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04 May 2020

AM (Zimbabwe) and Article 3 ECHR

4 mins

On 29 April 2020 the Supreme Court gave judgment in a vital case about the application of Article 3 of the European Convention on Human Rights (ECHR) in ‘medical grounds’ removal cases. This judgement will have a significant impact in some of the most difficult and distressing cases where a person’s removal from the UK would lead to a significant reduction in life expectancy due to lack of access to appropriate treatment in the country of return.   

The Appellant in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 appealed his deportation from the UK by reference to Article 3 of the ECHR, which provides that nobody shall be subjected to ‘torture or inhuman or degrading treatment or punishment’. He was HIV-positive and asserted that he would be unable to access medication that he was dependent on to prevent his condition developing into AIDS.

Caselaw on Article 3 before the Supreme Court’s recent determination was N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296, which set out a very strict test for Article 3 medical cases. In that case, Baroness Hale said: 'In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.'

Following N, and its unsuccessful appeal to the European Court, Home Office policy was to accept that an applicant’s Article 3 (medical) rights would be breached by removal to their country of origin only if:

  • Their illness has reached such a critical stage (the applicant is dying)
  • The conditions to which they will be returned are such that it would be inhuman or degrading treatment to deprive them of the care they are currently receiving and send them home to an early death (unless there is care available there to allow them to die with dignity).

Prior to the Court of Appeal hearing in AM, the Grand Chamber of the European Court of Human Rights delivered its judgment in Paposhvili v Belgium [2017] Imm AR 867. The test set out there was not restricted to a person at imminent risk of dying, but in cases where there was a  '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.'

The Court of Appeal held, in their decision on AM’s case, that the Paposhvili decision reflected only a 'very modest' extension of the law regarding Article 3 and refused the appeal. Permission was granted to appeal in the Supreme Court.

The Supreme Court held that a 'significant reduction in life expectancy' means a 'substantial' reduction in life expectancy, and if life expectancy would be reduced to death in the near future, this is more likely to be significant than any other reduction.

The Supreme Court confirmed that they should only refuse to follow a decision of the ECtHR in highly unusual circumstances and there was no question of its refusing to follow Paposhvili. The Court gave further guidance regarding the evidence an Appellant must adduce, which must, if unchallenged, establish a violation of Article 3. The evidence must be capable of demonstrating 'substantial' grounds for a 'very exceptional case' because of a real risk of subjection to inhuman treatment. The returning state could seek to challenge or counter it and must 'dispel' any serious doubts raised by the evidence put forward by the Appellant.

Further information is available via the Supreme Court’s website and is accessible here.

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