Wed, 29 Apr 2020
In AM (Zimbabwe) v Secretary of State for the Home Department  UKSC 17, Lord Wilson calls the European Court on Rights out on its claim that in Paposhvili v Belgium  Imm AR 867, it was doing no more than “clarifying” its judgment in N v United Kingdom (2008) 47 EHRR 39 as to the circumstances in which removal or deportation will breach Article 3 of the European Convention on Human Rights. Close readers of the judgment in Paposhvili will be well aware of the numerous points at which the court uses, it is hard to doubt, intentionally, the very same language as is used in N to come to different conclusions.
In N v Secretary of State for the Home Department  UKHL 31 the House of Lords examined the position of N, who had AIDS. It was accepted that N would die in unpleasant circumstances within approximately one year if removed. If she remained in the UK, able to access antiretroviral drugs, she would live. The House of Lords held that removal did not breach Article 3. In doing so they had to get round the European Court of Human Rights’ case of D v UK (1997) 24 EHHR 423 in which the removal of a man dying of AIDS to St Kitts was held to breach Article 3 because of the suffering and degradation inherent in the death he faced there. They attempted to do so by saying that in N’s case it was the State’s lack of resources, not any discrimination or ill-will, that would lead her to go untreated and so to die. But all that is arguably true of D.
The easiest distinction to draw between the cases is not a legal one at all, but a political one. In the time between the two cases, antiretroviral drugs had developed. D wanted to die with dignity. N wanted to live, and behind her case lay the prospect of many others coming to countries in which treatment is available, in an attempt to save their lives.
N’s case went to the European Court of Human Rights as N v United Kingdom (2008) 47 EHRR 39. The European Court of Human Rights took the same approach as the House of Lords.
Then along came Paposhvili. What the European Court of Human Rights said was:
“183. The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of 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. The Court points out that these situations correspond to a high threshold for the application of article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
But what did it mean? In AM (Zimbabwe) v Secretary of State for the Home Department  1 WLR 2933 in the Court of Appeal Lord Justice Sales give his interpretation, but the Supreme Court did not agree with it.
Lord Justice Sales had said at paragraph 38 of the Court of Appeal judgment:
“This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”
The Supreme Court declined to equate “significant reduction in life expectancy” with “the imminence of death” (paragraph 30 of the judgment).
Lord Wilson held at paragraph 32:
“The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said.
He summarised the procedure to be followed:
“[…] All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. […]
In the event that the applicant presents evidence to the standard addressed above, the returning state can seek to challenge or counter it […] while it is for the applicant to adduce evidence about his or her medical condition, current treatment (including the likely suitability of any other treatment) and the effect on him or her of inability to access it, the returning state is better able to collect evidence about the availability and accessibility of suitable treatment in the receiving state.”
He emphasised at only “serious” concerns that Article 3 would be breached had to be refuted. The State was not obliged to refute the risk of a breach beyond reasonable doubt.
Contrary to what is said in the opening paragraph of the Supreme Court judgment, AM (Zimbabwe) is relevant not only to “the ability of the UK to deport a foreign citizen who, while lawfully resident here, has committed a string of serious crimes” but to any case in which a person faces removal would lead to a significant diminution in life expectancy on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment. The Supreme Court may be under the impression that the Home Office only tries to remove such persons where they have committed a serious crime, but that is not is not the experience of practitioners. Removal is sought in cases where a person has not committed a crime at all.
This may not be the end of the debate. The point is raised in the case of Savran v Denmark  ECHR 651, a hearing before the fourth chamber of the European Court of Human Rights, discussed by the Supreme Court in paragraph 26 of AM. The case is going to the Grand Chamber UK has applied for leave to intervene. Watch this space.