Establishing a breach of Article 3 in medical cases: The ‘applicability’ of Strasbourg jurisprudence
In EA & Ors (Article 3 medical cases – Paposhvili not applicable)  UKUT 00445, the Upper Tribunal (Immigration and Asylum Chamber) refused to follow the most recent Strasbourg caselaw regarding the test for a breach of Article 3 ECHR in medical removal cases, finding that it was inconsistent with domestic precedent.
The ‘deathbed test’
In D v UK the ECtHR held that the deportation of the appellant, who had terminal AIDS, to St Kitts where he would receive no medical or family support were ‘very exceptional’ circumstances engaging Article 3. In N v SSHD, the UK HL found that the ‘D exception’ only applied in ‘deathbed’ cases: ‘it was the fact that he was already terminally ill while still present in the territory of the expelling state that made his case exceptional.’. Although in N v UK the Strasbourg Grand Chamber agreed that the particular appellant’s removal would not be in breach of Article 3, it made clear that there could be ‘very exceptional’ circumstances other than a deathbed case, where the ‘humanitarian considerations are equally compelling’ such that removal would breach Article 3 (but without going further by suggesting what these could be). However, regrettably, in GS(India) the Court of Appeal followed the N v SSHD reasoning, endorsing the strict deathbed test as being the only circumstance in which a medical condition could engage Article 3, without reference to the possibility of other exceptional circumstances which had been left open in N v UK.
Paposhvili and EA
Paposhvili concerned the removal of a Georgian national suffering from chronic lymphocytic leukaemia and tuberculosis. The Grand Chamber stated that it was appropriate to clarify the ‘other very exceptional cases’ within the meaning of N v UK as applying where a person, although not at imminent risk of dying, would face a real risk of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or reduced life expectancy.
EA concerned the appeals of three applicants suffering from schizoaffective disorder; HIV / AIDS and ankylosing spondylitis. All were receiving treatment in the UK but none were at a critical stage. The UT had to consider whether to apply the Paposhvili test, in light of its duty under s.2(1) of the HRA to ‘take into account any judgment…of the ECtHR…relevant to the proceedings’. Relying on Manchester City Council v Pinnock, the UT concluded that:
‘It is…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 […] 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.’
The UT found that it was not bound to follow Paposhvili, because that test departed from a ‘clear and constant line of authority’ (including N v UK), and was not consistent with UK domestic law. Further, it considered that it was bound by the CA decision in GS(India).
This interpretation and application the s.2(1) HRA duty can be called into question in two ways. Firstly, the UT failed to consider the CA’s statement of principles in Hicks v Commissioner of Police of the Metropolis (which were not disapproved by the Supreme Court) which included that decisions of the Grand Chamber (such as Paposhvili) should be treated as authoritative unless they arise from overlooking some significant feature of English law which would make the judgment in question inapplicable to English circumstances. This is undoubtedly a stricter duty than that expounded by the UT.
Secondly, in finding that the Grand Chamber had departed from its own case law established in N v UK, the UT wholly disregarded the explicit recognition in N v UK (referred to in Paposhvili) that there could be compelling cases other than deathbed cases which breached Article 3.
Ultimately, the UT considered it was bound by domestic precedent to apply the strict test set by the CA in GS(India). An application for permission to appeal in EA has been stayed pending the decision of the CA in NG(Morocco), which is due to be heard later this month and will consider how the Paposhvili test is to be applied by domestic courts. It is to be hoped that soon, the Supreme Court will clarify both the application of Article 3 in medical removal cases, and what duty exactly s.2(1) HRA imposes on lower courts: may they find that an authoritative judgment of the Grand Chamber, which is undoubtedly relevant, is nonetheless ‘not applicable’ to the case before it?