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End of the AM (Zimbabwe) saga? Tribunal returns to Article 3 medical cases


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Practitioners will no doubt be aware of the Supreme Court’s decision in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. The justices endorsed the European Court of Human Rights decision in Paposhvili v Belgium (application no. 41738/10) and thereby materially lowered the threshold for resisting removal under Article 3 of the European Convention on the basis of serious ill-health.

Despite his success on the law in the Supreme Court, AM’s individual case was remitted to the Upper Tribunal for fresh consideration applying the newly-articulated principles. Some nine years after he first challenged his removal from the UK, AM’s claim has now been dismissed. The judgment in AM (Art 3; health cases) Zimbabwe [2022] UKUT 131 (IAC) does not alter the law but illustrates the approach which courts are likely to take to these difficult cases.


AM has been in the UK since he was a teenager and was granted indefinite leave to remain in 2004. Due to offending (including a nine-year sentence), the Home Office decided to deport him to Zimbabwe. But AM is HIV-positive and his condition is controlled by anti-retroviral drugs, together with monitoring and testing. He also has a partner and four children in the UK, but they did not feature prominently in this claim as his Article 8 claim had previously been dismissed.

The tribunal summarised the post-Supreme Court legal principles as follows:

  • Article 3 ECHR is an absolute right and may be engaged by a person’s removal to a country where they will face torture, inhuman or degrading treatment;
  • A “minimum level of severity” must be shown to meet the high threshold of Article 3;
  • The burden of proof is on the person challenging removal to show “substantial grounds” that they face a real risk of treatment breaching Article 3;
  • Whether the minimum level of severity is met by the applicant is relative and depends on all the circumstances of the case;
  • Once an applicant has raised a prima facie case, the returning state (i.e. the UK in this case) can seek to counter it by obtaining evidence to dispel any serious doubts that the applicant may face an Article 3 breach; and
  • If serious doubts persist after examining the returning state’s evidence, the returning state must obtain individual and sufficient assurances from the receiving state (here Zimbabwe) that appropriate treatment will be available and accessible before removal can be lawfully pursued.

The tribunal set out a clear scheme for assessing cases of this type, which is set out in the headnote quoted in full below.


The dismissal of AM’s appeal did not turn on any legal dispute but rather on the tribunal’s assessment of his evidence. The three-judge panel found that he was not credible in many respects, pointing to inconsistencies between his accounts. AM’s counsel accepted he could not pretend that AM had mended his ways and that he was “precisely the sort of individual whom the public does not want to see remain in the UK due to his criminal offending and disregard for the law”. AM’s offending was of course not a material factor in assessing his Article 3 claim, but his character and conduct did influence the Tribunal’s assessment of his evidence.

The tribunal also received evidence from the treating consultant, and from two experts (one instructed by each side) regarding the Zimbabwean healthcare system. The two disagreed about the cost of anti-retroviral (ARV) treatment, monitoring and testing in Zimbabwe and the risks involved in switching ARV drugs. Both experts failed to provide sources for their conclusions, which the tribunal understandably criticised. The judgment emphasises that in cases like this the more useful type of expert evidence was likely to come from clinicians directly involved in providing relevant treatment and services in the country of return, with knowledge of treatment options in the public and private sectors.


Having reviewed the available evidence, the Upper Tribunal concluded that there was an available and effective ARV alternative in Zimbabwe, available in the public sector and costing about US$2 a month. It also found that adequate, affordable testing and monitoring could take place there. AM would have support from his family. While AM could face stigma as someone with HIV, he had been discrete about this in the UK and was an “intelligent and resilient” man who would be able to work.

While this appeal turned entirely on its own facts, there are a few points which practitioners can take from it:

  • Expert evidence from clinicians who have recent experience of providing relevant treatment and services in the receiving country will be essential in many cases;
  • Expert evidence should also address treatment options and costs in both public and private sectors. Again, any experts should have recent and relevant qualifications;
  • Even though character and conduct are not directly relevant in Article 3 cases, credibility is still likely to influence the assessment of an applicant’s claims about their resilience and ability to cope following return; and
  • Family or community support will likely play a significant role in the tribunal’s assessment of the accessibility and availability of treatment.

I leave you, as promised, with the full headnote.

The official headnote

1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):

(1) Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?
(2) Has P adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”:
[i] “on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy”?

2. The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.  

3. The second question is multi-layered.  In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects.  What is required is “intense suffering”. The nature and extent of the evidence that is necessary will depend on the particular facts of the case.  Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state.  Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state.  Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.

4. It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran become of relevance – see [135] of Savran.

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Miranda Butler

Miranda Butler is a barrister at Landmark Chambers practising in all areas of immigration, with a particular focus on asylum and human rights.