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

In an Article 3 health-removal case, the person resisting removal must first establish that they are seriously ill and adduce evidence capable of showing substantial grounds for believing that removal would create a real risk of the specified grave health consequences because appropriate treatment is unavailable or inaccessible.

A deterioration in health or serious detrimental effects alone do not suffice. The predicted decline must result in intense suffering, or there must be a significant reduction in life expectancy. Evidence will commonly require reliable, contemporary material about treatment, monitoring and practical access in the receiving state. The returning state must address serious doubts only after that threshold is met.

The appellant, who was HIV positive and subject to a deportation order, contended that his removal to Zimbabwe would breach Article 3 of the European Convention on Human Rights because the antiretroviral medication and monitoring available there would be inadequate.

A First-tier Tribunal had dismissed his human-rights appeal in 2014. The Upper Tribunal upheld that decision in 2015. The Court of Appeal dismissed a further appeal on [2018] EWCA Civ 64. The Supreme Court subsequently allowed the appellant's appeal, gave guidance on Article 3 health cases, and remitted the Article 3 issue for rehearing: AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17.

The issue on remittal was whether suitable HIV treatment, monitoring and testing would be available and practically accessible to this appellant in Zimbabwe.

1. Appeal dismissed. The appellant was a seriously ill person, but he did not establish substantial grounds for believing that deportation to Zimbabwe would expose him to a real risk of treatment contrary to Article 3.

2. The Tribunal applied the health-case threshold in Paposhvili v Belgium [2016] ECHR 1113 and Savran v Denmark (application no. 57467/15). The appellant bore the initial burden of producing evidence capable of demonstrating the requisite real risk. The threshold required more than a likely worsening of health. It required a serious, rapid and irreversible decline causing intense suffering, or a significant reduction in life expectancy.

3. The alternative three-in-one antiretroviral regimen available in the Zimbabwean public sector was clinically suitable and had a high probability of working well. Although the public testing regime was less frequent than the ideal regime in the United Kingdom, the Tribunal accepted that monitoring was available and that additional private testing could be obtained when needed.

4. The limited cost of additional testing would be affordable. The appellant could work and was likely to receive short-term support from his wife, her family, or his brother. The practical assessment was not a comparison with the standard of care in the United Kingdom, but whether treatment sufficient to control his illness would be available and accessible in Zimbabwe.

5. The appellant had previously attended treatment irregularly, but the Tribunal found that he understood the importance of medication and would seek treatment when necessary. If he failed to adhere to treatment despite its availability and accessibility, the resulting harm would arise from his own choice rather than from removal or a lack of treatment. There would then be no causal Article 3 breach.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the decision following remittal and dismissed the Article 3 appeal.

• Supreme Court: Allowed the appellant's appeal and remitted the Article 3 issue for rehearing: AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17.

• Court of Appeal: Dismissed the appeal on 30 January 2018: [2018] EWCA Civ 64.

• Upper Tribunal: Found no error of law in the First-tier Tribunal decision in a decision promulgated on 19 May 2015.

• First-tier Tribunal: Dismissed the human-rights appeal in a decision promulgated on 3 November 2014.