MY v The Secretary of State for the Home Department

In a mental-health removal case, the governing Article 3 threshold is that in Paposhvili v Belgium, as explained in AM (Zimbabwe) v Secretary of State for the Home Department. An appellant must show substantial grounds for believing that lack of appropriate and accessible treatment would expose them either to a serious, rapid and irreversible decline in health causing intense suffering or to a substantial reduction in life expectancy.

The six principles in J v Secretary of State for the Home Department, as reformulated in Y (Sri Lanka) v SSHD, remain guidance for assessing subjective fear in suicide and mental-health cases. They do not impose an additional threshold or burden. Once the appellant raises a prima facie Article 3 case, the Secretary of State must dispel the serious doubts raised by the evidence.

The appellant appealed against the refusal to revoke a deportation order. His earlier appeal had been dismissed by the First-tier Tribunal. Following a successful Cart judicial-review process, the Upper Tribunal set that decision aside because the appeal required reconsideration in light of later Article 3 medical-case authority.

He claimed Palestinian nationality and protection-related risks on return, but the Secretary of State contended that he was Moroccan. He also relied on severe depression, PTSD, anxiety and psychosis, a history of self-harm and suicide attempts, and the likely absence of accessible mental-health care and support if removed.

The Tribunal determined nationality, protection, and whether removal to Morocco or the Occupied Palestinian Authority would breach Articles 2, 3 or 8 of the ECHR. The determinative issue was whether enforced removal to Morocco would breach Article 3 on health grounds.

1. Appeal allowed on Article 3 health grounds. The appeal was dismissed on protection grounds, but removal to Morocco would breach Article 3 of the European Convention on Human Rights.

2. The applicable test was the test in Paposhvili v Belgium, as explained by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department. The appellant had to establish substantial grounds for believing that a lack of appropriate treatment, or access to it, would create a real risk of serious, rapid and irreversible decline causing intense suffering, or a significant, meaning substantial, reduction in life expectancy.

3. That test applies to mental-health and suicide-risk cases. The six points in J v Secretary of State for the Home Department, as reformulated in Y (Sri Lanka) v SSHD, survived as guidance on subjective fear. They were not an independent threshold test and did not place an extra burden on an appellant. A genuine fear without objective foundation could nevertheless create a suicide risk on enforced return.

4. The appellant had raised a prima facie Article 3 case. The medical evidence established chronic serious mental illness, daily suicidal thoughts, previous self-harm and an immediate high risk of self-harm or suicide on removal. He had a genuine subjective fear of being pursued, would arrive alone and unsupported, and was likely to be destitute.

5. Although some treatment existed in Morocco, it would not be accessible to this appellant. The Secretary of State's evidence did not dispel the serious doubts raised by the appellant's evidence. The Tribunal therefore found a real risk of intense suffering and a substantial reduction in life expectancy. It was unnecessary to decide Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal remade after the earlier First-tier Tribunal decision was set aside; allowed on Article 3 health grounds.
• Upper Tribunal (Immigration and Asylum Chamber): UTJ Craig set aside the First-tier Tribunal decision after later authority, including AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, required reconsideration.
• First-tier Tribunal: Judge Myers dismissed the appeal in a decision promulgated on 5 September 2016.