Article 3 psychiatric cases: history and latest developments (Part 2) — Ruby Peacock
8 January 2021
In this two-part article, Ruby Peacock, an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town, examines the history of medical claims brought under Article 3 of the European Convention on Human Rights.
The first part analysed the history of how such cases have been decided, with particular focus on claims based on psychiatric illness. This second part will examine the recent developments in the law and what these may mean for the future.
The author is very grateful to Greg Ó Ceallaigh and Sapan Maini-Thompson for their insights and comments when preparing this article.
Paposhvili v Belgium
By the time Paposhvili v Belgium came to be considered by the Grand Chamber, the applicant had sadly passed away. Before his death, he faced a proposed removal to Georgia. However, he had been suffering from several medical conditions, the most serious of which was chronic lymphocytic leukaemia. Crucially, the applicant accepted that, because his medical conditions was stable, he did not meet the D criteria. Intervening, the Human Rights Centre of Ghent University argued that the case presented a unique opportunity to ‘depart from the excessively restrictive approach adopted by the Court in N’ (at para 165). In a unanimous verdict, the Court seized upon this opportunity.
As outlined in Jonathan Metzer’s article, Paposhvili expanded the circumstances in which a person could resist removal to a third country on Article 3 grounds to include:
… 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 (at para 183).
The Court also outlined several significant procedural developments, which placed a greater responsibility on the returning state. In particular, Paposhvili made clear that treatment in the receiving country must be deemed accessible by reference to the practical circumstances likely to be faced by the applicant.
Savran v Denmark
The Paposhvili criteria was applied to mental illness in Savran v Denmark, in which a Turkish citizen with schizophrenia faced a proposed deportation. Savran accepted that his medical condition did not meet the D/N threshold. This is because it was stable owing to a regime of medication, supervision and psychological support. Significantly, the prescribed medication was available in Turkey and could be heavily subsidised or provided free of charge if appropriate. However, the Court confirmed that a regime of supervision and support was essential. Applying Paposhvili, the ECtHR found in favour of the applicant, on the basis that Denmark had failed to ensure that a supervision scheme would be available and accessible to him particularly as his entire family resided in Denmark and would not be able to assist him in Turkey.
However, on 27 January 2020, the Grand Chamber Panel accepted the Danish Government’s request that the case be referred. Although the hearing occurred via video conference on 24 June 2020, the judgment is yet to be delivered by the ECtHR.
It was several years after Paposhvili before the UK Supreme Court was presented with an opportunity to assess its domestic applicability. The case of AM (Zimbabwe) concerned, as with D and N, an HIV positive applicant receiving anti-retroviral treatment in the UK. The Home Secretary sought to remove AM to his country of origin, Zimbabwe, on account of his criminal record. AM accepted that he did not meet the N criteria, but requested that the Court apply Paposhvili and overturn a highly restrictive interpretation of it offered by the Court of Appeal. As described in Jonathan Metzer’s article, the Court found in favour of AM and concluded that the correct way to read paragraph 183 is, ‘requiring exposure to:
- a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering; or
- a significant reduction in life expectancy’.
A ‘significant reduction in life expectancy’ is not, therefore, contingent upon a decline in the state of the applicant’s health.
The new legal landscape
What is the correct test to apply in mental illness and self-harm/suicide risk cases?
As the law currently stands, the correct test is that which is laid out in Paposhvili and AM (Zimbabwe). The judgment in Paposhvili deals with ‘physical and mental illness’ simultaneously on several occasions (at paras 174, 179 and 180), which meant that there was little confusion as to whether Paposhvili would apply to mental illness and self-harm/suicide risk. Any remaining doubt was resolved by Savran. Practitioners are, therefore, assisted by courts’ previous findings that there is no need to apply a different test between physical and mental illnesses, as they now support an application of the lower threshold.
