MI (Palestine) v Secretary of State for the Home Department

In an Article 3 removal case involving severe humanitarian conditions and personal vulnerability, the court must identify the correct legal approach and assess the relevant factors cumulatively. The exceptional medical-removal test in N applies where the feared deprivation is attributable to natural illness and inadequate resources in the receiving state. It is not automatically applicable where a humanitarian crisis is predominantly attributable to the direct or indirect actions of parties to a conflict. In that situation, the court must consider matters such as the applicant’s ability to meet basic needs, vulnerability to ill-treatment and the prospect of improvement within a reasonable time. Country guidance must also be assessed against materially changed conditions. The appeal was allowed and remitted for reconsideration.

The appellant, a Palestinian from Gaza, claimed asylum after arriving in the United Kingdom. His claim was refused, and the First-tier Tribunal dismissed his appeal, finding his account of persecution not credible. The Upper Tribunal found an error of law in the First-tier Tribunal’s treatment of Article 3, but, on remaking the decision, dismissed the appeal. It treated the case as a medical case and applied the high-threshold approach in N v Secretary of State for the Home Department.

On appeal, the appellant argued that the Upper Tribunal should have considered the cumulative effect of the humanitarian conditions in Gaza and the family’s personal circumstances, and should have addressed the approach in Sufi & Elmi. The central issues were which Article 3 test applied and whether the Upper Tribunal had properly engaged with the evidence of deterioration after the 2014 conflict.

1. Appeal allowed and case remitted. The appeal was remitted to a differently constituted Upper Tribunal for reconsideration of the evidence and the applicable law.
2. The Upper Tribunal misdirected itself by considering and applying only the exceptional medical-removal test in N v Secretary of State for the Home Department [2005] UKHL 31. The appellant’s case was not confined to the wife’s medical condition. It concerned the combined effect of the humanitarian conditions in Gaza and the family’s personal circumstances.
3. The Strasbourg approach in Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 required consideration where dire humanitarian conditions were predominantly attributable to the direct or indirect actions of parties to a conflict. The assessment required attention to the applicant’s ability to meet basic needs, vulnerability to ill-treatment and the prospect of improvement within a reasonable period. Whether that approach applied in this case was for the Upper Tribunal to decide.
4. It was sufficiently arguable that the conditions in Gaza were attributable to the direct and indirect actions of parties to the conflict and that an element of intentionality was present, if intentionality was required. The Upper Tribunal had also failed properly to consider evidence that the position had seriously worsened after the 2014 Israeli military operation.
5. The earlier Country Guidance in HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC) was materially older than the relevant 2014 events and was described as somewhat out of date. The question whether new Country Guidance should be issued was ultimately for the Upper Tribunal.

• Court of Appeal (Civil Division): The appeal was allowed and the case remitted to a differently constituted Upper Tribunal. [2018] EWCA Civ 1782
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Alis found an error of law in the First-tier Tribunal’s consideration of Article 3, remade the decision and dismissed the appeal.
• First-tier Tribunal: The appeal was dismissed on all grounds after the judge rejected the appellant’s account of persecution.