NM v The Secretary of State for the Home Department

For medical claims under Article 15(b) of the Qualification Directive, an applicant must prove a real risk of serious harm through the intentional deprivation of appropriate health care by an actor of serious harm. This requires a sufficiently strong causal link between that actor’s conduct and the deprivation.

General deterioration of health-care provision caused by the economic or security consequences of armed conflict will not ordinarily establish intentionality. The position differs under Article 3 ECHR, which can protect a seriously ill person facing the requisite risk from unavailable treatment without intentional conduct by a third party. Article 15(c) requires an individualised, cumulative assessment of personal characteristics against the level of indiscriminate violence.

The Iraqi appellant had end-stage kidney disease and required dialysis. The First-tier Tribunal dismissed his protection claim but allowed his appeal under Article 8 ECHR, having found that he could not access adequate treatment on return.

On an earlier appeal, the Upper Tribunal set aside that decision for error of law while preserving the material factual findings. The respondent later conceded that removal would breach Article 3 ECHR because vital treatment would be inaccessible. The remade appeal concerned entitlement to humanitarian protection under Articles 15(b) and 15(c) of the Qualification Directive, and the Tribunal’s jurisdiction to apply retained EU law.

The central questions were whether the appellant’s health condition, disability, Kurdish ethnicity and Sunni faith created an Article 15(c) risk, and whether conflict-related deficiencies in Iraqi health care constituted intentional deprivation for Article 15(b).

1. The appeal was allowed only on Article 3 ECHR grounds. The appeal was dismissed on Refugee Convention and humanitarian-protection grounds. The respondent’s concession that removal would expose the appellant to Article 3 ill-treatment was properly made.

2. The Tribunal had jurisdiction to determine the humanitarian-protection issues. It accepted, consistently with the approach in G v G and Ainte, that the relevant EU law continued to apply as retained law, without deciding the precise legislative basis.

3. Under Article 15(c), the appellant had to show substantial grounds for believing that he faced a real risk of a serious and individual threat from indiscriminate violence. The assessment required the Article 15(c) sliding scale and an individual and cumulative evaluation of relevant characteristics. Kirkuk had a high level of indiscriminate violence, but not one such that every civilian qualified. The appellant’s ethnicity, religion and disability, separately and together, did not meet the threshold. The evidence did not show a real risk arising from checkpoints, travel for dialysis, or his illness.

4. Article 15(b) can in principle cover a seriously ill person returning to a conflict area, but only where an actor of serious harm intentionally deprives that person of appropriate health care. A sufficiently strong causal link must be proved. Examples may include targeted attacks on health facilities, preventing medical aid or staff from reaching an area, discriminatory denial of care, or a wilful failure to prevent such conduct.

5. General health-system shortcomings and the indirect economic or security effects of armed conflict do not establish that causal link. The country evidence showed complex and long-term causes for Iraq’s health-care deficiencies, not intentional deprivation of care from the appellant or a relevant group. His Article 15(b) claim therefore failed. Article 3 medical claims do not require third-party intentionality, so there was no material protection gap.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for error of law, with factual findings preserved. The Upper Tribunal remade the decision and allowed the appeal only under Article 3 ECHR.
• First-tier Tribunal: The appeal was dismissed on international-protection grounds and allowed on Article 8 ECHR grounds. The Tribunal found that the appellant required essential dialysis and could not access appropriate treatment on return.