AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 17
- Summary
- Citing
- Cited By
AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 17 was an appeal before the Supreme Court which considered whether the appellant could rely on Article 3 of the European Convention on Human Rights to resist deportation on medical grounds, in light of the intervening judgment of the European Court of Human Rights Grand Chamber in Paposhvili v Belgium. The Supreme Court unanimously allowed the appeal and remitted the matter to the Upper Tribunal for reconsideration.
The appellant was a Zimbabwean citizen who arrived in the United Kingdom in 2000 and was granted indefinite leave to remain in 2004. Between 2005 and 2009 he accrued multiple convictions including for battery, assault, possession of bladed articles, possession of a firearm and ammunition for which he received seven years’ imprisonment, and possession of heroin with intent to supply for which he received two years consecutive. A deportation order was made in March 2007. The appellant is HIV positive, having been diagnosed in 2003. By 2012 he had begun antiretroviral therapy with Eviplera, which successfully maintained an undetectable viral load and raised his CD4 count. Medical evidence indicated that withdrawal of treatment would lead to a rising viral load, falling CD4 count, opportunistic infections and premature death. In 2013 the Secretary of State refused to revoke the deportation order. The appellant appealed to the First-tier Tribunal relying solely on Article 8, expressly declining to advance a claim under Article 3 because he accepted that N v Secretary of State for the Home Department [2005] UKHL 31 precluded such a claim. The First-tier Tribunal dismissed the appeal. The Upper Tribunal dismissed the onward appeal. Before the Court of Appeal, following the Grand Chamber’s decision in Paposhvili v Belgium [2017] Imm AR 867, the appellant abandoned Article 8 and sought to pursue Article 3, recognising that the House of Lords decision in N remained binding on the Court of Appeal. The Court of Appeal dismissed the appeal, holding that even on the Paposhvili approach the medical evidence did not cross the threshold. The appellant appealed to the Supreme Court.
Lord Wilson, with whom the other four Justices agreed, undertook a comprehensive review of the jurisprudence on Article 3 and medical removals. He traced the development from D v United Kingdom (1997) 24 EHRR 423, in which the European Court of Human Rights held that deportation of an applicant in the advanced stages of terminal AIDS, close to death, would violate Article 3, through to the House of Lords’ decision in N v Secretary of State for the Home Department. In the N case the House of Lords held that Article 3 was engaged only where the applicant’s illness had reached such a critical stage that he was dying, such that it would be inhuman to deprive him of current care and send him home to an early death unless there was care available to enable him to meet that fate with dignity. The Grand Chamber upheld that approach in N v United Kingdom (2008) 47 EHRR 39, maintaining the high threshold set in the D case. The position was reconsidered in Paposhvili v Belgium, where the Grand Chamber stated that the approach required clarification. It held that “other very exceptional cases” could arise under Article 3 involving removal of a seriously ill person in which substantial grounds were shown for believing that, although not at imminent risk of dying, he or she would face a real risk, on account of absence of or lack of access to appropriate treatment in the receiving country, of being exposed to a serious, rapid and irreversible decline in health resulting in intense suffering or to a significant reduction in life expectancy. Lord Wilson emphasised that this remained a high threshold for the application of Article 3.
The Supreme Court rejected the Court of Appeal’s interpretation of the effect of Paposhvili. Sales LJ in the Court of Appeal had characterised the Grand Chamber’s decision as reflecting only a “very modest” extension, holding that it meant cases where the applicant faced a real risk of rapidly experiencing intense suffering or death within a short time in the receiving state. Lord Wilson held that this interpretation was flawed. The Court of Appeal had wrongly translated the phrase “significant reduction in life expectancy” as “imminence of death” by a series of interpretive steps not warranted by the text. The Grand Chamber had addressed exposure to a serious, rapid and irreversible decline in health resulting in intense suffering or to a significant reduction in life expectancy, not intense suffering or in a significant reduction in life expectancy. The word “significant” must be read in context: it takes its colour from the context of inhuman treatment and the alternative limb of serious, rapid and irreversible decline resulting in intense suffering. In that context “significant” means substantial and the reduction must attain the minimum level of severity required by Article 3. A reduction to death in the near future was more likely to be significant than other reductions, but the assessment was fact-sensitive and contextual.
Lord Wilson also addressed the procedural requirements identified by the Grand Chamber in Paposhvili. The basic principle that the person asserting a breach must establish it had been modified. The threshold for an applicant was to adduce evidence capable of demonstrating that there are substantial grounds for believing that Article 3 would be violated, which meant raising a prima facie case. If that threshold was crossed, the returning state was obliged to dispel any serious doubts by close scrutiny, including verifying on a case-by-case basis whether care generally available in the receiving state was sufficient in practice and whether it was accessible to the particular applicant having regard to cost, family network and geography. If serious doubts persisted, the returning state had to obtain individual assurance from the receiving state. Lord Wilson emphasised that the threshold remained demanding, requiring substantial grounds of a very exceptional case involving a real risk of inhuman treatment.
The Supreme Court held that the decision in the N case should no longer be followed. The decision in Paposhvili represented a principled development of the jurisprudence, addressing concerns about the logical coherence of restricting Article 3 to cases of imminent death in the returning state that had been expressed by the House of Lords itself 15 years earlier. The court declined to assess whether the medical reports in the present case crossed the Paposhvili threshold, because those reports had been prepared more than five years previously to support an Article 8 claim and did not address the substantive and procedural requirements now established. It would be inappropriate to extract them from the wider evidence and evaluate them against criteria that did not exist when they were written. The proper course was to remit the matter to the Upper Tribunal so that the appellant’s proposed claim under Article 3 could be heard on up-to-date evidence properly directed to the Grand Chamber’s requirements.
In short, the Supreme Court allowed the appeal, departed from N v Secretary of State for the Home Department, adopted the approach in Paposhvili v Belgium with a wider interpretation than that adopted below, and remitted the Article 3 claim for fresh consideration by the Upper Tribunal on updated evidence addressing the substantive and procedural tests.
Paposhvili v Belgium [2017] Imm AR 867
Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465
Savran v Denmark [2019] ECHR 651
AXB v Secretary of State for the Home Department [2019] UKUT 00397
Hallam; Nealon v Secretary of State For Justice [2019] UKSC 2, [2020] AC 279