‘One of the most controversial questions which the law of human rights can generate’: Supreme Court alters approach to Article 3 in medical cases – an extended look
29 April 2020
Unlike some of the rights protected by the European Convention on Human Rights, the prohibition on torture or inhuman or degrading treatment under Article 3 is absolute. There is no question of striking a balance between Article 3 and other considerations: the state simply may not act in a way which would breach this prohibition.
This means that this right can offer crucial protection to the sorts of people that some members of the public may not have instinctive sympathy towards, such as an immigrant with a serious criminal history who may otherwise struggle to resist deportation. Even if their case is otherwise unattractive, if it is shown that deporting them would expose them to inhuman or degrading treatment (or indeed constitute such treatment), their appeal must succeed.
In certain circumstances this will include a person with a serious medical condition who resists removal on the basis that the disparity between medical care in their country of origin compared to their host state would mean that removing them would constitute inhuman or degrading treatment. Such cases had previously been considered to succeed primarily for a person close to death, where removal would involve “in effect, pulling a man off his deathbed” (AM (Zimbabwe), para 14).
However, in AM (Zimbabwe) v Secretary of State for the Home Department  UKSC 17, the Supreme Court has held that the proper approach to Article 3 was modified by the European Court of Human Rights in Paposhvili v Belgium  Imm AR 867. The relevant test now is whether removal would give rise to a real risk of a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering, or to a substantial reduction in life expectancy. This does not require that death be imminent in the event of removal.
The facts of AM (Zimbabwe)
The appellant is a 33-year old man from Zimbabwe who has resided in the UK since 2000. He was granted indefinite leave to remain here in 2004. However, he then became involved in criminal offending – from 2005 onwards he was convicted for assault, receiving stolen goods and possession of sharp blades and the Home Secretary made a decision to deport him back to Zimbabwe. But despite his subsequent appeal being dismissed, he had still not been deported in 2009 when he was convicted for possession of a firearm and possession of heroin with intent to supply and sentenced to 9 years imprisonment in total. In due course, after being released on licence, he was sentenced to an additional 6 months in 2013 for bringing cannabis into prison when on a visit.
However, the appellant has also been HIV positive since 2003. The evidence presently available indicates that his CD4 blood count began to fall in 2011 and he commenced antiretroviral therapy (ART) in 2012. The first drug which was used gave rise to intolerable side effects (vomiting, stomach cramps, dizziness and night sweats) and his clinic switched him to the drug, Eviplera. He tolerated this well, his CD4 blood count rose and his HIV viral load fell to undetectable levels. This, however, depended on his continuation of regular treatment with this medication.
The essence of his case is that to deport him to Zimbabwe would involve a breach of his rights in that it is doubtful whether he would be able to access ART there, without which his CD4 blood count would fall and he would be prey to opportunistic infections which could lead to his death.
Movement in the law
The deeper issue at stake is the extent to which a host state may not remove a person where there is a risk that the medical care available to them in their country of origin is lacking. At what point would such a step constitute “inhuman or degrading treatment”?
The position reached by the courts in D v United Kingdom (1997) 24 EHRR 423, N v Secretary of State for the Home Department  UKHL 31, N v United Kingdom (2008) 47 EHRR 39 and Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR 35 was essentially that the Article 3 right would only be breached if the person’s state of health was so critical that removal would lead to their early death and the lack of care in the country of origin would not allow them to face this fate with dignity. As a shorthand, this is sometimes described as a requirement for it to be a ‘deathbed case’.
The logic underlying this approach is that too wide an obligation to provide free and unlimited treatment for a serious condition which could not be treated in a person’s country of origin would place too great a burden on states contracting to the ECHR. The policy argument the other way, however, would be that the obligation not to expose a person to inhuman and degrading treatment should not be taken so restrictively: there may well be cases where removal would result in such serious suffering that it would be inhuman or degrading to expose the person to it even if they are not on their deathbed. Furthermore, it might be argued that drastically reducing a person’s life expectancy to a matter of months or even weeks may itself be described as inhuman or degrading.
D’s case succeeded. He was an AIDS sufferer with a CD4 count of below 10 (normal level is over 500) with life expectancy of no more than a year, no drug treatment for AIDS available in St Kitts (where it was proposed that he be removed) and with no family or support structure there.
