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The AM (Zimbabwe) test now applies to destitution too


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The ripple effects of Paposhvili v Belgium [2016] ECHR 1113 continue to be felt at the boundary of Article 3 ECHR. In the first reported decision of its kind, the Upper Tribunal has found that the “modified” (for which, read “lowered”) test for Article 3 breach in medical treatment cases – enthusiastically endorsed by the Supreme Court in AM (Zimbabwe) [2020] UKSC 17 – now also applies to so-called “material deprivation” or “living conditions” claims. 

Ainte (material deprivation, Art 3, AM) (Zimbabwe) [2021] UKUT 203 (IAC) was an appeal against deportation to Somalia. Mr Ainte argued that his removal to Moghadishu “would result in him facing a real risk of living in conditions of such extreme material deprivation, and so lacking in security, that they would constitute inhuman and degrading treatment under Article 3”.

The headnote states:

i) Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.

(ii) In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.

In other words, the almost always insuperable threshold imposed by N v UK [2008] ECHR 453 in such cases (“very exceptional”), which reflected an embedded judicial caution towards the expansion of Article 3, has been superseded. Risk on return should be evaluated on the same terms as the Paposhvili test: “intense suffering or a significant reduction in life expectancy”. 

That of course has important implications for all appeals where “mere” socio-economic destitution is pleaded. But it also arguably affects the approach to be taken to risk of suicide — putting AXB (Art 3 health: obligations; suicide) Jamaica [2019] UKUT 397 (IAC) under strain — as well as claims grounded in the real risk of mental health deterioration more generally. In the long term, it could chart a way forward in framing human rights protection for those fleeing climate catastrophe.

A new Article 3 paradigm

There are two ways to view this latest step by the Upper Tribunal. First, since the old N test came to be used in a range of non-medical cases, it is entirely logical and consistent that the modified N test created by Paposhvili should likewise assume that role. As the Upper Tribunal puts it (in paragraph 61):

Thus whilst we accept that the Convention has expanded, and that each incremental spurt of growth must be carefully considered, we do not accept that in applying Paposhvili to this case we would materially, or impermissibly, be adding to that growth. We would simply be applying the law within its existing limits. The N threshold has been modified by Paposhvili and AM (Zimbabwe) and it is that less exacting, but nevertheless very high, test that we must apply.

Second, there is something more significant afoot. Article 3 jurisprudence has long travelled uncomfortably on twin tracks. “Paradigm” cases involved the intentional infliction of harm by a state or non-state actor, for which a real risk of ordinary breach would suffice. For “non-paradigm” exceptions, including “near-death” medical claims and the most extreme humanitarian circumstances, the much higher N threshold applied. Limited branch lines out of N were gradually laid with ad hoc judicial justifications: MSS v Greece (a destitution claim not subject to N because of an EU country’s special obligations to asylum seekers, or Sufi & Elmi where humanitarian circumstances were said to flow from the consequences of armed conflict and thus fell within the “spirit” of paradigm Article 3). 

Now the tracks are arguably beginning to converge. The Upper Tribunal reasons:

53. In all of the cases to which we have been referred, whether they are about poverty, or a lack of palliative care, or homelessness, the ‘living instrument’ approach has enabled the ECtHR to focus not on the fact that the suffering endured by the claimants is socio-economic in nature, but on the suffering itself, and in particular its assault on the human dignity of the individuals concerned…

55. Having had regard to this jurisprudence we are unable to accept the Secretary of State’s submission that cases concerned with material deprivation are necessarily at the very outer limits of Convention protection and should accordingly be subject to the most stringent of standards, the unmodified N test. Strasbourg has already in a variety of contexts recognised rights which, although ostensibly socio-economic in nature, arise in situations fundamentally concerned with human dignity and so capable of engaging Article 3. As the decision in Bouyid makes clear, this approach is consistent not only with the object of the Convention itself, but with the wider humanitarian purpose of human rights law as a whole… We are unable to accept the proposition that material deprivation cases are a tenuous ‘extension’ of the health cases at all:  on the contrary, we find them to be growth on the same branch.

The Home Office’s position, unambiguously rejected in Ainte, was that “Paposhvili was squarely a ‘medical treatment’ case and there is no reason to construe it as having any broader implications”. Likewise, when the Court of Appeal heard AM (Zimbabwe) in 2018, Lord Justice Sales parsed the Strasbourg text as narrowly as possible: “the Grand Chamber [in Paposhvili] only intended to make a very modest extension of the protection under Article 3 in medical cases”. 

That reading did not survive the Supreme Court and looks ever more out of date.

Somalia country guidance imminent

No doubt the Secretary of State will seek to relitigate the point at some stage (and Lord Sales now sits in the Supreme Court…). In the meantime, this judgment may influence the forthcoming country guidance decision on Somalia, which was heard in June 2021. The judges on that panel will be aware of their colleagues’ position in Ainte.

As for the existing country guidance in MOJ & Ors (Return to Mogadishu) (Rev 1) (CG) [2014] UKUT 442 (IAC), the Upper Tribunal has at least reminded immigration judges that, so long as there is a sufficiently individualised assessment of an appellant’s prospects in Mogadishu, allowing an appeal on the basis of Article 3 is not to be impugned. Judges should look to the objective consequences of removal and apply AM (Zimbabwe).

There are reasons for pessimism, though. What the Upper Tribunal gives with one hand, it can take away with the other. While Ainte presents a progressive reading of the law, the tribunal nonetheless dismissed the appeal against removal to Somalia on the facts, finding that Mr Ainte was not reasonably likely to find himself among the city’s desperate internally displaced persons. If judges raise the evidential bar in practice, even a “modified” N test may rarely be met.

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Taimour Lay

Taimour is a barrister at Garden Court Chambers specialising in refugee and immigration law. He previously spent 10 years as a journalist and has reported from East Africa and Somalia.