UK Supreme Court Relaxes the Test for Establishing a Breach of Article 3 in Medical Removal Cases

by | May 3, 2020

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About Julia Lowis

Julia Lowis is a barrister practising in public law (including immigration and asylum) and international human rights at 3 Hare Court and was called to the Bar of England and Wales in 2013. She holds a First Class law degree and Mst in International Human Rights Law with Distinction from the University of Oxford. She is a member of the Equality and Human Rights Commission’s (EHRC) approved panel of counsel.


Julia Lowis, “UK Supreme Court Relaxes the Test for Establishing a Breach of Article 3 in Medical Removal Cases”, <>, [Date of access].

On 29 April 2020, the UK Supreme Court handed down its judgment in the case of AM(Zimbabwe) v SSHD [2020] UKSC. This completes the domestic line of authority grappling with the ECtHR’s Grand Chamber’s judgment in Paposhvili v Belgium, which reformulated the applicable test where appellants allege that their proposed removal to a third country would be in breach of Article 3 ECHR as exposing them to inhuman or degrading treatment as a result of the unavailability of medical treatment there.

The background to the case and the European and domestic jurisprudence considered in it is set out in my earlier blog posts concerning EA in the Upper Tribunal and AM in the Court of Appeal.

AM’s appeal

Despite the scathing comments of Sales LJ in the CA regarding the apparent merits of his case, the SC considered that this was an appropriate vehicle for re-consideration of the ‘deathbed test’ which has been applied by domestic courts since the cases of D v UK (1997) and its slight modification in N v UK (2008).

Practically, the most important element of the Court’s unanimous decision (delivered by Lord Wilson) is that the test laid out by the Grand Chamber at para [183] of Paposhvili did expand the scope of Article 3 beyond that set out in N v UK. Para [22] of Lord Wilson’s judgment tacitly approves of the expansion, acknowledging the Convention as a living instrument, but he rebukes the Court for shying away from squarely acknowledging this:

‘The Convention is a living instrument and when, however appropriately, the ECtHR charts its growth, it may generate confusion for it to claim to be providing only clarification.’

Having analysed para [183] of Paposhvili, the SC concludes that the applicable test now requires an applicant to establish that removal to the receiving state would result either in (i) a ‘substantial’ reduction in life expectancy, or (ii) ‘a serious, rapid and irreversible decline in…health resulting in intense suffering.’ The applicant does not need to show that either intense suffering or death will be imminent in the receiving state. However, the threshold remains a ‘demanding’ one, and the applicant bears the evidential burden of showing: ‘“substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment.’

Following Strasbourg jurisprudence

Somewhat surprisingly, the SSHD didn’t argue that if the Paposhvili test was wider than that in N v UK, the SC should decline to adopt it. It is clear from Lord Wilson’s judgment (para [34]) that both domestic and European judges have for some time felt uncomfortably constrained by the extremely restrictive straitjacket imposed by D and N (see Lady Hale’s comments in Nv SSHD), and that the SC welcomed a relaxation of that test some 15 years later. As a result, however, the SC dealt only briefly with the relationship between domestic courts and Strasbourg, recalling that the SC will only decline to follow Strasbourg in ‘highly unusual circumstances’ (see R(Hallam) and R(Nealon) v SSJ [2019] UKSC2, where Lord Wilson described the relevant line of ECtHR jurisprudence as ‘not just wrong but incoherent’). That may be so, but it leaves open the question raised in my blog post on EA as to how lower domestic courts (such as the First-Tier and Upper Tribunals) are to apply their duty under s.2(1) HRA to take into account relevant Strasbourg jurisprudence where this has moved the law forward. Put simply, should the UT in EA have felt emboldened to apply a looser Article 3 test, without a case going all the way to the SC?

What now?

For AM, the most relevant matter is that his appeal was allowed and the case has been remitted to the Upper Tribunal for fact-finding, applying the more generous test to up-to-date medical evidence. If he can discharge the evidential burden above, it is for the SSHD to rebut any serious doubts, for now following the procedural steps set out in Paposhvili. However, the SC was hopeful that better specific guidance will be given by the Grand Chamber in Savran v Denmark, another Article 3 case which is currently pending before it (and in which the UK has applied to intervene).

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