UK Court of Appeal gives guidance on immigration cases involving medical treatment: an extended look

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On 6th February 2018, the Court of Appeal in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64 gave authoritative guidance on how Paposhvili v Belgium (Application no. 41738/10), which was decided last year by the Grand Chamber of the European Court of Human Rights, should be applied by English courts.

The issue in AM (Zimbabwe) concerned the applicable test for when removal of seriously ill people to their country of origin would raise an issue under Article 3 of the European Convention on Human Rights (prohibition on inhuman or degrading treatment). Sales LJ, giving the judgment of the Court of Appeal, decided that removal would only violate Article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK (AM para 38).

This ‘extended look’ analysis piece will call into question whether the Court of Appeal’s interpretation of Paposhvili into English law is correct.

Background: A potted history of Article 3 medical cases

In the first leading case in this area, D v United Kingdom (Application no. 30240/96), the applicant was on his deathbed in the latter stages of AIDS. He was reliant on the medical and palliative care available in England, in a familiar and compassionate environment. By contrast, if returned to St Kitts he would encounter conditions of isolation and destitution, without access to medication, a hospital bed or carers. The Grand Chamber decided that in these ‘exceptional’ circumstances, removal would breach Article 3.

Following this, the Grand Chamber in N v United Kingdom (Application no. 26565/05) confirmed the judgment of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31 which remains binding precedent. In this case a Ugandan woman with AIDS had improved from a severely ill to a stable condition as a result of immunotherapy drugs available in the United Kingdom. Both courts accepted that if she continued to receive the medication, she would remain well for decades. If not, she would suffer ill health, discomfort, pain and death within a year or two. The evidence was not decisive as to whether N would be provided with appropriate medication upon return to Uganda.

Nonetheless, even if N would have received no medical assistance upon return, she would still not have succeeded under the restrictive test which the House of Lords applied, and which the Grand Chamber accepted. Baroness Hale in the House of Lords phrased the test as follows:

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. [Para 69]

That is to say, the House of Lords restricted the test to only allow extreme ‘deathbed’ cases to succeed: the person is dying imminently in any event, and conditions in the receiving state would be insufficient for them to die with dignity. The European Court of Human Rights noted that such cases would be ‘very exceptional’.

There had been some unease in Strasbourg regarding the restrictive test in N v United Kingdom. For example, in Mwanje v Belgium (Application no. 10486/10 (French only)), a concurring opinion of six judges expressed their hope that the Grand Chamber would one day review their jurisprudence on medical expulsion cases. They commented that the test in N v United Kingdom is “hardly consistent with the letter and spirit of Article 3”, and that in humanitarian terms, the difference between a claimant already on their deathbed and one who will suffer a brief delay before they die is minor. But the Strasbourg Court continued to apply the restrictive test until Paposhvili v Belgium was decided on 13th December 2016.

For a thorough history of the above case law under Article 3 up to and including Paposhvili v Belgium, this article on Free Movement by Duran Seddon is hard to beat. 

The reasoning in AM (Zimbabwe)

At paragraph 24 of AM (Zimbabwe), Sales LJ set out in full the reasoning of the Grand Chamber in Paposhvili v Belgium. As such, it is hardly open to argue that the Court of Appeal failed to pay full regard to the whole of Paposhvili when delivering what is a thorough and clearly reasoned judgment.

Moving to the meat of the judgment, the Court of Appeal laid down their conclusion at the start: that Paposhvili ‘relaxes the test’ in but ‘does so only to a very modest extent.’

To support this, Sales LJ quoted the test set out by the Grand Chamber at paragraph 183 of Paposhvili. Under this test, Article 3 extends to cases where:

Substantial grounds have been shown for believing that [the applicant], 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 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 [AM para 38].

Sales LJ explained this as follows:

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. [AM para 38]

Spot the difference?

For those (like me) who did not instantly work out the ramifications of Sales LJ’s position, he explained it as follows:

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. [AM para 38]

The Court of Appeal gave five reasons why their rather restrictive interpretation of Paposhvili is correct:

  1. Article 3, an unqualified right, has a high threshold for its application;
  2. The Grand Chamber in Paposhvili noted that “N v United Kingdom was a case in which there had been no violation of Article 3 where removal of the applicant would result in a significant reduction in her life expectancy”.
  3. The Grand Chamber repeated the wording used in N v United Kingdom, that only “very exceptional circumstances” would suffice for a breach of Article 3 in such circumstances;
  4. The Grand Chamber used the term “clarify” concerning its approach to N v United Kingdom; and
  5. The Grand Chamber repeated that there would remain “a high threshold for the application of Article 3″ in medical cases.

