MM (Zimbabwe) v Secretary of State for the Home Department

The Convention does not require a state to provide a person liable to deportation with medical treatment unavailable in the receiving country. That principle applies under both articles 3 and 8. The health consequences of removal may nevertheless engage article 8 where the circumstances are sufficiently strong.

In a deportation justified by the prevention of crime, the proportionality assessment must examine the practical risk of reoffending. Where mental illness was central to the offending, and treatment and family support would reduce that risk to a minimal level, the prognosis and protective support are powerful factors. Medical treatment abroad may then be relevant as part of an established private life, rather than through a direct comparison between national healthcare systems.

The appellant, a Zimbabwean national with indefinite leave to remain, had committed serious offences and suffered from schizophrenia. The Secretary of State decided under section 3(5)(a) of the Immigration Act 1971 that his deportation was conducive to the public good.

The Asylum and Immigration Tribunal allowed his appeal under article 8. It accepted that treatment and family support in the United Kingdom gave him an excellent prognosis, whereas removal would cause serious deterioration. On reconsideration, the Upper Tribunal rejected the article 8 claim, emphasising the impermissibility of comparing healthcare provision and the absence of current evidence.

The appellant appealed against that determination. The central issues were the proper relevance of medical treatment under article 8 and whether the Upper Tribunal had adequately assessed the prognosis, the relationship between illness and offending, and the resulting risk of reoffending.

1. Appeal allowed unanimously. The Upper Tribunal's determination was quashed. The appeal was remitted to the Upper Tribunal (Immigration and Asylum Chamber) for a further hearing confined to proportionality, with an opportunity for both parties to provide current evidence.

2. The Convention imposes no obligation on a contracting state to provide a person liable to deportation with medical treatment which is unavailable in the receiving country. The principle established in N v Home Secretary [2005] 2 AC 296 and N v UK [2008] 47 EHRR 885 applies to article 8 as well as article 3. The original tribunal therefore erred by basing its decision on a comparison between healthcare in the United Kingdom and Zimbabwe.

3. Article 8 may nevertheless be engaged by the foreseeable health consequences of removal where the facts are sufficiently strong. A lack of adequate treatment abroad may be weighed as an additional factor where family ties, dependence upon relatives and clinicians, medication, and community care already establish private life. That approach considers the effect of removing an established support structure. It does not impose a free-standing obligation to remedy deficiencies in another country's healthcare system.

4. The stated purpose of deportation was the prevention of disorder or crime. The proportionality assessment therefore required close consideration of the practical risk posed by the appellant. Although deterrence and public disapproval remained relevant, the weight attributable to past offending depended on its seriousness and all the circumstances.

5. The evidence that schizophrenia was pivotal or central to the offending was unchallenged. The psychiatric evidence also indicated an excellent prognosis, and no realistic risk of further offending, while medication, clinical care and family support continued. A finding that the remaining risk was minimal would be a powerful factor against the proportionality of deportation.

6. The Upper Tribunal concentrated on comparative healthcare provision and failed to reach a clear conclusion about how the prognosis and the relationship between illness and offending affected the risk of reoffending. That omission was a material misdirection in the article 8(2) balancing exercise. The long delay and absence of evidence after April 2008 made a fresh, confined hearing appropriate.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The Upper Tribunal's determination was quashed and the matter remitted for a further hearing confined to proportionality: [2012] EWCA Civ 279.

2. Upper Tribunal (Immigration and Asylum Chamber): On reconsideration, Senior Immigration Judge Jarvis held that removal would breach neither article 3 nor article 8. The article 3 conclusion was not challenged in the Court of Appeal.

3. Asylum and Immigration Tribunal: The tribunal allowed the appellant's appeal. It found that deportation would disproportionately interfere with his private life because of his illness, dependence upon treatment and support, low risk to the public, and the severe likely effect of removal.