SL (St Lucia) v The Secretary of State for the Home Department

Article 8 is not Article 3 with a lower threshold and does not provide a safety net for medical cases failing under Article 3. The absence of medical treatment in the receiving country cannot alone engage Article 8. It may be considered only alongside other factors independently engaging private life, and cannot alone establish a breach. Paposhvili v Belgium [2017] Imm AR 867 did not alter that approach under MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 and GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40. An analytical error may be immaterial where the claim remains very weak and removal would clearly be proportionate. The applicable Immigration Rules are those in force when the decision was made.

The applicant, a St Lucian national, entered the United Kingdom as a visitor in 2002 and later held successive student leave before overstaying. Her application for leave to remain under paragraph 276ADE(vi) of the Immigration Rules was refused in March 2013. Following an earlier procedural remittal, the First-tier Tribunal dismissed her appeal after finding that she was seriously mentally ill but that suitable treatment and removal safeguards were available in St Lucia. The Upper Tribunal upheld that decision, treating any separate analysis of the medical and non-medical aspects of her private-life claim as immaterial. The Court of Appeal considered the effect of Paposhvili v Belgium [2017] Imm AR 867, the materiality of the alleged errors, the applicable version of paragraph 276ADE, and the treatment of English-language ability and financial independence under section 117B.

Application to appeal dismissed. Hickinbottom LJ gave the judgment, with Bean LJ agreeing.

1. Article 3 and Article 8 pursue different purposes. Article 3 is absolute and concerned with treatment reaching a high minimum level of severity. Article 8 protects family and private life as a relative right and requires a proportionality assessment. Paposhvili v Belgium [2017] Imm AR 867 concerned the Article 3 threshold and did not alter the Article 8 approach.
2. The absence or inadequacy of medical treatment in the receiving country cannot by itself engage Article 8. It is relevant only as an additional factor where other facts independently engage private life, and it cannot alone establish a breach. The approach in MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 and GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40 remained appropriate. There was no breach of any procedural requirement: the applicant had a full opportunity to present her healthcare case and the tribunals made adequate findings.
3. Even assuming that the First-tier Tribunal had erred by considering the medical and non-medical strands separately, the error was immaterial. The applicant’s private-life claim was extremely weak, suitable treatment and support were available in St Lucia, and removal was not arguably disproportionate to the legitimate interest in immigration control.
4. The relevant version of paragraph 276ADE was that in force when the Secretary of State made the decision on 27 March 2013. The pre-amendment no-ties criterion applied. The later wording concerning very significant obstacles to reintegration did not govern the assessment. The applicant’s residence in St Lucia for the first 32 years of her life and her family connections there supported the finding that she had ties with St Lucia.
5. The approach under section 117B of the Nationality Immigration and Asylum Act 2002, treating English-language ability and financial independence as neutral rather than positive factors, accorded with binding authority in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803. A stay pending the Supreme Court’s judgment was unnecessary because positive weight would not have altered the outcome.

• Court of Appeal (Civil Division): dismissed the application for permission to appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Ramshaw dismissed the appeal on 29 June 2016, holding that any error in the First-tier Tribunal’s analysis was immaterial.
• First-tier Tribunal (Immigration and Asylum Chamber): following remittal after an earlier decision was set aside on procedural grounds, Judge Grant dismissed the appeal on 29 October 2015.