Secretary of State for the Home Department v OSB

For a medical Article 3 claim resisting deportation, serious illness and a real risk of serious, rapid and irreversible deterioration are insufficient alone. Under AM (Zimbabwe) [2020] UKSC 17, the deterioration must result in intense suffering or a significant reduction in life expectancy, and the risk must arise from absent or inaccessible appropriate treatment. The causal chain must also be sufficiently proximate. A possible sequence involving non-compliance with medication, relapse, further offending, imprisonment and inadequate treatment in prison may be too remote to engage the responsibility of the removing state, particularly where removal is for community living rather than extradition into custody. A new pure point of law may be raised on appeal where fairness requirements are satisfied.

OSB, a Nigerian national diagnosed with paranoid schizophrenia, was subject to an indefinite hospital order after convictions for attempted rape and kidnapping. A deportation order was made in 2017. Following a further refusal of his protection and human rights claims in 2021, the First-tier Tribunal allowed his appeal in June 2024, finding that removal could lead through relapse, offending and imprisonment to an Article 3 breach. The Upper Tribunal dismissed the Secretary of State’s appeal in January 2025.

The Secretary of State appealed to the Court of Appeal, arguing that the First-tier Tribunal had applied the Article 3 medical test incorrectly and had relied on an impermissibly speculative causal chain. The central issues were whether the point concerning intense suffering could be raised and whether the Article 3 threshold was satisfied on the primary facts found.

The Court of Appeal unanimously allowed the appeal, set aside the decisions of the First-tier Tribunal and Upper Tribunal, and held that the deportation order should be put into effect.

1. Procedural rigour. Public law grounds should be clear and specific. Applying R (Talpada) v SSHD [2018] EWCA Civ 841, Lata (FTT principal controversial issues) [2023] UK UT 163 (IAT) and Singh v Dass [2019] EWCA Civ 360, the court held that the Secretary of State could raise the intense-suffering point. The point concerned the legal adequacy of the First-tier Tribunal’s reasoning, required no new evidence or differently conducted trial, and OSB had adequate time to address it without detriment.
2. Article 3 medical test. The ratio of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 requires a seriously ill claimant to establish a real risk that appropriate treatment will be absent or inaccessible and that this would cause a serious, rapid and irreversible decline resulting in intense suffering, or a significant reduction in life expectancy. A serious deterioration alone is insufficient. The First-tier Tribunal omitted the requirement of intense suffering and identified no facts showing that it had applied that part of the test.
3. Causation and remoteness. The alleged sequence involved non-compliance with medication, relapse, further offending, imprisonment and inadequate treatment in prison. There were too many links in the causal chain, and the consequences were too remote to attribute to the United Kingdom. Aswat v United Kingdom (2014) 58 EHRR 1 concerned extradition to detention in a country where the applicant had no ties or family support. It did not govern deportation to live in the community. Extending Article 3 to a case where a returnee might later offend and be imprisoned would be a substantial and impermissible expansion of the provision.
4. Disposition. On the primary facts found, OSB fell well short of the Article 3 threshold. Remittal for further fact-finding was unnecessary.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal; set aside the First-tier Tribunal and Upper Tribunal decisions and directed that the deportation order be put into effect.
• Upper Tribunal: On 20 January 2025, dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision.
• First-tier Tribunal: On 21 June 2024, allowed OSB’s appeal against the refusal of his protection and human rights claims and the decision to deport him.
• Earlier proceedings: A First-tier Tribunal decision dated 10 October 2022 was set aside by the Upper Tribunal on 19 July 2023 and the matter was remitted for rehearing.