Success at the Supreme Court: Article 3 ECHR claims based on ill-health 

The Supreme Court unanimously allows the appeal of AM (Zimbabwe) from the Court of Appeal's decision in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64 [2018] 1 WLR 2933.

The Appellant, Mr AM, is HIV positive and is facing deportation to Zimbabwe. His condition is currently controlled by an anti-retroviral drug, Eviplera. He was placed on Eviplera after first having tried another anti-retroviral drug, which produced significant side-effects. Eviplera, unfortunately, is not available in Zimbabwe. The Home Secretary, nevertheless, decided that his deportation to Zimbabwe would be compatible with Article 3 of the European Convention on Human Rights, which prohibits him from being "subjected to torture or to inhuman or degrading treatment or punishment". The First Tier Tribunal, the Upper Tribunal and the Court of Appeal all agreed with the Home Secretary's position.

The Appellant conceded before the Courts below that he was not able to resist his deportation on Article 3 grounds on the basis of the binding domestic authority, namely, the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31 [2005] 2 AC 296. By that decision, as elucidated in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40 [2015] 1 WLR 3312, the House of Lords had held that the only exception to the general principle that a member state is not obliged to allow someone to stay in order to benefit from medical treatment is "confined to deathbed cases". The Appellant was not on the "deathbed". Therefore, on the binding domestic authority, he was not able to argue before the lower Courts that his deportation to Zimbabwe would result in a breach of Article 3.

The Appellant, however, took his case to the Supreme Court and argued that it should depart from the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31 [2005] 2 AC 296. He argued that the domestic case-law was irreconcilable with the Strasbourg's latest approach on the subject, as set out in Paposhvili v Belgium [2016] ECHR 1113 [2017] Imm AR 867. He invited the Supreme Court to review the domestic approach and follow the evolved Strasbourg's approach.

There were three issues before the Supreme Court, namely:

a) whether the Supreme Court should depart from the test set out in N v Secretary of State for the Home Department [2005] UKHL 31 [2005] 2 AC 296, as elucidated in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40 [2015] 1 WLR 3312, and instead adopt the approach taken in Paposhvili v Belgium [2016] ECHR 1113 [2017] Imm AR 867;

b) whether the Court of Appeal's reading of Paposhvili v Belgium [2016] ECHR 1113 [2017] Imm AR 867 was correct and, if not, how Paposhvili v Belgium [2016] ECHR 1113 [2017] Imm AR 867 should be read; and

c) whether the Appellant's appeal should be allowed and remitted for reconsideration in light of the Supreme Court's answers to (a) and (b).

The Supreme Court, at the outset, recognised that it was required to consider"one of the most controversial questions which the law of human rights can generate". The Supreme Court added that "considerations of public policy on the one hand and of what is said to be private existential need on the other clash like warriors; and upon the courts lies a heavy burden in determining which should, under the law, prevail": see [1].

The Supreme Court, in its judgment, analysed "six main authorities" on the subject: see [13]-[26]. After analysing those authorities, the Supreme Court held that the Court of Appeal's reading of Paposhvili v Belgium [2016] ECHR 1113 [2017] Imm AR 867 was "too much of a leap": see [30]. The Supreme Court held that the Court of Appeal's "unduly narrow interpretation" of the Strasbourg's authority was wrong in law: see [34]. The Supreme Court gave guidance as to how Paposhvili v Belgium [2016] ECHR 1113 [2017] Imm AR 867 should be read, including guidance on procedural requirements of Article 3.

In this context, the Supreme Court decided to depart from the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31 [2005] 2 AC 296.

On the facts of this particular case, the Supreme Court held that the Court of Appeal's conclusion about "insufficiency" of medical reports adduced by the Appellant was "flawed". The Supreme Court added that it was "inappropriate" for the Court of Appeal "to extract the medical reports from the other evidence submitted in furtherance of the claim under article 8 and to ask whether they cross the threshold now required of an applicant under article 3": see [37].

Accordingly, the Supreme Court allowed the Appellant's appeal and remitted the matter for re-hearing on up-to-date evidence.

Zane Malik appeared for the Appellant, Mr AM.

Lisa Giovannetti QC and Rory Dunlop QC, appeared for the Respondent, the Home Secretary.

The Supreme Court's full judgment is available here.

The Press Summary is available here.