Establishing a breach of Article 3 in medical cases: The ‘applicability’ of Strasbourg jurisprudence (update)
Following my earlier blog post on the case of EA, the CA last week handed down its judgment in AM (Zimbabwe) v SSHD, providing some further guidance on the approach of domestic courts to the Strasbourg Grand Chamber decision in Paposhvili. The upshot of the CA’s determination is twofold: (1) it confirms that the test set out in Paposhvili does relax the test for violation of Article 3 ECHR in cases of removal of a foreign national with a medical condition (albeit only to a ‘very modest’ extent); but (2) pending a decision by the Supreme Court the strict approach in N v SSHD remains binding on domestic courts.
AM and HN
By the time the appeal was heard by the CA, there were only two joined cases, with the original lead case, NG(Morocco), (which notably had the strongest facts) no longer forming part of the appeal. AM was a Zimbabwean national who was HIV-positive. His condition was controlled by anti-retroviral treatment he received in the UK. The evidence was that anti-retrovirals would be available to him in Zimbabwe, but not the one he currently received. HN was a Jordanian national who had been successfully treated for cancer in Jordan, but had suffered a relapse after coming to the UK where he was treated successfully using stem cell transplantation. He was concerned that if returned to Jordan he might suffer a further relapse, and that the treatment available to him in Jordan would not be as good. Both appellants conceded (1) that they could not bring themselves within the test laid down in N v SSHD (Sales LJ commented ‘both of them are very far from being able to do so’); and (2) that the CA should not itself apply the modification of the test set out in Paposhvili, as it was contrary to binding domestic precedent. Both appellants therefore endorsed the approach of the UT in EA, and argued that the CA should dismiss their appeals but with a view to granting permission to apply to the SC.
It was therefore open to the CA to say nothing on the exact scope of the Paposhvili test, however Sales LJ considered that it was appropriate to give ‘authoritative guidance’ which should be adopted by lower courts to determine whether a stay of removal should be granted in respect of an applicant arguing that their case was covered by Paposhvili. Sales LJ confirmed that the test for breach of Article.3 has been relaxed by Paposhvili, although ‘only to a very modest extent’:
‘…In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely “rapid” experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.’
The importance of the CA judgment lies in its indication that lower courts must seriously consider whether this test is met, and that, if so, then it will be appropriate to grant a stay of removal pending a determination by the SC. Conversely, if the evidence is insufficient to meet this threshold, then the Article 3 claim should be dismissed. From a practitioner’s perspective, this means it remains of vital importance to gather strong, cogent medical evidence regarding the likely impact of removal on the individual from the earliest stages of the case. This is important because Sales LJ recalled that once sufficiently credible evidence has been put forward, Article 3 imposes a procedural duty on the Home Office and the courts to consider it (indeed, it was this procedural duty which was violated by the Belgian authorities in Paposhvili).
A case for the Supreme Court
Sales LJ affirmed that it was highly desirable for the SC to address the issue of the impact of Paposhvili on domestic law, but expressed doubt that either AM or HN were ‘ideal as vehicles’ for the exercise. It therefore remains to be seen when a case with sufficiently strong facts to be granted permission to appeal to the SC will arise. When it does, a further question will be whether the CA’s restrictive interpretation of Paposhvili will itself be upheld.