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Supreme Court Judgment in AM (Zimbabwe): Paposhvili finally applied in the UK
5 May 2020
On 20th April 2020, the Supreme Court issued its long awaited judgment in AM (Zimbabwe) v SSHD  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  ECHR 1113, commenting that the interpretation given to test by the Court of Appeal in (AM) Zimbabwe  EWCA Civ 64 had been “unduly narrow”. Notably, the Court departed from the House of Lords decision in N v SSHD  2 AC 296.
The 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  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  2 AC 296. This case also involved an HIV-positive appellant who had suffered AIDS-defining illnesses. Her life expectancy would be cut short from decades (in the UK, with treatment) to 2 years, if removed to her native Uganda. 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. 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.
This high threshold was revisited domestically in GS and others v SSHD  EWCA Civ 40. These involved a set of appeals brought by people suffering from end stage kidney disease. The life expectancies of the appellants would be reduced to a matter of weeks if they stopped receiving regular dialysis as a result of their removal from the UK. The Court of Appeal held that such a case did not fall within the scope of the “very exceptional circumstances”, envisaged by the cases of D and N.
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.
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”.
Paposhvili also clarified the procedural obligation on a ‘removing State’ in cases such as these. It was held that a detailed examination of the situation in the country of proposed return is required. If an applicant presents evidence “capable” of demonstrating they would be exposed to a real risk of a breach of Article 3, a procedural obligation is engaged whereby the ‘removing State’ must “dispel any doubts raised by it”.
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, Evliplera 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”. Sales LJ (as he then was) was of the view that their judgment would serve as more than persuasive authority:
“We are providing authoritative guidance on the true interpretation of a legal criterion governing how courts and tribunals in the domestic legal system should make judgments regarding the exercise of their powers to grant stays of removal. That guidance will be formally binding upon courts and tribunals below the level of the Supreme Court, in the usual way”.
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 Sales LJ that the appellants’ cases fell a long way short of satisfying the test in Paposhvili.
In the cases that followed this judgement, the Court of Appeal and Upper Tribunal respectively found in a number of appeals that they continued to be bound by the case of N and that sufficient guidance had been given by the Court of Appeal in (AM) Zimbabwe.
In AXB (Art 3 health: obligations; suicide) Jamaica  UKUT 00397 (IAC), the Upper Tribunal issued guidance on the procedural obligation on States, following Paposhvili. The Upper Tribunal at this stage remained bound by the principles set out in D and N regarding the applicable threshold for Article 3.
The headnote of AXB sets out the interpretation of the obligations of a Returning State dealing with a health case, which is primarily one of examining the fears of an applicant as to what will occur following return and assessing the evidence (carried out by the Secretary of State when examining the case, and then the Tribunal when examining the case on appeal). Headnote 3 deals with the burden and threshold that apply:
“If the appellant provides evidence which is capable of proving his case to the standard which applies, the Secretary of State will be precluded from removing the appellant unless she is able to provide evidence countering the appellant’s evidence or dispelling doubts arising from that evidence. Depending on the particular circumstances of the case, such evidence might include general evidence, specific evidence from the Receiving State following enquiries made or assurances from the Receiving State concerning the treatment of the appellant following return.”
AM (Zimbabwe): Supreme Court follows Paposhvili and depart from N
In last week’s judgement, the Supreme Court provided ‘authoritative guidance on the true interpretation’ (as one might call it) of the test in Paposhvili. The Supreme Court explicitly (unlike the Grand Chamber) disagreed with the suggestion that the test in Paposhvili was compatible with that in N, and described the decision as ‘charting growth’ and a “new focus”.
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, 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 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 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.
The Supreme Court judgment in AM (Zimbabwe) is to be welcomed. Foremost, 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.
Furthermore, the Supreme Court used its judgment as an opportunity to assert both its independence from and its agreement with the ECtHR. Initially, the Court openly states that its refusal to follow a decision of the ECtHR can no longer be regarded as always inappropriate. However, it subsequently finds that there is no question they are refusing to follow the decision in Paposhvili. Instead, the Court declares it will depart from the House of Lords decision in N, due partly to the “unease” of the distinction contained within it.
The website of Right to Remain has published a shorter version of this blog here.
One Pump Court Chambers
4th May 2020
Posted by Right to Remain – Article Here
 See for example: MM (Malawi)  EWCA Civ 2481, SL (St Lucia) v SSHD  EWCA Civ 1894, and PF (Nigeria)  EWCA Civ 1139, EA and ors  UKUT 00445 (IAC) and AXB (Art 3 health obligations; suicide) Jamaica  UKUT 00397 (IAC).Back to News