The Court of Appeal then gave reasons why the applicants’ broader interpretation of Paposhviliis mistaken. The court accepted that the phrase “would face a real risk … of being exposed … to a significant reduction in life expectancy” could, out of context, be interpreted extremely widely – i.e. anyone who faces a risk of lower life expectancy owing to inferior treatment in their country of origin would be protected. However, because of the five reasons above, and because the Grand Chamber in Paposhvili “plainly regarded [N v United Kingdom] as rightly decided”, the Court of Appeal stated that it would be impossible to infer that meaning, which would “reverse the effect of N v United Kingdom” [para 40].

Finally, the Court of Appeal considered it significant that the Grand Chamber stated that the Paposhvili case merely raised the procedural obligation under Article 3, that is, that the Belgian authorities were required to carefully examine the case with reference to all available evidence. The Grand Chamber did not state that a substantive violation of Article 3 would definitely have occurred if Mr Paposhvili were removed to Georgia.

What AM (Zimbabwe) means for practitioners undertaking Article 3 medical cases

Sales LJ, giving the unanimous judgment of the Court of Appeal, made it clear that the Court’s interpretation of Paposhvili v Belgium is to be binding on lower courts. Practitioners should therefore ensure their Article 3 medical cases fulfil the test laid down by the Court of Appeal in AM (Zimbabwe), rather than attempt to persuade tribunals of their own interpretation of Paposhvili v Belgium. For more guidance on what the Court of Appeal judgment means for practitioners, see this article on Free Movement.

Interpretative problems: does AM (Zimbabwe) construct Paposhvili too strictly?

The Court of Appeal in AM (Zimbabwe) seemingly had the choice between the interpretation posed by the Appellants and the restrictive position which they chose. The interpretation of Paposhvili required to allow the two Appellants’ cases to pass the test set out in Paposhviliwould be unrealistically wide. The facts of their cases are weak in comparison to those of Dand even N. The First Appellant, AM, is HIV positive and his condition is being managed by the drug Eviplera, which is not available in Zimbabwe. However, there was no evidence that he could not tolerate any other drugs available in Zimbabwe. The Second Appellant, Mr Nowar, suffered cancer twice but is in full remission. The first time his cancer was treated successfully in Jordan and the second time in the UK, by a form of stem cell transplant not available in Jordan. However, Mr Nowar is worried he may suffer a recurrence and believes he would receive better treatment in the UK in such circumstances.

For the Appellants’ cases to succeed, it would have required an interpretation of Paposhvili to be that the mere possibility of life expectancy being significantly reduced in the receiving state is potentially sufficient to be a breach of Article 3. Given the severity of the illness of the Applicant in Paposhvili, and given the careful phrasing of the test at paragraph 183 of Paposhvili, it is highly doubtful whether the Grand Chamber intended the test to be interpreted so broadly.

That said, the Court of Appeal’s answer, which is to read the requirement for a “rapid irreversible decline in his or her state of health” as going both to intense suffering and to a significant reduction of life expectancy, is not the only solution. There are strong reasons to be doubtful that the Court of Appeal’s narrow interpretation is correct. These are as follows:

1. It is inconsistent with the words used to lay down the test in Paposhvili

Paragraph 183 is the core of Paposhvili, as this is where the Grand Chamber set down the new test to be applied throughout Europe. If the Grand Chamber was going to phrase any part of this judgment carefully, it would be here. Here is the test at para 183, cited in English and French:

… would face a real risk … 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.

ferait face…à un risque réel d’être exposée à un déclin grave, rapide et irréversible de son état de santé entraînant des souffrances intenses ou à une réduction significative de son espérance de vie. [my emphasis in both]

The difficulty with the Court of Appeal’s interpretation is that second word ‘to’. It suggests that “significant reduction is life expectancy” is to be read separately and is not conditioned by the requirement for a “serious, rapid and irreversible decline” in state of health. If the Court of Appeal’s interpretation is right, this passage should have read:

… would face a real risk … of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or in a significant reduction in life expectancy.

The Grand Chamber might perhaps have slipped in its pronoun use and still meant that the requirement of a serious, rapid and irreversible decline should apply not only to a significant reduction in life expectancy but also to intense suffering, if the French language version of this passage backed up the Court of Appeal’s analysis. But the Grand Chamber apparently mistook its pronouns in French too. If the Court of Appeal’s interpretation were correct, the French would have read “entraînant des … ou d’une reduction…” (“resulting in … or in a significant reduction…”).

The most obvious reading of the Grand Chamber’s deliberate phrasing in both English and French contradicts the Court of Appeal’s position, which suggests that its interpretation is not tenable.

2. The background to Paposhvili suggests that the modification it made to N v United Kingdom is more than a minor facelift

Six judges in Mwanje v Belgium felt strongly enough to write a concurring opinion expressing the wish that the Grand Chamber might one day revisit the jurisprudence of N v United Kingdom because it is inconsistent with the letter and spirit of Article 3. That day arose in Paposhvili. It would be strange if, given this opportunity, the Grand Chamber elected to effect a change to the ‘very modest extent’ which the Court of Appeal suggest.

