When is it a breach of Article 3 to remove someone with a severe, possibly terminal, medical condition to a country where they will not receive the care they need? When they’re days away from death? When it will halve their lifespan? What level of pain is required? What constitutes inhuman and degrading treatment?

The answers to these questions cry out for some humanity, but the history of medical Article 3 cases has instead been cruel and dispiriting. In EA & Ors (Article 3 medical cases – Paposhvili not applicable) [2017] UKUT 445 (IAC) the Upper Tribunal keeps even the glimmer of hope offered us by the European Court of Human Rights in Paposhvili v Belgium out of reach by declining to apply that decision.

What that means for practitioners is that it remains the case that medical Article 3 cases can only succeed if they are deathbed cases as described by Lady Hale in N v Secretary of State for the Home Department.

Any application that does not disclose facts similar to those found in D v United Kingdom remains liable to be certified as clearly unfounded. Likewise, it remains the case that applications that will fail under Article 3 will also fail under Article 8 in this context.

Past medical cases under Article 3

In D v UK (application no. 30240/96) Strasbourg, faced with the appalling situation of an AIDS sufferer in the final stages of terminal illness being deported to St Kitts where they would receive no medical care and had no family support, declared these to be “very exceptional” circumstances that engaged the UK’s Article 3 obligations.

In N v SSHD [2005] UKHL 31 the House of Lords was handed the unenviable task of deciding why the circumstances in D were so exceptional and whether they applied to N who also suffered from AIDS but was not in the terminal stages of that illness. The Lords decided that there was no free-standing Article 3 right to medical care. Even “an early death after a period of acute physical and mental suffering” (Lord Hope, paragraph 20) was still not sufficient to engage Article 3. It was only engaged in “deathbed: cases:

In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity [Lady Hale, paragraph 69].

In N v UK (application no. 26565/05), Strasbourg did not disagree. Indeed, it somewhat distastefully suggested that Article 3 was subject to some sort of floodgates test as to the “burden” on member states.

Contributors to this blog have written before about the tragedy of this line of case law. It means that people with HIV/AIDS, like N, can be removed from top class treatment in the UK (with which they could live a relatively normal life) to face a slow and painful death abroad with a substantially shortened lifespan.

But then in Paposhvili (application no. 41738/10), decided late last year, the Grand Chamber looked again at what was meant by the “very exceptional circumstances” referred to in D v UK. The court suggested that it went further than the 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.

When the Grand Chamber handed down its judgment in Paposhvili it seemed that the UK would have to revisit the very tight definition of exceptional circumstances in the previous cases.

Why then does this decision by the Upper Tribunal provide no such relief?

The decision in EA

A misunderstanding of Pinnock?

The Upper Tribunal quotes Lord Neuberger in Manchester City Council v Pinnock [2011] UKSC 6:

The HRA requires our courts to “take into account” ECtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.

It then rephrases Lord Neuberger’s statement thus:

It is, therefore, a somewhat limited duty to comply with the ECtHR at least on the part of the Supreme Court. It suggests that the ECtHR must be followed (‘would be wrong not to follow’) but only if it is consistent with United Kingdom law. It raises the question of whether there is the need to follow the ECtHR, if the principle is already enshrined in the United Kingdom’s domestic law.

On one view, this is a rather radical rephrasing of the principle in Pinnock.

The misunderstanding is made clear by that last phrase “if the principle is already enshrined”. Arguably Lord Neuberger was not saying that the Supreme Court need only follow Strasbourg if English law was already compliant with it. He was saying that it would be wrong not to follow Strasbourg unless what Strasbourg was asking the Supreme Court to do was fundamentally inconsistent with basic principles of English law, or was based on a misunderstanding of the same. The Upper Tribunal may have created a more restrictive test for itself than that required by Pinnock.

Paposhvili not applied

In any case, having stated its interpretation of the principle in Pinnock, the tribunal went on to consider whether Paposhvili is:

1. Part of a clear and constant line of decisions; and
2. Consistent with UK domestic law.

It concluded that Paposhvili departs from the previous Strasbourg jurisprudence, rather than being an elucidation of it.

The tribunal relied on the Strasbourg court’s conclusion at paragraph 181 of its Paposhvili judgment that the case law since N v UK had deprived “aliens who are seriously ill, but whose condition is less critical, of the benefit of [Article 3]”. Strasbourg went on to say that it was going to clarify its approach in order to ensure that rights are practical and effective, rather than theoretical and illusory.

This could equally be interpreted as Paposhvili simply expanding upon the meaning of those other “very exceptional” circumstances referred to in D v UK, which N v UK did not really touch upon. However, the Upper Tribunal concluded that this is more than clarification or elucidation; it is a break from a “clear and constant” line of decisions.

Then the UT decided that to apply any part of the test in Paposhvili would be to break with the binding domestic precedent set by the Court of Appeal in GS (India) v SSHD [2015] EWCA Civ 40. GS (India), the judges said, permits no expansion of the “deathbed test”. Therefore, bound as they are by domestic precedent, they were unable to apply the broader test suggested by Strasbourg.

The status quo stands, pending an appeal

The Upper Tribunal has indicated it will grant permission to appeal, and the higher courts will perhaps be less inclined to constrain themselves by the issues that have so exercised the tribunal. For now, however, things remain as they were. The UT has not taken the opportunity it had to read Paposhvili into its definition of “very exceptional circumstances” and so it remains the case that only deathbed cases are likely to succeed. In practical terms, there is still very little chance of relief under Article 3 for those suffering from severe medical conditions and facing removals.

Practitioners should continue to make applications which provide detailed evidence in relation to the medical needs of the individual and whatever objective evidence that can be found as to the practical medical and familial assistance the individual can hope to receive in the receiving state. The Upper Tribunal has ducked it, but the higher courts will undoubtedly have to consider what account to take of Paposhvili at some future date.