AM (Zimbabwe) & Anor v The Secretary of State for the Home Department

In domestic law, the high threshold for preventing removal of a seriously ill foreign national under Article 3 remains governed by N v Secretary of State for the Home Department [2005] UKHL 31, although Paposhvili v Belgium [2017] Imm AR 867 provides authoritative guidance on its modest development under the Convention.

Removal may be prohibited where substantial grounds show a real risk that, because appropriate treatment is absent or inaccessible in the receiving country, the person will suffer a serious, rapid and irreversible decline causing intense suffering or a significant reduction in life expectancy. Equivalent or specific treatment is unnecessary. Practical access, including cost, family support and distance, must be assessed.

AM, a Zimbabwean national with controlled HIV, appealed against deportation because the particular antiretroviral drug available to him in the United Kingdom was unavailable in Zimbabwe, although alternative treatments existed.

Hamzeh Mamoun Naji Abu Nowar, a Jordanian national whose cancer was in remission after treatment in the United Kingdom, challenged removal because he feared a future relapse would not receive equivalent treatment in Jordan.

The First-tier Tribunal dismissed both appellants’ Article 3 and Article 8 claims. The Upper Tribunal dismissed their appeals. The central issue before the Court of Appeal was whether, and how, the guidance in Paposhvili v Belgium affected the domestic approach established in N v Secretary of State for the Home Department.

Appeals dismissed. Lord Justice Sales gave the leading judgment, with which Lord Justice Hickinbottom and Lord Justice Patten agreed.

1. The Court of Appeal remained bound by the House of Lords’ decision in N v Secretary of State for the Home Department [2005] UKHL 31. The later Grand Chamber judgment in Paposhvili v Belgium [2017] Imm AR 867 did not itself displace that domestic authority. The usual rules of precedent, illustrated by Kay v Lambeth London Borough Council [2006] UKHL 10, required dismissal of the appeals on the facts.

2. Nevertheless, Paposhvili modestly relaxed the Convention threshold beyond deathbed cases. Article 3 may apply where substantial grounds show a real risk that, because appropriate treatment is absent or inaccessible in the receiving country, the individual will suffer a serious, rapid and irreversible decline resulting in intense suffering or a significant reduction in life expectancy. The threshold remains high.

3. The assessment is case-specific. The authorities must compare the person’s health before removal with its likely evolution after transfer. Treatment need not be equivalent to that in the removing state, and Article 3 does not confer a right to particular treatment unavailable to the general population. Practical access must be considered, including cost, family or social support and distance. Where serious doubts remain, individual and sufficient assurances may be required.

4. At a full hearing, the court or tribunal should decide whether the Paposhvili threshold is met. Where a stay is considered without a full examination, a good arguable case may suffice.

5. Neither appellant met the threshold. AM had not shown a real risk of a serious and rapid decline, intense suffering or near-future death in Zimbabwe. He had not shown that he could not tolerate the alternative antiretroviral treatments available there. Mr Nowar’s cancer was in remission, any relapse was speculative, and he had previously received successful treatment in Jordan. Differences between the health services did not establish an Article 3 violation.

The Court expressed no concluded view on any extension of stays pending possible Supreme Court appeals.

• Court of Appeal (Civil Division): Dismissed both appeals and gave guidance on the domestic significance of Paposhvili v Belgium.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed both appeals from the First-tier Tribunal.
• First-tier Tribunal: Dismissed both appellants’ claims under Articles 3 and 8 of the Convention.