3. The Court of Appeal seems to have gone too far in its reliance on N v United Kingdom

It is true that the Grand Chamber in Paposhvili described their judgment as “clarifying” what counts as a “very exceptional” case in the terms used in N v United Kingdom, and that the Grand Chamber did not seek to overturn N v United Kingdom. However, the Court of Appeal went further in its reasoning, stating that the Grand Chamber “plainly regarded [N v United Kingdom] as rightly decided”, and “it is impossible to infer that by the formula used in para [183] of Paposhvili the ECtHR intended to reverse the effect of N v United Kingdom”. These statements by the Court of Appeal potentially go too far.

Just because the Grand Chamber did not seek to overturn N v United Kingdom does not mean that it regarded every aspect of that case as rightly decided, or that it intended to leave the general approach of the Grand Chamber largely unchanged. The Grand Chamber in Paposhvilidid not state that N v United Kingdom was correctly decided on its facts, nor what approach they would have taken to the facts in N v United Kingdom.

Indeed, the Grand Chamber in Paposhvili reversed at least some aspects of N v United Kingdom. For example, it decided that intense suffering caused by the disease itself, rather than by the conditions in the receiving country, may be sufficient to constitute a breach of Article 3. This was a point originally made by the dissenting judges in N v United Kingdom. The acceptance of this point in AM (Zimbabwe) reverses an important restriction in N v United Kingdom. If reversing an important part of N v United Kingdom is not problematic here, why would it be ‘impossible to infer that by the formula in para [183]’ the Grand Chamber reversed a different element of the restrictions in N v United Kingdom

A third way?

In my view, the correct interpretation of paragraph 183 of Paposhvili is neither the very open suggestion of the Appellants, that the mere possibility of a significant reduction in life expectancy as a result of absence of appropriate treatment is sufficient to breach Article 3, nor the restrictive position of the Court of Appeal.

Rather, paragraph 183 should be read as requiring the following to raise an issue under Article 3:

  1. The individual must be “seriously ill”. This means that Mr Nowar, who is in full remission, and therefore not ill, would not succeed.
  2. The individual must show substantial grounds for believing that he or she would face a real risk of being exposed to: (a) a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering; or (b) a significant reduction in life expectancy.
  3. The exposure would occur because of the absence of appropriate treatment in the receiving country or the lack of access to such treatment.

As regards how part 2 is approached, the Grand Chamber in Paposhvili at paragraph 186 requires potential applicants to “adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3”. Where such evidence is adduced, the authorities must dispel any doubts raised by it (Paposhvilipara 187).

There are two benefits to this interpretation: first, it stays faithful to the careful phrasing of the Grand Chamber; secondly, it recognises the important restrictions which the Grand Chamber placed so that only “very exceptional” cases would successfully pass the test and raise an issue under Article 3.

Furthermore, it would appear to work in practice. Let us take AM’s case as a worked example. He is HIV-positive, so he is seriously ill, passing part 1. Furthermore, he would likely suffer a drastically reduced life expectancy if he were to receive no treatment in Zimbabwe (passing part 3).

AM’s case, in my view, fails because he has provided no evidence that he could not tolerate any of the other treatments available in Zimbabwe (AM (Zimbabwe) para 5), and as such has provided no evidence capable of demonstrating substantial grounds for believing that he would face a real risk of being exposed to a serious, rapid and irreversible decline in his or her state of health significant or a significant reduction in his life expectancy. Hence AM fails part 2 of the test.

As can be seen above, the operation of the gateways intentionally provided by the Grand Chamber in Paposhvili do not open the floodgates for comparatively weak cases to pass through. By contrast, the deliberate phrasing by the Grand Chamber lays down a careful balance by removing the overly restrictive bars laid down in N, but accepting only the most exceptional humanitarian cases.

It is hoped that the Supreme Court will soon have an opportunity to decide on the correct interpretation of Paposhvili. As Sales LJ at para 46 and other commentators have warned, it is highly doubtful whether AM and Nowar are the right vehicles to carry through this change. Their legal representatives would have to argue an unlikely interpretation of Paposhvili for their cases to be allowed. If the Supreme Court, like the Court of Appeal, does not hear argument on whether a third, middle, way can be found, then they are likely to choose the Scylla of the Court of Appeal’s restrictive interpretation over the Charybdis of the Appellants’ overly permissive interpretation. But neither seem to be the correct interpretation.

Paul Erdunast is a student on the Bar Professional Training Course and a regular contributor to Free Movement. This article was first published by the UK Human Rights Blog