court held that it was the high N threshold that must be applied to such claims.  This was also the view taken by the ECtHR,  for instance Sufi and Elmi [§282], and by the Court of Appeal, in  MI (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782[2019] Imm AR 75   It was observed that to date there had never been any suggestion that different approaches should be taken to these related species of claims, yet this was the case  being put on behalf of the Secretary of State.

The  Upper Tribunal noted that the reason that the Secretary of State was now concerned to draw a distinction between these two types of ‘non-intentional harm’ cases was the modification of the N test introduced by the ECtHR in Paposhvili v Belgium (App No. 41738/10), [2017] Imm AR 876 and endorsed in December 2020 by the UK Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17[2020] Imm AR 1167.

Following N, claimants were required to demonstrate circumstances so exceptionally appalling that they reached the high threshold set in D: where the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.  That ‘deathbed’ scenario had now been held to set too high a threshold to properly reflect the values that Article 3 is designed to protect. The formula posited in Paposhvili was that there must be a real risk 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”.

This was the test endorsed by the Supreme Court in AM (Zimbabwe), albeit it that it is properly understood as a departure from, rather than a clarification of N. It is therefore no longer a requirement of such cases that death be imminent: the focus shifts instead to whether there will be intense suffering in the country of return, or to a significant reduction in life expectancy.

MAA in Ainte requested that the Upper Tribunal apply this modified N threshold.

Amongst others, the following submissions in resistance were advanced on behalf of the Secretary of State:

  • As regards Article 3 of the ECHR, it was never intended that the Convention would be concerned with securing rights outside the territory of the contracting parties
  • Previous caselaw in the ECtHR was concerned with harms that were to be deliberately inflicted by the authorities in the receiving states.
  • It was not until 1997 that the ECtHR in D v United Kingdomfound Article 3 to be engaged in circumstances where the feared degradation and suffering arose naturally. This was the second significant extension to the ambit of the Convention as it was originally conceived. In D the Court found a violation not only where the harm occurred outside of the jurisdiction, but where it arose from the Appellant’s naturally occurring illness: D, and N which followed, represented an ‘extension of an extension’.
  • The application of the D/Nratio to cases involving material deprivation is an extension further still.  Nowhere in any of the judgments in D or N, domestic or European, do the courts expressly contemplate such a leap. More importantly it is clear from the drafting, and indeed the history of the Convention, that its focus is upon civil and political rights as opposed to social, cultural and economic rights.  Said type cases, dealt with ‘an extension of an extension of an extension’: there was pushing at the very limits of the Convention’s protections.  Whilst the Convention may be a ‘living instrument’, its boundaries should not be distorted to the point where it would be unrecognisable to the original signatories.
  • The Upper Tribunal should proceed with caution: the modification of the Ntest introduced by Paposhvili and confirmed in AM (Zimbabwe) was a humanitarian recalibration based very specifically on the circumstances arising in medical cases. Those judgments focused on the illogicality of a distinction between dying on arrival or dying within some months. Should that relaxation of the standard be extended to cases concerned with material deprivation, it will be an extension too far. It would risk, binding the contracting parties to obligations which they did not expressly accept.

The Upper Tribunal was therefore asked by the Secretayr of State to confine the Paposhvili modification to health cases.

(e ).Upper Tribunal in Ainte accepts the less exacting Paposhvili/AM (Zimbabwe) threshold test can apply to Article 3 material deprivation cases

The Upper Tribunal refused to accept the Secretary of State’s submissions putting forward the following reasoning:

