Supreme Court judgment in AM (Zimbabwe): Paposhvili finally applied in the UK

Legal Updates

This is a guest legal blog post written by Angelina Nicolaou and Daniel Grütters of One Pump Court Chambers. The website of One Pump Court Chambers has published a longer version of this blog post here.

On 20th April 2020, the Supreme Court issued its long awaited judgment in AM (Zimbabwe) v SSHD [2020] UKSC 17. The case is a seminal moment in domestic jurisprudence, addressing the correct threshold to be applied when considering whether the removal of seriously or terminally ill persons would breach their rights under Article 3 of the European Convention on Human Rights (i.e. prohibition on torture and inhuman or degrading treatment or punishment).

The Supreme Court decided to follow the “growth” of the protection of Article 3 charted by the European Court of Human Rights (ECtHR) in Paposhvili v Belgium [2016] ECHR 1113, commenting that the interpretation given to the test by the Court of Appeal in (AM) Zimbabwe [2018] EWCA Civ 64 had been “unduly narrow”. Notably, the Court departed from the House of Lords decision in N v SSHD [2005] 2 AC 296.

This post sets out the development of the relevant caselaw and its significance for future immigration appeals in the UK.

Caselaw before Paposhvili

In D v UK [1997] ECHR 25, the ECtHR found that that there could be “very exceptional circumstances” in which a person’s removal would breach Article 3, where their suffering would be caused by ‘naturally occurring illness’. The case involved the proposed return of a person dying from AIDS to St Kitts, his country of origin. If returned, he would have no access to adequate medical, family, moral or social support whilst dying. Removal was held to constitute a breach of his Article 3 rights.

In the cases which followed, both the UK courts and the ECtHR adopted an extremely restrictive approach to what could constitute “very exceptional circumstances”.

The marker for this restrictive approach was set down by the House of Lords in N v SSHD [2005] 2 AC 296. This case also involved an HIV-positive appellant who had suffered AIDS-defining illnesses. With the treatment available in the UK, she would likely live for decades; if she were returned to her native Uganda the prospect of her surviving beyond two years was bleak.

However, the House of Lords found that the protection of Article 3 only extends to those cases where the person’s illness has reached “such a critical stage (i.e. he is dying)”, and removal would send them to an early death unless there is care available to enable them to meet that death with dignity.

Following the House of Lords decision, the appellant (N) applied to the ECtHR. However, the Grand Chamber of the ECtHR affirmed the approach taken by the House of Lords and found no violation of Article 3 in her removal to Uganda.

To many, there has always been difficulty in justifying the distinction between those who are already dying and those whose medical conditions is such that they are likely to die significantly sooner if removed. It is no hyperbole to say that for people in these situations, their claims are a matter of life and death.

Paposhvili

In Paposhvili, the Grand Chamber of the ECtHR recognised the limiting effect of the high threshold of “very exceptional circumstances”. It found that it had the potential effect of reducing people’s rights under Article 3 to the “theoretical and illusory”. The ECtHR therefore “clarified” (a misnomer if there ever was one) the meaning of the category as referring 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”.

Caselaw after Paposhvili

When AM (Zimbabwe) was heard by the Court of Appeal in January 2018, it seized the opportunity to consider the impact of Paposhvili. In AM (Zimbabwe) the (lead) appellant was HIV positive and was on an anti-retroviral drug (ARV) in the UK called Eviplera. He had first tried another ARV which had produced significant side-effects. If returned to Zimbabwe, Eviplera would not be available to him for treatment.

The appellants both recognised that the facts in their case meant they were unable to meet the test set out in N which was binding on UK courts and tribunals, unlike Paposhvili. They therefore invited the Court to dismiss their appeal but to grant permission for an appeal to the Supreme Court, where a judgment could depart from N and follow the test as set out in Paposhvili .

Instead, the Court of Appeal seized the opportunity to “review and rule upon the meaning and effect of the guidance in Paposhvili,” with a view to ensuring that courts and tribunals “adopt a uniform and consistent approach”. The Court of Appeal held that the relaxation of the test for violation of Article 3 in Paposhvili did so “only to a very modest extent” and that the Grand Chamber had plainly regarded N as rightly decided. Accordingly, despite the fact that N’s removal resulted in a very significant reduction in life expectancy, it would not have been a breach of her Article 3 rights.

The court held that the boundary of Article 3 protection had shifted from ‘imminence of death’ to ‘imminence of intense suffering or death in the receiving state’. When dismissing the appeals it was the view of one of the three Court of Appeal judges – Sales LJ – that the appellants’ cases fell a long way short of satisfying the test in Paposhvili.

AM (Zimbabwe): Supreme Court follows Paposhvili and departs from N

In last week’s judgement, the Supreme Court provided authoritative guidance on the true interpretation of the test in Paposhvili. Unlike the Grand Chamber, the Supreme Court explicitly disagreed with the suggestion that the test in Paposhvili was compatible with that in N and referred to it having a “new focus”. The Court observed that rather than ‘clarifying’ the approach to be taken in cases such as this, the ECtHR had charted the growth of the Convention as a living instrument.

The Supreme Court also disagreed with the analysis by the Court of Appeal that the test in Paposhvili reflected only a “very modest” extension of the protection of Article 3. The approach by Sales LJ (one of the Court of Appeal judges), that Article 3 protection had (only) been shifted from ‘imminence of death’ to ‘the imminence of intense suffering or death’, was explicitly rejected. Instead, the Court held that the test in Paposhvili, is whether an applicant is exposed to a real risk of an imminent decline in health or to a significant reduction in life expectancy. The Court was clear that the phrase “significant reduction in life expectancy” does not translate to “imminence of death”.

The judgment of the Supreme Court also touched upon the procedural obligation on removing states when an appellant presents evidence capable of showing they would be exposed to a real risk of breach of Article 3. The judgment referred positively to the Upper Tribunal guidance in the case AXB.

However, the Supreme Court also noted that the procedural requirements of Article 3 as set out in Paposhvili “can on no view be regarded as mere clarification of what the [ECtHR] had previously said.” The Grand Chamber is expected to ‘shed light on the extent of the requirements’ when it gives judgment in the case of Savran v Denmark.

Conclusion

The Supreme Court judgment in AM (Zimbabwe) is to be welcomed.

It removes the untenable distinction between those who are already dying and those whose medical conditions is such that their life expectancy will be significantly reduced if removed.



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