The Supreme Court held that article 3 of the European Convention on Human Rights may prevent the deportation of a seriously ill person who is not already close to death, where removal would create a real risk of a serious, rapid and irreversible decline in health resulting in intense suffering or a substantial reduction in life expectancy because appropriate treatment would be unavailable or inaccessible. Departing from the House of Lords decision in N in light of the Grand Chamber judgment in Paposhvili, the court required the appellant’s claim to be considered afresh.
AM challenged a deportation order. Earlier proceedings had focused on article 8 because binding domestic authority had made a medical claim under article 3 appear untenable.
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Medical evidence indicated that treatment in the UK kept AM’s condition stable. The concern was whether appropriate treatment would actually be available to him after removal and what would happen if it was interrupted. The medical reports had not been prepared to address the test subsequently explained in Paposhvili.
Before the First-tier Tribunal and the Upper Tribunal AM relied only on article 8. His counsel conceded that, because of the House of Lords decision in N, an article 3 claim could not succeed. The First-tier Tribunal judge nevertheless recorded, for the avoidance of doubt, that AM was not at a critical stage of his illness and that the evidence did not show the high threshold for article 3 to be reached.
Paposhvili and the Court of Appeal
After the Grand Chamber decided Paposhvili v Belgium, AM abandoned article 8 and sought to advance an article 3 claim. He accepted that the Court of Appeal remained bound by N, so his appeal had to fail at that level. Sales LJ, with whom Patten and Hickinbottom LJJ agreed, dismissed the appeal. He also read Paposhvili as making only a very modest extension: protection moved from imminent death in the removing state to the likely rapid experience of intense suffering, or death within a short time, in the receiving state because treatment available here would be unavailable there.
Lord Wilson, with whom Lady Hale, Lady Black, Lady Arden and Lord Kitchin agreed, traced the case law. In D v United Kingdom the applicant was close to death from AIDS; the violation lay in the inhumanity of removing him, in effect, from his deathbed to a place where no care was available. In N the House of Lords held that a person whose condition had been stabilised by treatment in the United Kingdom, but who would face a bleak prognosis on return, did not meet the test. The illness had not reached the critical stage of dying, so removal was not inhuman treatment. The Grand Chamber later rejected the same claim, while referring to other very exceptional cases in which humanitarian considerations might be equally compelling. In Paposhvili the Grand Chamber said that those cases include the removal of a seriously ill person where substantial grounds have been shown for believing that, although death is not imminent in the returning state, he or she would face a real risk, through the absence or inaccessibility of appropriate treatment, of a serious, rapid and irreversible decline resulting in intense suffering or of a significant reduction in life expectancy.
What “significant” means
The Supreme Court held that the Court of Appeal had taken too great a leap. The Grand Chamber’s words attach “rapid” to the decline resulting in intense suffering, not to the reduction in life expectancy. A significant reduction cannot be rewritten as imminent death. In the context of inhuman treatment, and set beside intense suffering, “significant” means substantial. Whether a reduction is substantial may depend on the person concerned. A fall in life expectancy to two years might well not be significant for someone aged 74 with a normal expectancy for that age, but might well be significant for someone aged 24.
Paposhvili also explained the procedure. The applicant must produce evidence capable of demonstrating substantial grounds for believing that removal would create a real risk of treatment contrary to article 3. The parties accepted that this is a prima facie case: one which, if not challenged or countered, would establish the infringement. It is not an undemanding threshold. The evidence must be capable of showing a very exceptional case and a real risk of inhuman treatment. If that standard is met, the returning state must examine the risk closely, check whether care generally available in the receiving state is in practice sufficient to prevent a breach, and consider whether it is accessible to the particular applicant, including its cost, any family network and its location. If serious doubts remain, an individual assurance should be sought from the receiving state. A reference to dispelling “any” doubts means any serious doubts, not proof beyond all doubt.
The Secretary of State did not actively ask the Supreme Court to refuse to follow Paposhvili if it rejected the Court of Appeal’s narrow reading. The court saw no highly unusual circumstances justifying such a refusal. The House of Lords in N had itself questioned the logic of confining article 3 to early death already in prospect in the returning state. The court therefore departed from N.
Why the existing medical evidence could not decide the appeal
The two medical reports had been written more than five years earlier for an article 8 claim. They did not address a test which did not then exist. It was wrong to lift them out of the other article 8 evidence and ask whether they crossed the Paposhvili threshold. The Court of Appeal’s view that they were insufficient depended on its incorrect reading of that threshold. The Supreme Court therefore declined to decide whether those reports would now be enough.
Verdict: The Court unanimously allowed the appeal and remitted the proposed article 3 claim to the Upper Tribunal for determination on current evidence. It did not decide whether AM’s removal would itself breach article 3.
Source: AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17