  • Decision makers must be careful not to read into the Convention protections beyond its scope, since to do so would be to bind signatories to obligations that they never agreed to. It would however be equally wrong to take a restrictive, originalist approach to the text.  The Convention is to be interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory, and in a manner which continues to reflect the values of the societies that it serves.  A review of the jurisprudence since 1950 reveals just how far, applying those principles, the branches of the tree have already spread.
  • In all of the cases to which the Upper Tribunal had been referred, whether they are about poverty, or a lack of palliative care, or homelessness, the ‘living instrument’ approach has enabled the ECtHR to focus not on fact that the suffering endured by the claimants is socio-economic in nature, but on the suffering itself, and in particular its assault on the human dignity of the individuals concerned.
  • This focus upon dignity has led the Court in recent years to find violations in some arguably unlikely scenarios.
  • Having had regard to jurisprudence the Upper Tribunal was  unable to accept the Secretary of State’s submission that cases concerned with material deprivation are necessarily at the very outer limits of Convention protection and should accordingly be subject to the most stringent of standards, the unmodified N  Strasbourg has already in a variety of contexts recognised rights which, although ostensibly socio-economic in nature, arise in situations fundamentally concerned with human dignity and so capable of engaging Article 3. This approach is consistent not only with the object of the Convention itself, but with the wider humanitarian purpose of human rights law as a whole.
  • The Upper Tribunal was unable to accept the proposition that material deprivation cases are a tenuous ‘extension’ of the health cases at all.
  • The Upper Tribunal in Ainte asked itself what in the health cases is the factor that fundamentally undermines the dignity of the individuals concerned. It was considered that it was not the illnessof Mr D, Ms N, nor Mr Paposhvili which led to the cases before the ECtHR: it was the lack of medical treatment – i.e. material deprivation – that they would face upon expulsion from the host country.
  • Consequently, the Upper Tribunal concluded that it could not agree that there is any jurisprudential distinction between the health cases and those concerned with material deprivation: The Courts have treated them in the same way, uniformly applying the Ntest wherever the feared harm arises from naturally occurring circumstance.
  • Thus whilst the Upper Tribunal accepted that the Convention had expanded, and that each incremental spurt of growth must be carefully considered, it was not accepted that in applying Paposhvili to this case the Tribunal would materially, or impermissibly, be adding to that growth. They would simply be applying the law within its existing limits.  The Nthreshold has been modified by Paposhvili and AM (Zimbabwe) and it is that less exacting, but nevertheless very high test that the Upper Tribunal must apply.  The Upper Tribunal was no longer concerned with whether there would be an imminence of death for MAA upon return to Somalia, but rather whether he will be exposed to conditions resulting in intense suffering or to a significant reduction in his life expectancy such that the humanitarian case for granting leave is compelling.

Whilst MAA’s appeal itself was dismissed having regard to the circumstances of his case, the Upper Tribunal concluded in Ainte that it accepted that having had regard to the caselaw, the findings in MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) and the evidence before it, it was entirely possible that someone returning to Somalia from the UK would find themselves living in conditions that are inhuman and degrading such that would place the UK in breach of its obligations under Article 3.   It was noted that even applying the modified N test, the threshold is a high one, but on the evidence of the situation faced by those living at the ‘wrong end’ of the spectrum, the Upper Tribunal was wholly satisfied that it could be made out.


An analysis of the legal issues, considerations of relevant caselaw and application of the   modified N test as per Ainte is not confined to  claims of Somalian returnees but can be applied to the case of any returnee/deportee seeking to resist removal on the basis that return to their country is likely to result in them facing a real risk of enduring living conditions which would cumulatively amount to serious harm contrary to Article 3, applying the Paposhvili test as endorsed by AM(Zimbabwe).

In advancing such a claim, the Home Office or the Tribunal will consider relevant existing current country guidance caselaw in relation to the particular question of the material deprivation. Where appropriate however, the decision maker can be asked to depart from such existing country guidance caselaw, providing relevant representations with supportive background evidence including, funding permitting, an appropriate expert country report.

In considering such a claim, a careful assessment of the individual circumstances will be taken into account with a view to reaching a conclusion whether there would be a breach of Article 3 of the ECHR, ie will the individual find himself living in inhuman or degrading circumstances/conditions such that his life expectancy will be significantly reduced, or that he will experience intense suffering of the kind envisaged by jurisprudence.

Relevant considerations in preparation of such a claim will include:

  • The claimant’s life in the county of return before coming to the UK
  • circumstances relating to their family prior to arrival in the UK
  • circumstances related to their family at the date of application or appeal hearing
  • their life in the UK
  • whether they have friends in the country of return
  • circumstances related to offending in the UK and convictions
  • Any medical conditions – relevant to circumstances upon return
  • Possibility of access to money remittances
  • Possible entitlement to a payment under the Facilitated Returns Scheme/Voluntary and Assisted Returns Scheme
  • the likelihood of obtaining any kind of regular humanitarian relief in the country of return, for example from an NGO
  • consideration of the employment situation in the country of return