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No broadening of Article 3 test in health cases


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Unfortunately the Court of Appeal’s judgment in the Article 3 health test cases in GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40 (30 January 2015) does not change very much for migrants with serious health conditions seeking to remain in the UK.

In this test case in which five of the six appellants suffer from terminal renal failure or end stage kidney disease (ESKD) and one suffers from an advanced stage of HIV infection, the Court endorsed the restrictive approach adopted by the Strasbourg Court in D v UK (1997) 24 EHRR 423 which was followed by the House of Lords in N v Secretary of State [2005] 2 AC 296, [2005] UKHL 31. In GS (India) the Court of Appeal found no distinction between the approach in the House of Lords and that of the Grand Chamber of the ECtHR in N v UK (2008) 47 EHRR 39. In essence the Court of Appeal, notwithstanding that Article 3 of the ECHR was drafted in 1950 before the medical advances available today could even be contemplated and is deemed to be a “living instrument”, restated that Article 3 requires state responsibility to be established. Lord Justice Laws held at paragraph 52 as follows:

No doubt it is not for us to pass upon the view of judges of the Strasbourg court as to the approach to be taken in principle to the scope of Article 3, not least in a case in which the United Kingdom was not the respondent. But I may perhaps be allowed to observe, with respect, that the gravity of what may befall an Article 3 claimant is not the only test of his claim. It has to be shown that the impugned State should be held responsible for his plight. As regards that, the nature of the paradigm case and the scope of its proper exceptions are surely critical. But in any case these judicial reservations in relation to the case of N cannot qualify our duty to follow the decision of the House of Lords in the same case.

The Court distinguished the more progressive approach to the requirement of state responsibility adopted in MSS v Belgium & Greece (2011) 53 EHRR 2, Sufi & Elmi v UK (2012) 54 EHRR 9 and most recently in Tarakhel v Switzerland (Application No. 29217/12) from the appeals in GS & Others on the basis that they did not extend the reach of the departure permitted by D, because a departure from the Article 3 paradigm is justified on the basis “that there exist very pressing reasons to hold the impugned State responsible for the claimant’s plight” (per Lord Justice Laws paragraphs 62 & 63).

The approach endorsed by the Court of Appeal in effect prevents health cases relying on Article 3 other than in exceptional circumstances. The extension adopted in N v UK where the court did not exclude at paragraph 43 “that there may be other very exceptional cases where the humanitarian considerations are equally compelling” must be interpreted very narrowly according to the Court of Appeal in GS & Others. So narrowly in fact that it remains in effect limited to deathbed cases. There is very little recognition within the judgement of the inevitable plight that these appellants and those in similar situations with no leave to remain in the UK now face in light of this decision. As Lord Justice Laws states at paragraph 84 if

“they cannot bring themselves within what may be called the D exception. Their plight, however grave, cannot be alleviated by recourse to Article 3.”

In relation to the application of Article 8 in this context, which neither D nor N had engaged substantively with, in GS (India) Lord Justice Laws who was in the minority on this point held that the Court of Appeal had no jurisdiction to consider it as it had not been raised in the Upper Tribunal. Lord Justice Sullivan and Lord Justice Underhill refused to exercise discretion to allow consideration of those arguments in the Court of Appeal proceedings. This means there remains a paucity of guidance on the application of those principles to health cases other than the decision of Lord Justice Moses in MM (Zimbabwe) [2012] EWCA Civ 279 where he stated at paragraph 23:

The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.

Having decided that the Court had no jurisdiction to consider Article 8 Lord Justice Laws nonetheless commented at paragraph 98 in GS (India) that there is no basis on the facts of these cases which might give rise to a claim under Article 8 where there is none under Article 3.

Therefore little has changed and there remains virtually no prospect of succeeding under Article 3 in a health case except in the most exceptional circumstances. Possibly the only prospect of an applicant succeeding in a health case is if they can show that Article 8 is otherwise engaged on the facts such as by family life or perhaps an aspect of private life other than health. That may be the most positive aspect of the decision in GS (India) that at least the Court of Appeal has not narrowed the position in relation to Article 8 which following MM (Zimbabwe) is still open where other aspects of Article 8 are engaged in a particular case.

The Court of Appeal having refused permission to appeal to the Supreme Court, an application will now be made to the Supreme Court. It is hoped that the Supreme Court will be more receptive to the arguments for developing the Article 3 principle in health cases in light of the scope and purpose of that provision as well as to the arguments about the breadth of private life under Article 8, which is not limited as Laws LJ suggests to the right to privacy and following Bensaid v UK (2001) 33 EHRR 205 includes physical and moral integrity.

Nathalie Lieven QC (EO & GS ) Declan O’Callaghan and Jacqueline Lean ( GS ) Miriam Carrion Benitez (EO) (instructed by Jasvir Jutla & Co Solicitors and Irving & Co Solicitors) for the 1st and 2nd Appellants

Raza Husain QC (GM, PL, and BA) Duran Seddon (GM, PL and BA) Rebecca Chapman (BA) and Gemma Loughran (PL) (instructed by Birnberg Peirce & Partners, Turpin Miller LLP and Hardings Solicitors) for the 3rd, 4th and 5th Appellants

Manjit Gill QC and Shazia Khan (KK) (instructed by Parker Rhodes Hickmotts) for the 6th Appellant

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Abigail Smith

Abigail practises from Garden Court Chambers primarily in public law, specialising in asylum, immigration, prison law and related areas. She is recommended for immigration in Chambers UK.


2 Responses

  1. [38] “there is at once a difficulty, unacknowledged in these dicta. How is the “living instrument” approach to be reconciled with the court’s duty to be loyal to the founders’ agreement? The notion that the modern scope of ECHR rights may be resolved by asking whether the States parties might have consented to this or that outcome suggested by circumstances which were or might have been beyond contemplation when the text was agreed is surely problematic.”

    I think this is nonsense from Laws LJ. The living instrument doctrine at Strasbourg has been settled for decades, and was settled long before domestic incorporation via the HRA 1998. Section 2 HRA requires the UK courts to take into account relevant Strasbourg jurisprudence. Relevance cannot be limited to precise outcomes but to general principles or doctrines, such as the margin of appreciation or living instrument. The living instrument doctrine must therefore be taken into account by UK courts as clearly pursued by Strasbourg in preference to the alternative of original intent.

    Parliament cannot be assumed to have been in ignorance of the living instrument doctrine when it enacted the HRA and thus must have also endorsed this aspect of Strasbourg’s jurisprudence, or else it would have expressly excluded it.

    Laws LJ is forgetting that the ECHR is not international law to which the Vienna Convention principles of interpretation apply. The ECHR rights are domestic law via the HRA. The intention of those who drafted and those who initially signed the ECHR as a treaty of international law are irrelevant for the purposes of interpretation, and have been since domestic incorporation.

  2. In addition, circumstances which “might have been beyond the founders’ contemplation” is splendidly vague. How can the court tell? Would the founders of the ECHR really have been unable to even contemplate cases such as the ones before the court? Then there are several references to Article 2- and if these circumstances were beyond the founders’ contemplation with regards to Article 3, they were even more so with regard to Article 2 ! Apparently dying doesn’t affect your Article 8 rights: this reminds me of the chain-smoking Minister for Sport in Yes Prime Minister who denies that “dying of lung cancer can seriously damage your health”…