In the age of Covid-19, the Supreme Court handed down the realistic approach for Article 3 claims in AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) [2020] UKSC 17 following Papishvili v Belgium [2017] Imm AR 867. The walk towards this judgement is lengthy and complex as it dates back to D v United Kingdom [1997] ECHR 25
The appellant, “AM” is a Zimbabwean born in 1987. He arrived in the UK in 2000 and later granted indefinite leave to remain. AM was convicted of offences including possession of a firearm and ammunition and receiving a 7 years sentence. He later fell within the mandate of Section 32(5) of the UK Borders Act 2007 as a foreign criminal. Appealing this deportation order AM argued his rights under Article 8 of the Convention and his positive diagnose on HIV Aids. Despite the evidence provided on the drugs consumed for AM to control the diagnose without significant side effects and the lack of treatment in Zimbabwe, the Secretary of State refused to revoke his deportation order.
AM then appealed to the First-tier Tribunal and further to the Upper Tribunal relying solely on his rights under Article 8 as the hurdle for N v SSHD [2003] EWCA Civ 1369 under Article 3 was too high to overcome. Both tribunals dismissed AM’s appeal under Article 8.
In D v UK the European Court of Human Rights (“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 House of Lords examined the position of an AIDS sufferer being removed to Uganda where inferior treatment to N was receiving in the UK would be available and found that the ‘D exception’ only applied in ‘deathbed’ cases. Lady Hale at paragraph 69 held that:
“In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity”
This decision was later appealed to Strasbourg. Following D v United Kingdom, 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. It further found that for ill-treatment to fall within the scope of Article 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.
AM later appealed to the Court of Appeal drifting from his reliance on Article 8 to Article 3 following the judgement at the Grand Chamber of the ECtHR in Paposhvili. However, the Court of Appeal was bound to follow the House of Lord’s decision in N v SSHD under the doctrine of precedence. AM then appealed to the Supreme Court seeking a departure from the decision in N v SSHD by reference to the judgment in the Paposhvili and a remittal with reference to Article 3.
Pasposhvili was known as the case that lowered the hard-hearted threshold in N v UK. In the case of Paposhivil, Strasbourg reconsidered its position in N v United Kingdom who was a Georgian national born in 1958. He lived in Brussels and died there on 7 June 2016. On 20 June 2016 the applicant’s family, expressed the wish to pursue the proceedings before the Court. Paposvili facing removal due to criminal activity in Belgium, suffered from leukaemia and recurrent tuberculosis which had caused lung disease. The Grand Chamber found that there would have been a violation of Articles 3 and 8 of the Convention if the applicant had been removed to Georgia without the Belgian authorities having assessed the risk faced by him/ impact of his removal in the light of the information concerning his state of health and the existence of appropriate treatment in Georgia.
During this hearing, the Court highlighted that since D v United Kingdom and N v United Kingdom, an extremely high threshold (exceptional circumstances) has been set when applying Article 3 to seriously ill persons, covering only those close to death by the provision.
The AM appeal was allowed remitting the matter to the Upper Tribunal. Lord Wilson giving an analysis on the judgement stated that, for it was 15 years ago, in the N case that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart. [para 34 of AM]
Lord Wilson further pointed out the following procedural requirements in article 3 claims following;
“(a) In that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3; [para 186]
(b) In that, where such evidence was adduced in support of an application under article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state; [para 187]
(c) In that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to article 3; [para 189]
(d) In that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; [para 190 ] and
(e) In that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant.” [para 191]
The outcome of Paposhvili and AM is clear that in the many cases to follow the appellant is not obliged to present clear proof that they would be exposed to proscribed treatment as there is a great burden on the State obliging them to alleviate the disparities between the health-care system and the level of treatment available in the third country concerned. Despite the positive outcome for AM, there is still question on the effectiveness of the State’s reinterpretation on these procedural requirements amidst the panic on Covid-19.
Shankhanie Samarakoon
David Benson Solicitors