However, N’s case was dismissed. She was also an AIDS sufferer whose CD4 count had fallen to 10, but thanks to ART and chemotherapy in the UK it had recovered to 414 and her condition had stabilized. If she remained in the UK, she was likely to live for decades. But her prospects of survival in Uganda for more than two years were bleak. Nonetheless, despite apparent discomfort felt by the judges of the House of Lords who decided her case, the unanimous conclusion was that the illness was not sufficiently critical that it would be inhuman to remove her to Uganda.
The European Court of Human Rights upheld the decision in N by a majority, though it left open the possibility that aside from ‘deathbed cases’ there might be “other very exceptional cases in which the humanitarian considerations are equally compelling” (N v UK, para 43; AM (Zimbabwe), para 18). Yet stirrings in the law were already detectable by the time of Yoh-Ekale Mwanje, where although the case (on similar facts to N) was dismissed, six of the seven judges of the Strasbourg Court added a concurring opinion which stated that “such an extreme threshold of seriousness – to be nearing death – is hardly consistent with the letter and spirit of article 3 … We hope that the Court may one day review its case law” (Mwanje, para OI-6; AM (Zimbabwe), para 19).
The big change would come next. In Paposhvili, the European Court of Human Rights considered the case of a person with advanced chronic lymphocytic leukaemia for which he was being treated with the medication Ibrutinib, with the hope that this might improve his condition enough for him to receive a blood stem cell transplant. The evidence was that without this drug he was likely to die within six months and that neither the medication nor a transplant would be available in Georgia (the appellant’s country of origin).
The Court held that the approach to Article 3 had to be “clarified”, stating that the “other very exceptional cases” noted in N v UK
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. (Paposhvili, para 183; AM (Zimbabwe), para 22)
Behind this phraseology, the analysis of the Supreme Court in AM (Zimbabwe) is that the application of the principle above would have led to a contrary conclusion in N itself (AM (Zimbabwe), paras 22, 27). Therefore, the Supreme Court held that this reasoning represents a crucial widening of the Article 3 test. The conclusion of Lord Wilson (giving the unanimous judgment of the Court) was that
The Grand Chamber’s pronouncements … can on no view be regarded as mere clarification of what the court had previously said … It is clear that, in application to claims under article 3 to resist return by reference to ill-health, the Grand Chamber has indeed modified that principle.” (AM (Zimbabwe), para 32)
This is a different conclusion to that of the Court of Appeal in this case, analysed in detail by Paul Erdunast on this blog here.
The procedural requirements of Article 3
As well as laying down an overall test, the Court in Paposhvili also gave detailed guidance as to the procedural requirements under Article 3, which is analysed in AM (Zimbabwe) at paragraph 23. The proper procedure enacts a modified form of a ‘tennis match’ between an applicant and a returning state:
- The applicant must first adduce evidence “capable of demonstrating that there are substantial grounds for believing” that removal would give rise to a real risk of a breach of Article 3 (i.e. raise a ‘prima facie’ case).
- If such evidence is provided, the returning state must “dispel any doubts raised by it” (glossed by the Supreme Court as any “serious doubts” at para 33) by scrutinizing the alleged risk and providing evidence relevant to the particular facts as to whether the care available in the country of origin was sufficient to prevent exposure to inhuman or degrading treatment. Importantly, this must also involve consideration of the accessibility of the treatment to the particular applicant, including by reference to its cost, the existence of a family network and to its geographical location.
- But if serious doubts remain (the returning state has not managed to ‘return serve’), the state then has a further opportunity to address the applicant’s case by obtaining individual assurances from the receiving state that appropriate treatment would be available and accessible to the applicant.
In Paposhvili, the Court held that Belgium had not done enough to discharge its procedural obligations to investigate the availability of the necessary treatment in Georgia.
In a very recent decision of the Fourth Section of the ECtHR in Savran v Denmark  ECHR 651 (decided on 1st October 2019), the weight of this procedural burden was made apparent.
The applicant was a Kurdish-speaking Turkish national suffering from paranoid schizophrenia. Medical evidence was provided to the effect that he required daily medication in the form of Leponex (Clozapine) tablets and that he was resident on a closed ward. In the event that he was discharged without follow-up and control or his medication was interrupted, there was a significant risk of a worsening of his psychotic symptoms. The applicant did not speak fluent Turkish and his entire family resided in Denmark.
