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

Removal of a seriously ill person may breach article 3 even though death is not imminent. The applicant must produce evidence capable of establishing substantial grounds for believing that removal would create a real risk, through absent or inaccessible treatment, of either a serious, rapid and irreversible decline causing intense suffering or a substantial reduction in life expectancy.

Once that prima facie case is raised, the returning state must subject the alleged risk to close scrutiny and dispel any serious doubts. It must assess both the general availability of suitable treatment and its practical accessibility to the particular applicant. The restrictive approach requiring the person to be close to death no longer represents the law.

The appellant, a Zimbabwean citizen with HIV, challenged the Secretary of State’s refusal to revoke his deportation order. Before the First-tier Tribunal and Upper Tribunal he relied on article 8 of the European Convention on Human Rights and conceded that article 3 could not assist him under N v Secretary of State for the Home Department [2005] UKHL 31.

After the Grand Chamber decided Paposhvili v Belgium [2017] Imm AR 867, the appellant sought to advance an article 3 case. The Court of Appeal dismissed his appeal in [2018] EWCA Civ 64, holding itself bound by N and construing Paposhvili narrowly.

The Supreme Court had to determine the correct article 3 threshold in medical-removal cases, whether to depart from N, and whether the appellant’s proposed claim should be remitted for determination on current evidence.

1. The appeal was allowed unanimously. Lord Wilson delivered the judgment, with which Lady Hale, Lady Black, Lady Arden and Lord Kitchin agreed. The appellant’s proposed article 3 claim was remitted to the Upper Tribunal for determination on up-to-date evidence directed to the substantive and procedural requirements identified by the Grand Chamber.

2. Paposhvili v Belgium [2017] Imm AR 867 expanded the protection afforded by article 3 in medical-removal cases. It was not confined to persons facing imminent death. A seriously ill person satisfies the substantive threshold where substantial grounds show a real risk that absent or inaccessible treatment in the receiving state would cause either a serious, rapid and irreversible decline in health resulting in intense suffering, or a significant reduction in life expectancy.

3. A “significant” reduction in life expectancy means a substantial reduction. Its significance is contextual and depends on matters including the person’s age and otherwise expected lifespan. The Court of Appeal erred by translating a significant reduction into imminent death and by applying the requirement of rapidity to the reduction in life expectancy rather than to the alternative involving decline in health and intense suffering.

4. The applicant bears the initial burden of adducing evidence capable of demonstrating substantial grounds for believing that removal would infringe article 3. This is a demanding prima facie threshold. The evidence, if unchallenged or uncountered, must establish a real risk of inhuman treatment in a very exceptional case.

5. Once that threshold is crossed, the returning state must subject the alleged risk to close scrutiny and dispel any serious doubts. The applicant should provide evidence about the medical condition, current treatment, suitable alternatives and the likely consequences of losing access. The returning state is ordinarily better placed to investigate whether suitable treatment is available and practically accessible, including its cost, geographical location and any relevant family network. If serious doubts remain, an individual assurance may be required.

6. The Supreme Court followed the Grand Chamber’s exposition in Paposhvili and departed from the restrictive decision of the House of Lords in N [2005] UKHL 31. The historic medical reports had been prepared for an article 8 claim before the new requirements existed. Their sufficiency under article 3 should therefore be assessed with new evidence by the specialist tribunal, rather than determined for the first time on appeal.

1. United Kingdom Supreme Court: The appeal was allowed unanimously. The court departed from N v Secretary of State for the Home Department [2005] UKHL 31 and remitted the proposed article 3 claim to the Upper Tribunal.
2. Court of Appeal: The appeal was dismissed in [2018] EWCA Civ 64. The court held itself bound by N and concluded that the existing medical reports did not satisfy its narrow construction of Paposhvili v Belgium [2017] Imm AR 867.
3. Upper Tribunal: The appellant’s challenge remained unsuccessful. He had advanced his case under article 8 of the European Convention on Human Rights, not article 3.
4. First-tier Tribunal: The appeal against the refusal to revoke the deportation order was dismissed. The appellant expressly relied on article 8 and did not advance an article 3 claim.