On the 29 April 2020, the UK’s Supreme Court ruled against the Secretary of State and allowed a Zimbabwean national, referred to as AM, to remain in the UK in spite of AM’s previous convictions for serious offences. The ruling was significant as it provides a broader scope for appealing against deportations on health grounds.
Some Facts of the Case
AM was born in 1987 and is a national of Zimbabwe. He arrived in the UK in 2000 to join his mother, and he was granted indefinite leave to remain in 2004. In 2006, AM was convicted of a number of criminal offences and sentenced to a total of 12 months’ imprisonment. In 2009, AM was convicted of offences relating to possession of a firearm and supply of heroin, and he was sentenced to nine years’ imprisonment. The Secretary of State sought to deport AM. However, AM is HIV positive. He was placed on the anti-retroviral medication,Eviplera, after having first tried another medication which producedsignificant side-effects. If AM is deported to Zimbabwe, a range of anti-retroviral medications would be available, but not Eviplera.
Initial Appeals Dismissed
At a hearing before the First-tier Tribunal, counsel then appearing for AM relied on AM’s medical condition and the limits on treatment available to him, in addition to the impact of his deportation on his wife and child, to advance a claim based on Article 8 of the European Convention on Human Rights. The First-tier Tribunal dismissed the claim. AM appealed, and the appeal was dismissed by the Upper Tribunal. In the Court of Appeal, AM based his appeal on Article 3, rather than Article 8, of the European Convention on Human Rights. The Court of Appeal dismissed the appeal. AM appealed to the Supreme Court.
On to the Supreme Court
Not many court rulings in the recent years have been a source of hope for immigrants in the UK and their representatives for expanding the scope of possibility to rely onhuman rights to prevent removal or deportation. The Supreme Court ruling of 29 April 2020 in the case AM (Zimbabwe) (Appellant) v Secretary of State for theHome Department (Respondent)  UKSC 17 is certainly one of them.
The decision provides for an authoritative guidance for English courts on how to apply the ruling by the Grand Chamber of the European Court of Human Rights (ECtHR) of 13 December 2016 in the case Paposhvili v. Belgium (Application no.41738/10). The decision in Paposhvili was in turn a long-awaited shift in the ECtHR’s application of Article 3 of the European Convention on Human Rights (ECHR) to cases involving migrants with serious – and often terminal – illnesses, requiring treatment which could not be realistically continued in the country to which the migrant would be removed.
Article 3 of ECHR prohibits torture and inhuman and degrading treatment. It is therefore worth noting that the Court has in the past emphasised explicitly (most famously in Soering v. United Kingdom and Chahalv. United Kingdom) the fundamental nature of Article 3, in holding that the prohibition is made in absolute terms and irrespective of a victim’s conduct.
Until Paposhvili, the binding interpretation of Article 3 of ECHR in cases involving migrants with serious health problems had been provided in the ruling of 27 May 2008 in the case N v. United Kingdom (Application no. 26565/05), resulting from an earlier ruling by the House of Lords. To appreciate the importance of the later shift in the ruling one needs to imagine how many people may have to date died prematurely as a result of the incredibly high threshold set in N v. UK being applied.
The case of N vs UK
N. was acitizen of Uganda with HIV/AIDS, who claimed that her deportation to Uganda would be inhuman and degrading under Article 3 of ECHR by effectively sentencing her to death within 2 years from leaving the UK as a result of the absence of adequate treatment in Uganda – the treatment that would allow her tolive for another few decades. However, EctHR held that [t]he practical effect of extending Art. 3 to cover the applicant’s case would be to grant her,and countless others afflicted by AIDS and other fatal diseases, a right to remain and to continue to benefit from medical treatment… It was inconceivable that the contracting states would have agreed to such a provision.
N. was eventually deported and died in Uganda shortly after. As Dr. Sylvie da Lomba, a lecturer in immigration and human rights law at the University of Strathclyde put it, the N v U.K. approach caused the Court to erode the fundamental and absolute nature of Article 3, a cornerstone of the ECHR system –simply because EctHR chose to focus on the nationality and immigration status of N. rather than the nature of the obligation under Article 3.
The political cost of N. v. UK for the Court, including critical voices from inside EctHR, as the Court’s President President Guido Raimondi himself admitted, led the Judges to revise their approach to Article 3 cases involving gravely ill migrants facing removal in Paposhvili,
In Paposhvili,the Court ruled that Article 3 is always triggered in cases involving a seriously ill person threatened by removal, where the absence of sufficient and appropriate medical treatment available in reality (not merely in theory) exposes such a person 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.
It was in this context that the Supreme Court of the United Kingdom was posed with the question of whether the Appellant in AM (Zimbabwe) could rely on Article 3 of ECHR.
The case before the Supreme Court resulted from a decision made by the Court of Appeal in the case of a national of Zimbabwe with HIV. His argument was that only allowing him to remain in the UK and continue his treatment would prevent his condition from relapsing into AIDS.
In the Court of Appeal’s opinion, AM’s removal would only amount to violation of Article 3 of ECHR where intense suffering or death were imminent in the receiving state because treatment was unavailable there. In this, the Court ofAppeal indeed made an attempt to follow the test established in Paposhvili. However, the Supreme Court found that the Court of Appeal was mistaken intaking the ECtHR’s phrase, “a significant reduction in life expectancy”, to mean “the imminence of death”.
The Supreme Court made it clear that the burden remains on the applicant to produce evidence “capable of demonstrating that there are substantial grounds for believing” that they would be exposed to a real risk of being subjected to treatment contrary to Article 3, if removed. In acknowledging that this is indeed a very high threshold, the Supreme Court also noted that the onus shifts when the applicant produces evidence that prima facie meets this standard.
Finally, the Supreme Court provided a detailed guidance for English courts and tribunalson what they must consider when applying the Paposhvili testin particular cases. This includes the accessibility of treatment in the state to which the applicant would be removed, as well as the cost of such treatment,and the existence of a family network of support in the receiving state. Any assurances from the receiving state regarding the treatment’s availability would also need to be taken into account.
Overall, the ruling in AM (Zimbabwe) provides for a signal that more opportunities have opened for migrants facing removal to challenge the removal decision on health grounds. However, it needs to be emphasised that the Paposhvili test as interpreted by the Supreme Court in AM (Zimbabawe) will be put to work on a case-by-case basis and for months (if not years) to we may see many an immigration decision habitually interpreting Article 3 of ECHR narrowly.
Written by Aleksander Bucholski, MLC Immigration Lawyer
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