Court of Appeal refuses permission to appeal in Article 3 case — Vanessa Long

20 November 2018 by Guest Contributor

In the recent judgement of MM (Malawi) & MK (Sri Lanka) v SSHD [2018] EWCA Civ 2482 the Court of Appeal declined to grant permission to appeal to the Supreme Court for consideration of whether the test under Article 3 for removal of foreign nationals in medical cases, as set out in Paposhvili v Belgium [2017] Imm AR 867 , was correctly interpreted by the Court of Appeal in AM (Zimbabwe) v SSHD [2018] EWCA Civ 64.

Background

The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.

In 1997 the European Court of Human Rights (ECtHR) determined in D v UK  (Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.

The current leading domestic authority is N v Secretary of State for the Home Department [2005] UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:

For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]

Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK (Application no. 26565/05).

The ECtHR reconsidered this issue in Paposhvili v Belgium (Application no. 41738/10) setting out the test for these types of cases at paragraph 183:

The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in [N]… 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 …

This test is clearly different to the wording of the test set out in N and it is accepted by the UK Courts that it has relaxed the test; the question is to what extent.

In AM (Zimbabwe) v SSHD [2018] EWCA Civ 64 Sales LJ considered the new test in Paposhvili and interpreted the change as follows [para 38]:

[T]he 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.

 Although it is not immediately obvious, this formulation of the test differs from the wording of the Paposhvili test in the important way. The difference and its implications have been argued succinctly on the Blog here.

However, in a very brief summary, Sales LJ has interpreted paragraph 183 of Paposhvili like this:

The applicant must face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health resulting in:

• intense suffering; or
• to a significant reduction in life expectancy.

The alternative interpretation of paragraph 183 is this:

The applicant must face a real risk of being exposed:

• to a serious, rapid and irreversible decline in his state of health resulting in intense suffering; or
• to a significant reduction in life expectancy.

The difference being that in the latter interpretation the ‘significant reduction in life expectancy’ does not need to have been caused by a ‘serious, rapid and irreversible’ decline in the applicant’s health.

In AM (Zimbabwe) Sales LJ did consider whether the latter interpretation was correct, but concluded that such an interpretation would cast the net of Article 3 too widely, as there would be many circumstances in which the medical treatment in the removing state would be superior to that in the receiving state. Therefore, Sales LJ determined that such an interpretation of Paposhvili was untenable.

The Facts of this case

MM & MK

MM and MK came to the UK in 2002 and 2004 respectively and married whilst they were lawfully present. In 2010 MM was diagnosed as HIV positive and began receiving antiretroviral drugs (ARVs), which she was required to take in liquid form.

MM and MK made an application for leave to remain on human rights grounds which was refused by the Secretary of State. On appeal the First-tier Tribunal allowed the appeal on Article 3 grounds, however, this was overturned by the Upper Tribunal (UT). The Court of Appeal directed the UT to conduct a further fact-finding hearing at which it was determined, on the basis of expert evidence, that the ARVs would be available in liquid form in Malawi.

MV

MV arrived in the UK without leave in 2014 and, following a failed asylum claim, made an application to remain under Articles 3 and 8. The Article 3 claims was based on his forced recruitment by the Liberation of Tigers of Tamil Eelam (LTTE) and the PTSD he was suffering as a result.

MV relied on the evidence of a psychiatrist who considered he should receive drug therapy and psychotherapy (although he was at the time of his appeal only receiving drug therapy). It was accepted for the purposes of the appeal that the drug therapy would be available in Sri Lanka, but that the psychotherapy would not. MV therefore, argued that he was at an increased risk of suicide without access to the recommended psychotherapy.

The Issue in the case

It was common ground between the parties that none of the Appellants could satisfy the test from N (as explained in AM (Zimbabwe)) and that, as the Court of Appeal was bound by this decision, the appeals would inevitably fail. However, the Appellants argued that they satisfied the criteria under Paspohvili and therefore, permission to appeal to the Supreme Court should be granted to enable consideration of whether AM (Zimbabwe) had correctly interpreted Paposhvili.

The Court of Appeal’s decision

MM and MK’s appeals were largely sunk by the findings of the UT that the necessary medication (i.e. liquid ARVs) would be available in Malawi. Therefore, the appeals were dismissed on the basis that there was no real risk of a decline in MM’s health or a reduction in her life expectancy.

In relation the MV’s appeal the Court of Appeal noted at paragraph 55:

The real issue is again whether, because MV satisfies the criteria in Paposhvili, this case might be an appropriate vehicle for the Supreme Court to revisit the criteria in article 3 medical cases.

Unfortunately for the appellants, Hickenbottom LJ swiftly concluded in the subsequent paragraph that ‘it is my firm view that it is not’.

The judgment sets out the argument of MV’s counsel, Stephen Knafler QC, regarding the correct interpretation of paragraph 183 of Paposhvili in which he asserts that the AM (Zimbabwe) interpretation is incorrect for similar reasons as argued on this blog, i.e. that the ‘significant reduction in life expectancy’ does not need to result from expose to a ‘serious, rapid and irreversible’ decline in health.

At paragraph 58 Hickinbottom LJ expressed some concern about this:

Of course, I was a member of the constitution in AM (Zimbabwe), and I agreed with Sales LJ’s judgment. Like him, I see difficulties in the construction suggested by Mr Knafler, which appears to emasculate the alternative limb expounded in D and N and endorsed in Paposhvili, i.e. that there would be an imminent risk of dying. Nevertheless, I do not suggest that Mr Knafler’s favoured construction is fanciful or even unarguable.

But Hickinbottom LJ concluded that

the available evidence falls far short of showing any real risk that MV’s life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka. [paragraph 63]

Conclusion

The Court of Appeal’s hands were tied in relation to the restrictive interpretation of Paposhvili in AM (Zimbabwe) and, as was accepted by all parties, this was fatal to the appeals. On the facts, it is also difficult to argue that the Court of Appeal was wrong to refuse permission to appeal to the Supreme Court; in MM and MK the evidence pointed to the treatment being available in Malawi and in MV there was insufficient evidence to establish a significant reduction in life expectancy.

However, in its determination on MV’s appeal the Court of Appeal perhaps gives some hope to appellants, that if their circumstances are such that they might satisfy the less restrictive interpretation of Paposhvili such a case might constitute the ‘appropriate vehicle’ for the Supreme Court to reconsider whether that decision has been given proper effect by our domestic courts.

Vanessa Long is a barrister at One Crown Office Row (Brighton).