- BY Chai Patel
Court of Appeal gives authoritative guidance on Article 3 medical cases
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The Court of Appeal last week issued “authoritative guidance” on Article 3 medical challenges against removal, reflecting the European Court of Human Rights’s decision in Paposhvili v Belgium. Lord Justice Sales, giving the court’s judgment in AM (Zimbabwe) & Anor v Secretary of State for the Home Department [2018] EWCA Civ 64, stated that it was clear that Paposhvili “relaxes the test for violation of Article 3 in the case of removal of a foreign national with a medical condition and also that it does so only to a very modest extent”.
No major shake-up despite Paposhvili
Sales LJ went on to provide the Court of Appeal’s interpretation of the effect of the new ECtHR jurisprudence. The protection of Article 3 will apply against removal if:
- There is a risk of death or of intense suffering in the receiving state;
- That risk must be of imminent death or a likely “rapid” experience of intense suffering; and
- The risk must arise owing to the non-availability of treatment in the receiving state that is available here.
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.
Sales LJ rejected an interpretation of Paposhvili which would allow someone facing a real risk of being exposed to a significant reduction in life expectancy to claim the protection of Article 3 without more.
It is true that if one read the phrase “would face a real risk … of being exposed … to a significant reduction in life expectancy” in para. [183] out of context, it might be taken to indicate a very wide extension of the protection of Article 3 in medical cases… But this is not a tenable interpretation… the Grand Chamber’s formulation in para. [183] requires there to be a “serious” and “rapid” decline in health resulting in intense suffering to the Article 3 standard where death is not expected, and it makes no sense to say in the context of analysis under Article 3 that a serious and rapid decline in health is not a requirement where death rather than intense suffering is the harm expected.
The Court of Appeal has made it clear that the purpose of this guidance is to ensure that there is “a uniform and consistent” approach to deciding which claims must be stayed until the Supreme Court has considered the effect of Paposhvili and made a decision on whether to modify the test in N v Secretary of State for the Home Department [2005] UKHL 31. Until the Supreme Court does so, N remains binding precedent.
The prospects for Supreme Court reconsideration
Practitioners whose cases fall under the intense suffering test should ensure that they demonstrate that there would be a “serious” and “rapid” decline in health. Or as the Court of Appeal put it, show an “imminence of intense suffering or death”. In such cases, following this judgment, a stay should be granted to any removal pending a Supreme Court determination on this point.
Sales LJ hinted that the facts of the cases before the court are sufficiently weak that an appeal to the Supreme Court may not be granted. There is still an open question as to which case or cases will end up before the Supreme Court on this issue. Lawyers would do well to think about the doubt expressed by Sales LJ and consider whether or not the facts of cases suggest that they are truly “ideal as vehicles” for the reconsideration of the test in N.
AM did not produce relevant medical evidence about the likely effects on his health if returned to Zimbabwe. The other appellant, Mr Nowar, had previously been treated in Jordan and there was a lack of evidence that such treatment would not be effective in the future. This highlights the fundamental importance of ensuring a solid evidential foundation so that the test in paragraph 183 of Paposhvili can be engaged.
It is also essential to remember that, although an appellant must produce relevant evidence to raise a sufficiently credible case, there is also a very significant procedural duty on the Home Office.
This is referred to in paragraph 41 which highlights that Mr Paposhvili did not actually succeed on the medical aspect of his case, but on the procedural issue: “all that the Grand Chamber held was that the applicant had raised a sufficiently credible Article 3 case that it gave rise to a procedural obligation for the relevant Belgian authorities to examine that case with care and with reference to all the available evidence”.
Thus, an appellant must adduce evidence capable of demonstrating that there are substantial grounds for believing that removal could expose them to treatment contrary to Article 3 (paragraph 186 ofPaposhvili). When such evidence is adduced, it is for the Home Office to dispel any doubts raised by it (paragraph 187).
It is the duty of the Home Office to verify on a case-by-case basis whether the care available is sufficient and appropriate and whether it is actually accessible (paragraphs 189 and 190). And if serious doubts still remain, then the Home Office must obtain individual and sufficient assurances from the country of origin that appropriate treatment will be available and accessible (paragraph 191).
It is therefore essential to keep in mind the procedural obligation on the Home Office which has been highlighted in Paposhvili and which has so far been referenced uncritically by the UK courts.
Given the appalling consequences of this line of case law, I think we all feel a bit of dread at what might happen if the Supreme Court were not given the best possible opportunity to do the right thing.
That is not to say that the Court of Appeal’s somewhat restrictive interpretation of Paposhvili is correct. Much will turn on whether the Supreme Court accepts that a significant reduction in lifespan is not by itself sufficient to engage Article 3. But the reasoning on this point by Sales LJ is likely to be attractive to a Supreme Court wary of opening the floodgates, no matter how unattractive it may be from a humanitarian standpoint.
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