The UK Supreme Court has allowed an appeal extending the application of Article 3 (prohibition on torture or inhuman or degrading treatment) of the European Convention on Human Rights (ECHR) when challenging deportation due to lack of access to appropriate treatment for serious illness.
The appellant is a Zimbabwean citizen who came to the UK in 2000. He was granted indefinite leave to remain. However, while lawfully residing there, he committed several crimes including battery, receiving stolen goods, and possession of a firearm and ammunition. Having been found guilty of these offences, he was sentenced to time in prison and a deportation order was issued. While in prison, he asked the Secretary of State to revoke the deportation order as he is HIV positive and if he were to return to Zimbabwe he would be unable to access antiretroviral (ART) drugs. Without access to specific HIV medication, he would be vulnerable to numerous infections which could pose a threat to life.
The Secretary of State refused to revoke the deportation order and the appellant appealed to the First-Tier Tribunal and then the Upper Tribunal under Article 8 (right to private and family life) of the Convention. It was the appellant’s understanding, based on UK precedent, that he could only rely on Article 3 (prohibition on torture or inhuman or degrading treatment) where the person’s health was so critical that removal would lead to their early death and the lack of care in the country of origin would not allow them to face this fate with dignity. This was set out in N v Secretary of State for the Home Department where a women with AIDS, whose condition had stabilised due to access to ART in the UK, was found to have an illness that was not sufficiently critical for it to be inhumane to deport her to Uganda. This was upheld by the ECtHR, which left open the possibility of other “very exceptional cases” in which the humanitarian considerations were compelling.
However, prior to his appeal to the Court of Appeal, the Grand Chamber of the European Court of Human Rights delivered judgment in Paposhvili v Belgium. This clarified the Article 3 test in “very exceptional cases” beyond the imminent risk of dying, to where there was “real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, or being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”.
While the Court of Appeal saw only a “very modest” extension of the law and refused the appeal, the Supreme Court found that the ECtHR had indeed modified the principle. The Court found that the test laid down in Paposhvili did not create the threshold of imminent death as it was a disjunctive test. The Court interpreted “significant” to mean “substantial”, the severity of which depended on the context.
According to the Court, Paposhvili requires the applicant meet a demanding threshold by producing evidence “capable of demonstrating that there are substantial grounds for believing” that it is a “very exceptional case” because of a “real” risk of subjection to “inhuman” treatment.
As the Article 3 case had not been put to the lower courts, the appellant’s claim was remitted back to the Upper Tribunal to be heard afresh by a panel including its President.
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