AXB v The Secretary of State for the Home Department

In an Article 3 health-removal case, the returning state must provide procedures which properly examine the applicant’s fears and assess the evidence. There is no free-standing duty to make enquiries of the receiving state or obtain assurances.

The applicant bears the legal burden of showing a real risk of Article 3 ill-treatment at the applicable threshold. If the applicant adduces evidence capable of proving that case, the evidential burden falls on the state to counter it or dispel the resulting doubts. In suicide cases, the high threshold in N v United Kingdom applies unless the risk stems from hostile acts of the receiving state.

The appellant, a Jamaican national facing deportation, appealed against the decision of First-tier Tribunal Judge O’Keeffe, promulgated on 23 April 2019. The First-tier Tribunal dismissed his protection, humanitarian-protection and Article 3 claims, but allowed his appeal under Article 8 ECHR.

He challenged the adverse credibility findings, contended that his disability and mental-health difficulties exposed him to violence and inadequate support in Jamaica, and relied on a risk of suicide. The principal issue was whether Paposhvili v Belgium imposed a procedural Article 3 obligation requiring the United Kingdom to investigate treatment in Jamaica or obtain individual assurances before removal.

1. The Upper Tribunal found no material error of law in the dismissal of the protection, humanitarian-protection and Article 3 claims. The First-tier Tribunal’s adverse credibility assessment was lawful. Its reasons were cumulative and it had not treated the rejected KB/B account as determinative of the whole claim.

2. The humanitarian-protection claim failed. Article 15(b) of the Qualification Directive does not cover deterioration caused by general shortcomings in a receiving state’s health system. It requires intentional deprivation of appropriate health care by the authorities. No such case was advanced.

3. In health-removal cases, Paposhvili v Belgium requires appropriate domestic procedures for examining the feared consequences of return. In the United Kingdom, the Secretary of State’s decision-making process and appellate scrutiny by the Tribunal fulfil that requirement. Paragraphs 185 to 187 of Paposhvili concern the respective burdens of proof; they do not create a free-standing procedural obligation to make enquiries or obtain assurances.

4. The appellant must establish a real risk of Article 3 harm at the applicable threshold. If his evidence is capable of proving that risk, removal is precluded unless the Secretary of State counters it or dispels the doubts it raises. Suitable counter-evidence may, depending on the case, be general evidence, enquiries in the receiving state, or individual assurances.

5. The Tribunal was bound by N v United Kingdom and RA (Sri Lanka) v Secretary of State for the Home Department. A claimed suicide risk is subject to the high Article 3 threshold in health cases unless it results from hostile conduct by the receiving state. The evidence did not establish that threshold, including in relation to accommodation, medical support, a further stroke, or suicide risk.

The First-tier Tribunal’s decision was upheld on the challenged grounds. Its unchallenged allowance of the appeal under Article 8 ECHR remained in force.

• Upper Tribunal (Immigration and Asylum Chamber): found no material error of law and upheld the First-tier Tribunal’s dismissal of the protection and Article 3 claims.
• First-tier Tribunal: First-tier Tribunal Judge O’Keeffe, decision promulgated on 23 April 2019, dismissed the protection claims but allowed the appeal on Article 8 ECHR grounds.