- BY CJ McKinney
Claiming humanitarian protection in medical treatment cases
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Seriously ill migrants claiming humanitarian protection status must show that a persecutor would intentionally deprive them of medical treatment, the Upper Tribunal has confirmed. The case is NM (Art 15(b): intention requirement) Iraq [2021] UKUT 259 (IAC).
NM suffers from end-stage chronic kidney disease and needs dialysis to stay alive. The First-tier Tribunal found that he wouldn’t be able to get treatment if sent back to Iraq. It allowed his appeal under Article 8 of the European Convention on Human Rights, but refused his bid for humanitarian protection.
Humanitarian protection can be granted if someone would face a serious risk of serious harm, including “torture or inhuman or degrading treatment or punishment”. That concept can, according to the Upper Tribunal, “encompass a deterioration in health as a result of the absence of appropriate treatment”.
But the harm must be intentional: there must be someone deliberately stopping them from getting treatment. It can’t be the result of “general shortcomings in the health system of the country of origin”. In this respect humanitarian protection is different from Article 3 ECHR, which does cater for “pure medical claims” without the element of “intentionality”.
The Upper Tribunal found that NM’s situation was a pure medical claim. Nobody in Iraq would intentionally stop him from getting dialysis; it was just how things would shake out:
we see no material support for the contention that there is a real risk of the appellant being intentionally deprived of appropriate health care by any of the actors of harm in Kirkuk city, or indeed on a journey from Baghdad to that location. The Tribunal accepted that the humanitarian situation in the formally contested areas was “very problematic”, but the evidence did not refer, for example, to the targeting of health care facilities, the prevention of medical supplies getting through to particular areas, or the denial of access to care for any particular ethnic and/or religious group.
But the Home Office did concede that NM qualified for permission to stay on medical grounds under Article 3 instead. That may not make any difference in his particular case, given that he had already won under Article 8. It does however illustrate how Article 3 sets a lower bar in medical treatment cases than humanitarian protection.
1. In order for an applicant, who relies upon medical grounds, to meet the requirements for humanitarian protection under Article 15(b) of the Qualification Directive (“QD”) s/he must demonstrate that substantial grounds exist for believing there to be a real risk of serious harm by virtue of actors of harm (as defined by Article 6 QD) intentionally depriving that individual of appropriate health care in that country.
2. To establish the intentionality requirement the individual will have to show by evidence a sufficiently strong causal link between the conduct of a relevant actor and the deprivation of health care. Reliance on a degradation of health care infrastructure/provision on the basis of the generalised economic and/or security consequences of an armed conflict in the country of origin will not, in general, suffice.
3. By contrast, Article 3 ECHR cases based on medical grounds do not require intentionality on the part of a third party.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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