As to the likely state of affairs in Turkey, the Danish government provided two reports to the effect that applicant’s medication was available in Turkey, that mentally ill persons are generally eligible for treatment at hospitals on an equal footing with other patients, and that there were schemes to heavily subsidise the cost of necessary medications, and that the hospitals in the relevant region of Turkey (Konya) employed Kurdish-speaking staff (Savran, paras 20, 24).
However, the majority of the Court found for the applicant. Although it was noted that the threshold for the application of Article 3 was high, the fact that the applicant required daily antipsychotic medication gave rise to a risk of pharmaceutical failure which necessitated that there be assistance available in the form of a regular and personal contact person to assist him. In circumstances where the applicant had no family in Turkey, the state had not demonstrated that the applicant’s needs would be met sufficiently to dispel the concern raised under Article 3 (Savran,paras 62-67). This case was accepted for consideration by the Grand Chamber of the Strasbourg Court in January 2020 and it is understood that the UK has applied to intervene (AM (Zimbabwe), para 26).
The Supreme Court’s conclusion
The Court of Appeal in AM (Zimbabwe) had held that the principles in Paposhvili would now protect a person who faced a real risk of imminent death or intense suffering in the receiving state due to non-availability of relevant treatment (see Supreme Court judgment, para 28; Court of Appeal, para 38).
But the Supreme Court accepted the contentions anticipated by Paul Erdunast in his article on this blog that Lord Justice Sales had applied the relevant principle too restrictively. The test for a “significant reduction in life expectancy” laid down by the Grand Chamber at paragraph 183 of Paposhvili did not create a threshold for “imminent” death. Rather, the Strasboug Court created a disjunctive test for a breach of Article 3 where there was a real risk of removal leading either to a “serious, rapid and irreversible decline in … state of health resulting in intense suffering” or to a “significant reduction in life expectancy”. This did not require death to be imminent (AM (Zimbabwe), paras 29-30).
The next question for the Supreme Court was what “significant” meant in the context of a “significant reduction in life expectancy”. Lord Wilson’s conclusion was that
it must in my view mean substantial … [otherwise] it would not attain the minimum level of severity which article 3 requires.
The Court stated that whether a reduction was “significant”, i.e. “substantial” would depend on context – for example, it was indicated that a reduction to two years for a 74-year old might well not be “significant”, whereas for a person aged 24 it might well be.
Despite stating that it may involve “unnecessary complexity”, the Supreme Court then endorsed the procedural ‘tennis match’ approach to Article 3 laid down by Paposhvili and discussed above (at para 32), though it held that the obligation to dispel a prima facie case did not require proof beyond “all doubt”; rather, the requirement is to dispel “serious doubts” (para 33).
As to the particular case, the Court held that in circumstances where the claim under Article 3 had not been put or evidenced before the First-tier or Upper Tribunals (understandably, given that it predated Paposhvili), the case would be remitted back to the Upper Tribunal for a panel which would hopefully include the President to consider whether the anticipated further evidence directed on the relevant issues would demonstrate a real risk of the appellant being exposed to a real risk of intense suffering or to a substantial reduction in life expectancy in the event of deportation to Zimbabwe (paras 36-37).
This decision has done much to clarify an area of law where it had become palpable that the approach taken by the Strasboug Court from Paposhvili onwards could not sit easily with the more restrictive interpretation of Article 3 established in N.
The judgment cannot answer all the questions. The Supreme Court has given what guidance it can, but in terms of the “significant reduction in life expectancy” limb of the test, lower courts will now have to examine what this means in a particular case. Moreover, the Court understandably did not engage in detail with the application of the other limb: a “serious, rapid and irreversible decline in health resulting in intense suffering”. It will likely be for lower courts to decide when a case will meet these requirements, in scenarios which can encompass not just HIV, but also other severe bodily and mental illnesses.
It will therefore be important to observe closely what the Upper Tribunal concludes when AM (Zimbabwe) returns there, as well as the Grand Chamber’s anticipated decision in Savran and the further cases that will then come before the courts in future.
Jonathan Metzer is a barrister at 1 Crown Office Row and the commissioning editor of the UK Human Rights Blog.
He is very grateful to Darragh Coffey, also of 1 Crown Office Row, and to Paul Erdunast, pupil barrister at Temple Garden Chambers, for considering and commenting on earlier drafts of this article.
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