The Court of Appeal has reiterated the process that should be followed in article 3 medical treatment cases in relation to the shifting burden of proof, as set out in AM (Zimbabwe) v SSHD [2020] UKSC 17 and in the headnote to the Upper Tribunal’s consideration of the case. This case is THTN v Secretary of State for the Home Department [2023] EWCA Civ 1222.

Background

The appellant is a Vietnamese national who was arrested in the UK in July 2008 on suspicion of cultivating cannabis. She was granted temporary admission and claimed asylum on 10 March 2020. As there were trafficking indicators in her case, she was referred as a potential victim of trafficking and a positive conclusive grounds decision was made. On 18 October 2010 she was recognised as a refugee and granted leave for five years. Her two daughters joined her in 2011.

In April 2015 the appellant pled guilty to kidnapping. The sentencing judge found that she played a significant role in what was a very serious offence that was committed with five others. She was sentenced to 11 years and six months’ imprisonment.

At the end of her five years’ of refugee leave, in November 2011, the appellant applied for indefinite leave to remain. On 6 July 2016 she was served with a decision to deport her. She was excluded from the protection of the Refugee Convention as the Home Secretary decided that section 72 of the Nationality, Immigration and Asylum Act 2002 applied.

Written submissions were made in response to the deportation decision, stating that it would be a breach of article 3 ECHR to return the appellant to Vietnam because of the risk that she would be re-trafficked and because she had HIV and treatment in Vietnam was inadequate.

In May 2017 the Home Secretary notified the appellant that her refugee status may be revoked or cancelled, as she no longer faced persecution in Vietnam. UNHCR were notified and responded in January 2018 to the effect that there was insufficient evidence that circumstances in Vietnam had changed to the extent that Article 1C(5) of the Refugee Convention could be applied and the appellant’s refugee status ceased. UNHCR also said that “the alternative of internal relocation was in principle not a relevant consideration when making a cessation decision”.

A deportation order, decision to revoke refugee status and the appellant’s human rights claim was made in January 2019. The Home Secretary’s position was that there had been fundamental and durable changes in Vietnam for trafficking victims and there was no general risk of female victims facing re-trafficking, HIV treatment was generally available. It was also said that the appellant could internally relocate if necessary.

The subsequent appeal was dismissed by the First-tier Tribunal and the Upper Tribunal, proceeding to the Court of Appeal when permission was granted on 13 March 2023.

The appeals in the Tribunals

The issues considered by the First-tier Tribunal were:

• was it appropriate for the Home Secretary to certify that the appellant was excluded from protection under the Refugee Convention under section 72 of the 2002 Act ?
• was the Home Secretary’s decision to revoke or cease the appellant’s status as a refugee correct?
• would a return of the appellant to Vietnam violate her rights under article 3 of the Convention?

Only the second two issues were appealed to the Upper Tribunal. On cessation, the First-tier Tribunal had relied in part on a Country Policy Information Note that had been produced more recently than UNHCR’s letter. The Upper Tribunal found that the First-tier Tribunal had not fallen into error in doing so. The Upper Tribunal held that the First-tier Tribunal’s findings of were justified by the evidence.

On the article 3 point, it was argued that as the First-tier Tribunal had made findings that the appellant’s mental health would deteriorate if her treatment were to stop, at that point “the burden moved to the SSHD to show that adequate treatment would be available. The grounds cited AM (Zimbabwe) in support of this proposition.” The Upper Tribunal’s consideration of the article 3 point was very brief and had not addressed the shifting burden of proof or mentioned AM (Zimbabwe).

The Court of Appeal

The Court of Appeal granted permission on six grounds. In relation to cessation, it was argued that the First-tier Tribunal had failed to give due weight to UNHCR’s letter and that it had relied on a non country guidance case which was fact specific and not relevant to the appellant’s case. These arguments were dismissed.

On the medical grounds point, it was argued on behalf of the appellant that the burden of proof shifts to the Home Secretary once a person has evidenced that they are suffering from a serious medical condition, that they are currently receiving treatment, and the consequences of no longer receiving that treatment. At this point, it was submitted, it is for the Home Secretary to provide evidence about the availability and accessibility of treatment.

The Home Secretary argued that “an applicant must provide evidence in relation to medical facilities in the receiving state which is sufficiently cogent to establish a violation of Article 3. Only in that event would it fall on the returning state to meet that evidence should it choose to do so.”

The Court of Appeal, after summarising the relevant authorities, confirmed that neither of these arguments reflected the correct legal position and that:

Stage one of the process requires the applicant to provide strong evidence of the seriousness of the illness including the treatment involved and the consequences of removal of treatment. Those are matters which will only be within the knowledge of the applicant. She also must provide sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state. The SSHD (or on appeal the F-TT) will be well capable of determining whether sufficient evidence has been adduced to cast doubt on the receiving state’s medical facilities.

As the First-tier Tribunal had considered whether the appellant had “proved the serious risk of a violation” rather than “whether there were substantial grounds for believing” that removal would lead to a serious risk of a breach of the appellant’s article 3 rights, the Court of Appeal allowed the appeal and remitted it to the First-tier Tribunal.

Conclusion

The court helpfully set out the process the Home Secretary should follow in medical treatment article 3 cases. First she should assess the strength of the evidence provided. If she considers that it is strong and the applicant has provided evidence that that supports the position that there are substantial grounds for doubting the availability of treatment in the receiving state, then the Home Secretary should obtain her own relevant country information before making her decision. This decision is a useful reminder to all parties about how these cases should be handled.