Updates, commentary, training and advice on immigration and asylum law
Claiming humanitarian protection in medical treatment cases
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
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  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.
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.