The Secretary of State for the Home Department v EA & Anor

A tribunal must take decisions of the European Court of Human Rights into account, but it must follow binding domestic precedent. In medical-removal cases, the binding domestic rule confined the Article 3 exception to a person whose illness had reached the critical, deathbed stage identified in D and N.

The enlarged test stated in Paposhvili v Belgium was contrary to that binding rule and was therefore unavailable to the Tribunal. A health consequence which cannot meet Article 3 will ordinarily not establish Article 8 unless it is an additional factor alongside other matters independently engaging Article 8.

The joined proceedings concerned Afghan, Nigerian and Bangladeshi appellants who relied on serious mental or physical illness and the consequences of removal. The central preliminary issue was whether the Tribunal could apply the medical-removal test stated by the European Court of Human Rights in Paposhvili v Belgium.

The Secretary of State appealed in EA’s case. MO’s earlier First-tier Tribunal decision had already been set aside for error of law. Rashid and Ashrifin challenged findings concerning the Immigration Rules and Mr Rashid’s medical condition.

The Tribunal determined the effect of domestic precedent before deciding the appropriate disposal of the individual appeals.

1. The Tribunal held that the Paposhvili test could not be applied. Section 2(1) of the Human Rights Act 1998 required the Tribunal to take Strasbourg decisions into account, not necessarily to apply them. The domestic rules of precedent required it to follow binding Court of Appeal authority where that authority conflicted with a later Strasbourg decision.

2. GS (India) was binding. It established, on the Tribunal’s reading of the House of Lords authorities, that the D exception under Article 3 was confined to deathbed cases. Paposhvili v Belgium deliberately extended the earlier Strasbourg approach to seriously ill persons who were not imminently dying. That enlargement was not part of domestic law while the binding domestic precedent remained in force.

3. The First-tier Tribunal in EA’s case had assessed Article 3 solely by reference to Paposhvili and had not considered GS (India). That was a material error of law. The Secretary of State’s appeal was allowed, the decision was set aside, and EA’s appeal was remitted for remaking.

4. MO’s appeal was remitted for remaking. The prior Article 8 reasoning did not identify additional factors capable of carrying a health claim which could not succeed under Article 3.

5. The Tribunal recorded the Secretary of State’s concession that Ashrifin should have been granted leave under paragraph 10 of Appendix B to the Immigration Rules. The appeal of Rashid and Ashrifin was allowed under the Rules. The medical claim did not meet the high Article 3 threshold and could not otherwise succeed under Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): In [2017] UKUT 445 (IAC), the Tribunal set aside and remitted EA’s First-tier Tribunal decision, remitted MO’s appeal after an earlier error-of-law decision, and allowed Rashid and Ashrifin’s appeal under the Immigration Rules following the Secretary of State’s concession.
• First-tier Tribunal: EA’s appeal had been allowed on Article 3 grounds by applying Paposhvili v Belgium. MO’s decision had dismissed Article 3 but allowed Article 8. Rashid’s health claim had been rejected; Ashrifin’s appeal had been dismissed for failure to provide specified English-language evidence.