In MM (Malawi) [2018] EWCA Civ 2482 the Court of Appeal has again confirmed that there is indeed a discrepancy between the domestic law on Article 3 medical cases as set out in the House of Lords case of N v Secretary of State for the Home Department [2005] UKHL 31 and the recent European Court of Human Rights judgment in Paposhvili v Belgium (application no. 41738/10). The court also conceded that it is arguable that Paposhvili extends Article 3 protection to anyone who would suffer a significant reduction in life expectancy, though it did not adopt that interpretation itself.

The legal question

N, which all parties accepted was binding on the Court of Appeal, said that Article 3 can only prevent removal in “deathbed” cases, where the person to be removed is effectively close to death. What the Court of Appeal had to consider was whether the cases before it, though not meeting the test in N, did meet the test in Paposhvili and whether therefore they should be granted permission to appeal to the Supreme Court on that basis.

Lord Hope in the N case set out the essential principle, referring to the earlier case of D v United Kingdom (application no. 30240/96):

The critical question there was accordingly where and in what circumstances D should die rather than where he should live and be treated. D really did concern what was principally a negative obligation, not to deport D to an imminent, lonely and distressing end. [paragraph 93]

In Paposhvili however the Strasbourg court appeared to expand the issue to “situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.“

Giving the judgment of the court was Lord Justice Hickinbottom, who was also on the bench in the last Court of Appeal case on this issue, AM (Zimbabwe) [2018] EWCA Civ 64. He confirmed that the test set out in Paposhvili is “clearly different from — and, to an extent, more relaxed than — that in N“. But he refused to go further than the interpretation of Paposhvili set out by Sales LJ in AM (Zimbabwe) which is set out in my article on that case. Simply put that, the protection of Article 3 will apply against removal if:

1. There is a risk of death or of intense suffering in the receiving state;
2. That risk must be of imminent death or a likely “rapid” experience of intense suffering; and
3. The risk must arise owing to the non-availability of treatment in the receiving state that is available here.

Crucially, Sales LJ held that even where the risk is of a significant reduction in life expectancy it must be accompanied by a “serious and rapid decline” in health to fall under the Paposhvili principle.

However, in this case Hickinbottom LJ accepted that the alternative view, that a significant reduction in life expectancy could by itself engage the Paposhvili principle, was not “fanciful” or “unarguable”.

A reminder on evidence and the procedural duty on the Home Office

There were two appeals from the Upper Tribunal for the Court of Appeal to decide. In relation to MM and MK, the court considered the factual findings made by the tribunal unassailable and concluded “there is no real risk that returning to Malawi would cause a decline in MM’s health or any other reduction in her life expectancy”. It also dismissed a “courageous” argument that the burden of proof had shifted to the Home Office in accordance with the procedural principle in Paposhvili. The appellant had shown no substantial grounds for believing that removal could expose them to treatment contrary to Article 3.

In the second case of MV, the court again considered that the evidence produced by the appellant simply did not meet the Paposhvili test. MV had argued an increased risk of suicide if returned to Sri Lanka, but the court found that the available evidence fell far short of showing “any real risk that MV’s life expectancy will be significantly reduced” as a result of an increased suicide risk.

This highlights:

1. That even after Paposhvili the evidential threshold in Article 3 cases is very high. It is essential to demonstrate that the relevant treatment is not available in the country of return, and the severity of consequences associated with that;
2. Though Paposhvili does place a burden on the Home Office to conduct its own fact-finding, it is only triggered where the applicant has demonstrated “substantial grounds” that return will expose them to treatment contrary to Article 3.

On this second point, see also the recent Upper Tribunal decision in HKK.

Further developments

The solicitors for MV, Duncan Lewis, have sent us a document produced by counsel for the Secretary of State in open court. It says:

The Home Office is currently revising its policy and guidance, so that caseworkers consider a grant of discretionary leave in cases where there are exceptional circumstances, including cases where an individual would satisfy the test in Paposhvili as clarified by the Court of Appeal.

Duncan Lewis have confirmed their intention to apply to the Supreme Court for permission to appeal in MV’s case. We await the outcome of that decision with interest.

Meanwhile it remains clear that the Supreme Court must at some point resolve this issue. It is absolutely essential that when it does, the case or cases that are before it are evidentially sound.

Update 6 December: it now appears that the Supreme Court will indeed resolve this issue, as permission to appeal has been granted in the AM (Zimbabwe) case.

The Supreme Court has granted permission to appeal from AM (Zimbabwe) v SSHD [2018] EWCA Civ 64 (conflict between domestic law and Strasbourg law as to Article 3 claims made by foreign nationals on ground of ill-health, and effect of Paposhvili v Belgium). https://t.co/q9Is9t7uVh

— Zane Malik (@MalikZane) December 4, 2018