MM (Malawi) & Anor v the Secretary of State for the Home Department

Article 3 does not generally require the United Kingdom to continue providing foreign nationals with medical treatment unavailable in their receiving country. The domestic test remains the high threshold in N: only very exceptional cases, involving a critical medical condition and compelling humanitarian grounds against removal, qualify. Paposhvili relaxes that threshold in Strasbourg, but cannot displace the binding domestic authority of N unless the Supreme Court revisits it. The applicant must establish substantial grounds for believing that removal creates a real risk of article 3 ill-treatment. Where a prima facie case is shown, the evidential burden may shift to the Secretary of State. The assessment remains fact-specific. Neither proposed removal created the necessary risk.

The conjoined matters concerned proposed removal to Malawi and Sri Lanka. MM and MK challenged the refusal of leave to remain on human rights grounds. MM relied on the unavailability or inaccessibility in Malawi of suitable ingestible antiretroviral treatment. MV relied on mental illness, lack of psychotherapy and an increased risk of suicide on return to Sri Lanka.

The Upper Tribunal dismissed the relevant appeals. The Court of Appeal considered whether the applicants could rely on the more relaxed approach in Paposhvili, notwithstanding the binding domestic test in N, and whether the evidence justified permission to appeal to the Supreme Court.

1. Disposition. The court dismissed MV’s appeal and refused permission to appeal to the Supreme Court. In MM and MK, it refused permission to amend the grounds and refused permission to appeal.
2. Medical cases. The court followed N v Secretary of State for the Home Department [2005] UKHL 31, as explained in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64. The Court of Appeal remained bound by the high domestic threshold in N. Paposhvili v Belgium [2017] Imm AR 867 adopted a more relaxed Strasbourg formulation, but could not authorise this court to depart from binding domestic precedent. Only the Supreme Court could change the domestic law.
3. Burden of proof. The person resisting removal bears the legal burden of showing substantial grounds for believing that removal would create a real risk of article 3 treatment. If a prima facie case is established, an evidential burden may pass to the Secretary of State to dispel the resulting serious doubts. The Upper Tribunal’s conclusion did not depend on the precise point at which that burden shifted.
4. MM. Suitable forms of the relevant antiretroviral drugs were available, ingestible, free or affordable, and could be prescribed under Malawi’s provision for non-standard regimens. There was no real risk of a decline in health or shortened life expectancy. The findings were open to the tribunal and were not arguably perverse. The claim could not succeed even under Paposhvili.
5. MV. The evidence did not establish a serious, rapid and irreversible decline causing intense suffering, or a significant reduction in life expectancy through suicide risk. Medication and family support would be available in Sri Lanka. The evidence was insufficient to establish a real risk meeting the article 3 standard in J v Secretary of State for the Home Department [2005] EWCA Civ 629.

• Court of Appeal (Civil Division) — [2018] EWCA Civ 2482. The court dismissed MV’s appeal and refused permission to appeal. It refused MM and MK permission to amend their grounds and permission to appeal.
• 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 MM and MK’s appeals. Deputy Upper Tribunal Judge Pickup dismissed MV’s appeal. The Upper Tribunal later made further factual findings concerning MM’s treatment and concluded that the Paposhvili criteria were not met.
• First-tier Tribunal (Immigration and Asylum Chamber) — allowed MM’s appeal on several grounds, including article 3 medical grounds, and dismissed MV’s appeal.