Although the judgment of the Grand Chamber in Savran has not yet been handed down, a webcast of the hearing is available on the ECtHR’s website. During the hearing, Vice-President Kjølbro asked the government to clarify, if, as they argue, the Paposhvili testdoes not apply to persons suffering from mental illness, what the test in such cases should be (at 1:09:28 of the webcast). The parties’ responses reveal two important points:
- It is not in dispute that the Paposhvili test applies to cases of self-harm /suicide; but
- It is disputed whether it applies to cases of serious mental illness where there is no documented risk of self-harm/suicide.
In relation to (2), the applicant argues that ‘it is evident’ that Paposhvili does apply, relying on the reference to the case of Aswat in Paposhvili; ‘that judgment was clearly a background for Paposhvili’ (at 1:20:28). The applicant also contends that their reading accords with other ECtHR authorities which protect mentally ill persons under Article 3 (at 1:21:13). Denmark conversely argues that Paposhvili cannot be meaningfully applied to persons with mental illness and that the D/N threshold should be maintained in such cases (at 1:34:40).
However, even the dissenting judges in Savran found it to be ‘clear from the context that the Grand Chamber had both physical and mental illnesses in mind when it adopted and worded the new criterion’ (at dissenting judgment para 7). It appears likely, therefore, that the Grand Chamber will reject the respondent’s arguments and find that the Paposhvili test applies to cases of mental illness, even if it finds against Savran on the facts of his case. However, practitioners dealing with mental health cases will of course need to keep an eye on the ECtHR. At the time of writing, five months have passed since the hearing; the Grand Chamber judgment may be delivered at any time.
What difference does this make for mental illness and self-harm/suicide risk cases?
Practitioners handling mental illness and self-harm/suicide risk cases pre-Paposhvili dealt with the high threshold in several ways. Many relied more heavily on Article 8 of the Convention, foregoing the absolute nature of Article 3 protection for the lower threshold test associated with Article 8. Following Paposhvili and AM (Zimbabwe), the need to rely on Article 8 is likely to be lessened, if not eradicated, in many cases; it should be possible to succeed within the absolute territory of Article 3.
Other practitioners sought to position cases within the ‘domestic’ category established by J. Given the inconsistent line of jurisprudence outlined above, this technique also involved subjective interpretation of the domestic/foreign division. However, many foreign cases should now be able to succeed when argued as such. It is therefore no longer necessary to attempt to force cases which are solely/mainly foreign into the ‘domestic’ category.
Where the proposed removal is likely to have a significant impact on the illness of the applicant, the judgment in Paposhvili is useful. The Court recognised the shortcoming of the D/N principles, in that they failed to take account of the impact of the removal process and the contracting state’s resultant responsibility (at para 167). Given the prominence of this issue in self-harm/suicide risk cases, this acknowledgement is salient; it represents another way in which Paposhvili does not merely lower the Article 3 threshold, but establishes a flexible framework more suited to mental illness and self-harm/suicide risk cases.
Paposhvili, Savran and AM (Zimbabwe) are likely to have a direct impact on the number of cases which will be successful in this area. Given the notoriously low success rate on the D/N criteria, this is essential progress. As highlighted by Lord Wilson, N would likely have succeeded under the Paposhvili criteria. Similarly, applicants in mental illness and self-harm/suicide risk cases, such as Bensaid and RA (Sri Lanka), would likely have succeeded under the new framework.
To conclude, it is evident that Paposhvili and AM (Zimbabwe) are just as transformative in the context of mental illness and self-harm/suicide risk as they are in the physical illness context. Presently, the correct test to be applied in mental illness and self-harm/suicide risk cases is that which is set out in Paposhvili and further outlined in AM (Zimbabwe). It is unlikely that Savran will change this fact for mental illness cases, and even less likely for self-harm/suicide risk cases. It will therefore be important to observe the first mental illness and self-harm/suicide risk cases argued in the Immigration Tribunals, as there is a strong possibility that the Home Secretary will resist applying Savran domestically or will perceive any attempted application as an expansion of the Paposhvili test and counter it on that basis.