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Strasbourg gets strict with non-exhaustion of domestic remedies


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The European Court of Human Rights took a strict approach to non-exhaustion of domestic remedies in the case of Khaksar v United Kingdom (application no. 2654/18), decided last month. The message to potential applicants is clear: all domestic remedies need to be exhausted. That includes applying for permission for judicial review when no direct appeal of a decision is possible.

Resisting removal

The applicant, Turyalai Khaskar, is an Afghan asylum seeker facing removal from the UK. Expert medical evidence stated that he had a rare medical condition that without medical treatment could result in fatal “catastrophic bleeding”. The Secretary of State refused Mr Khaskar’s asylum application in October 2015.

Mr Khaskar appealed the asylum decision, arguing that his condition meant that returning to Afghanistan would violate his right to private life (Article 8) and right not to be subjected to inhuman or degrading treatment (Article 3). Practitioners and regular readers of this blog will no doubt predict the outcome. Mr Khaskar’s arguments were unsuccessful both at the First-tier Tribunal and, subsequently, in his judicial review permission application at the High Court.

Since N v SSHD [2005] UKHL 31 — affirmed by Strasbourg in N v UK (application no. 26565/05) — the hurdle for resisting removal on the grounds of a medical condition has been set almost insurmountably high. Only in “very exceptional cases” could humanitarian grounds be invoked in order to trigger the protection of Article 3. The upshot is, as has been repeated on this blog many times before, that people with severe diseases can be removed from top class treatment in the UK to face significantly shorter lifespans abroad.

False hope: Paposhvili v Belgium

The Grand Chamber decision in Paposhvili v Belgium (application no. 41738/10), handed down on 31 December 2016, seemed to offer new hope to Mr Khaskar. That case slightly softened the approach to removing an individual with a serious illness. The court suggested that Article 3’s protections extended beyond deathbed cases and included:

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.

Mr Khaskar made further submissions to the Home Office seeking to have Paposhvili taken into account. In July 2017 the Secretary of State decided that there were no grounds for a fresh claim:

The Secretary of State is aware of the findings of the case of Paposhvili however it is considered that the case of N v SSHD remains authoritative in establishing the threshold to be met in Article 3 (medical) cases.

No appeal from this decision was possible. The only route open to Mr Khaskar was a judicial review of the decision before the High Court. Having already had permission refused in respect to the Secretary of State’s first decision, Mr Khaskar decided against a second spin on the carousel. Instead, he lodged an application with the European Court of Human Rights.

The “golden rule”: exhausting all domestic remedies

The court took a strict approach to admissibility. Mr Khaskar’s case was heard by a Committee (three judges) who unanimously found that:

the applicant did not seek permission for judicial review of the decision of the Secretary of 13 July 2017 before the High Court, in order that the domestic courts could consider the matter in accordance with the domestic law.

Accordingly, the Court considers that the applicant has failed to exhaust all domestic remedies available to him and that the application must be rejected pursuant to Article 35(1) of the Convention.

In other words, every domestic remedy must be tested and exhausted. Mr Khaskar needed to judicially review the Secretary of State’s second decision if he wanted the European Court to consider the merits of his case.

This outcome is frustrating for applicants and no doubt personally devastating for Mr Khaskar who will now be sent back to Afghanistan to manage his very serious illness.

At first sight it may also seem overly formalistic. Mr Khaskar had no rights of appeal. He had already attempted judicial review on the Secretary of State’s first 2015 decision. The outcome was arguably unlikely to be different in encore proceedings.

But from a European perspective a strict approach is the correct one. The European Court of Human Rights is, in the words of Icelandic Judge Spano, entering “the age of subsidiarity”. The doctrine of subsidiarity means that the primary responsibility for protecting human rights lies with member states. The court’s admissibility guide reminds applicants that non-exhaustion of domestic remedies is a “golden” rule. Where available and effective domestic legal avenues exist the Court will not be Mystic Meg and predict an unsuccessful outcome for unheard cases.

Moreover, as the European Court noted, the impact of Paposhvili is now being felt in UK cases. The Court of Appeal recently interpreted Paposhvili (albeit somewhat restrictively) and handed down binding authoritative guidance on its meaning and effect to the lower courts. Future Mr Khaskars will, therefore, have the benefit of that more relaxed test when their applications are being considered.

The European Court’s overall message to practitioners and prospective applicants is clear: the “all” in Article 35 is not superfluous. If every domestic remedy has not been pursued, inadmissibility awaits.


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Clare Duffy

Clare is a public law teaching fellow at University College London.