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

Despite  the Court of Appeal’s guidance in AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64   as regards the test in paragraph 183 of Paposhvili,  it is obvious that  there is still some unfinished judicial business yet to be resolved.  This is evident as  the  Court in AM  was ultimately at pains to stress that it was, “  highly desirable that the Supreme Court should consider the impact of Paposhvili for the purposes of domestic law at an early stage”.  The Court had been urged by the  appellants  not express any view about the true meaning and effect of the guidance in Paposhvili, and in particular regarding the test in paragraph 183 of the judgment in that case: the contention was that the Court  should not venture to do this, but should simply apply the law as laid down domestically by the House of Lords in N v Secretary of State for the Home Department and dismiss the appeals, with a view to granting permission to apply to the Supreme Court. It was argued that  since  the Court of Appeal was bound to dismiss the appeals, anything  that Court  said about the new test in Paposhvili would  be obiter and would not provide assistance for other courts or tribunals.  The  Court of Appeal ploughed  ahead nonetheless  and made it clear that, “We are providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance will be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way”.

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