The Secretary of State for the Home Department v PF (Nigeria)

In medical-removal cases, the domestic article 3 threshold remains that established in N until the Supreme Court changes it. The wider approach in Paposhvili does not replace that binding domestic test. In any event, the article 3 threshold remains very high and requires evidence of a serious, rapid and irreversible decline causing intense suffering or a significant reduction in life expectancy.

Article 8 is not article 3 with a lower threshold. Medical treatment unavailable in the receiving state cannot, by itself, engage article 8, although it may be relevant with other factors independently engaging private or family life. Under section 117C, the “unduly harsh” and “very compelling circumstances” tests require distinct assessments.

The respondent, a Nigerian national with sickle cell disease, had lived in the United Kingdom since childhood and had three British children. Following serious drug convictions, the Secretary of State made a deportation order under the UK Borders Act 2007. The First-tier Tribunal initially allowed his human-rights appeal, but the Upper Tribunal set that decision aside.

On remittal, the First-tier Tribunal dismissed the appeal in 2017. The Upper Tribunal later set that decision aside and, in a determination promulgated on 21 May 2018, allowed the appeal on article 3 and article 8 grounds. The central issues were whether Paposhvili displaced the domestic test in N, whether the medical evidence satisfied that test, and whether the circumstances were sufficiently compelling under section 117C(6) of the Nationality, Immigration and Asylum Act 2002.

1. Appeal allowed. The Upper Tribunal determinations of 7 February and 21 May 2018 were quashed. The First-tier Tribunal determination of 6 June 2017 dismissing the respondent’s appeal was restored, so the deportation order remained in force.
2. Per Hickinbottom LJ, with Floyd LJ and Holroyde LJ agreeing, the House of Lords decision in N remained binding on domestic courts and tribunals. The Court of Appeal could not apply the wider guidance in Paposhvili instead of the domestic test unless and until the Supreme Court overruled N. The judge below therefore erred in allowing the article 3 appeal on the basis of Paposhvili.
3. The Court nevertheless considered the alternative position. Even under the Paposhvili approach, the evidence did not establish a serious, rapid and irreversible decline resulting in intense suffering. Morphine and antibiotics were generally available in Nigeria, and any case based on practical difficulty of access required specific evidence. A general median life-expectancy figure for sickle cell patients in Africa, heavily influenced by infant mortality, could not support a finding that this adult respondent would predictably die within five years.
4. Article 8 has a different focus from article 3. The absence of medical treatment in the receiving state cannot itself engage article 8. It may be a factor in proportionality only where other facts independently engage private or family life. The judge had therefore wrongly treated the respondent’s medical consequences as sufficient to establish an article 8 breach.
5. Under section 117C(5), “unduly harsh” focuses on the effect of deportation on the qualifying child or partner. Under section 117C(6), “very compelling circumstances” requires the effects on family or private life to be balanced against the strong public interest in deporting serious foreign criminals. The disruption and distress facing the children were unfortunate but ordinary consequences of deportation and fell well short of either threshold.
6. Any possible errors in the First-tier Tribunal’s reasoning were immaterial because the evidence admitted only one outcome. The case therefore did not require remittal.

• Court of Appeal (Civil Division) — The appeal was allowed under [2019] EWCA Civ 1139. The Upper Tribunal determinations were quashed and the First-tier Tribunal’s dismissal of the appeal was restored.
• Upper Tribunal — On 21 May 2018, Upper Tribunal Judge Lindsley allowed the appeal on article 3 and article 8 grounds. The determination followed the Upper Tribunal’s decision of 7 February 2018 setting aside the earlier First-tier Tribunal determination and retaining the appeal for redetermination.
• First-tier Tribunal — On 6 June 2017, the appeal against deportation was dismissed.
• Court of Appeal — On 12 March 2015, the respondent’s appeal was dismissed and the matter was remitted to the First-tier Tribunal: [2015] EWCA Civ 251.
• Upper Tribunal — On 12 February 2014, the First-tier Tribunal’s earlier decision was set aside and the appeal was remitted for rehearing.
• First-tier Tribunal — On 10 July 2013, the appeal was allowed.