MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department

In medical-removal cases under European Convention on Human Rights article 3, protection is not confined to imminent death. It may extend to a real risk of serious, rapid and irreversible decline causing intense suffering or a significant reduction in life expectancy where appropriate treatment is unavailable or inaccessible. Once serious doubts arise, the state must investigate and obtain assurances where necessary. On appeal, an error in reasoning is insufficient unless the decision below is wrong. Material factual issues may be remitted to a tribunal before permission to appeal is considered.

Two Malawian nationals challenged the refusal of leave to remain on human rights grounds. The First-tier Tribunal allowed the appeals, including on article 3 medical grounds. The Upper Tribunal allowed the Secretary of State’s appeal and remade the decision, dismissing the appeals.

The applicants sought permission to appeal, arguing that the Upper Tribunal had applied the wrong medical-removal test and placed the burden of proof incorrectly. The Court of Appeal considered the effect of Paposhvili, the admission of further evidence, and whether factual findings were required concerning the availability of ingestible antiretroviral treatment in Malawi and its likely effect on the first applicant’s health.

1. Disposition. The Court did not finally determine whether removal would breach article 3. It remitted factual issues to the Upper Tribunal and formally adjourned the application for permission to appeal to the Court of Appeal.
2. Applicable framework. The pre-existing test in N v Secretary of State for the Home Department remained binding on courts below the Supreme Court unless and until changed domestically. Paposhvili v Belgium represented a modest extension of article 3 protection beyond imminent-death cases. It also recognised that, once serious doubts arise, the state bears the relevant evidential burden and has a procedural duty to make enquiries or obtain assurances. The applicants accepted that the N test was not met, but the Paposhvili test was arguable.
3. Correctness of the decision below. Under Civil Procedure Rules 1998 rule 52.21(3), an appeal could be allowed only if the Upper Tribunal’s conclusion was wrong. Even if its analysis was erroneous, the appeal could not succeed unless the result itself was wrong.
4. Need for further findings. Two related factual questions required determination: what ingestible antiretroviral drugs would be available in Malawi, and what effect removal, in light of that treatment, would have on the applicant’s health. Those issues could affect both the correctness of the decision and whether any proposed Supreme Court appeal would concern a live issue.
5. Remittal and evidence. The power under Civil Procedure Rules 1998 rule 52.20(2)(b) to refer an issue to the lower tribunal was not subject to particular requirements. The Upper Tribunal was the appropriate forum because of its experience. The Court permitted the Secretary of State to rely on new evidence under rule 52.21(b), allowed further evidence on remittal, and directed that the tribunal approach the factual questions with an open mind and without any indication of the proper outcome.

• Court of Appeal (Civil Division): In [2018] EWCA Civ 1365, the application for permission to appeal was adjourned and factual issues were remitted to the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Woodcraft allowed the Secretary of State’s appeal from the First-tier Tribunal and remade the decision dismissing the appeals.
• First-tier Tribunal: First-tier Tribunal Judge Walters allowed the appeals, including on article 3 medical grounds.