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:
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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
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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.”
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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