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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 (29 April 2020) URL: http://www.bailii.org/uk/cases/UKSC/2020/17.html Cite as: [2021] AC 633, [2020] 2 WLR 1152, [2020] UKSC 17, [2020] 3 All ER 1003, (2020) 174 BMLR 23, 48 BHRC 297, [2020] Imm AR 1167, [2020] INLR 401 |
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[2020] UKSC 17
On appeal from: [2018] EWCA Civ 64
JUDGMENT
AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent)
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before
Lady Hale Lord Wilson Lady Black Lady Arden Lord Kitchin
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JUDGMENT GIVEN ON |
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29 April 2020 |
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Heard on 4 December 2019 |
Appellant |
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Respondent |
Zane Malik |
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Lisa Giovannetti QC |
Darryl Balroop |
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Rory Dunlop QC |
(Instructed by Shan & Co Solicitors) |
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(Instructed by The Government Legal Department) |
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Intervener (The AIRE Centre) |
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Charles Banner QC |
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Yaaser Vanderman |
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(Instructed by Herbert Smith Freehills LLP) |
LORD WILSON: (with whom Lady Hale, Lady Black, Lady Arden and Lord Kitchin agree)
Introduction
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
For the appellant is HIV positive. He is a citizen of Zimbabwe and his contention, which for reasons which I will explain has not yet been fully developed still less tested, is that, if deported to Zimbabwe, he would be unable to access the medication which, here in the UK, prevents his relapse into full-blown AIDS. So 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.
2. Reliance by the appellant on rights under article 3 has arisen at a late stage in these proceedings, which encompass a challenge on his part, so far entirely unsuccessful, to a decision by the Secretary of State to refuse to revoke an order for his deportation. At the first and second stages of them, namely in his successive appeals to the Immigration and Asylum Chamber of the First-tier Tribunal and then of the Upper Tribunal, the appellant relied only on rights under article 8. Before those tribunals he conceded that, in the light of the decision of the House of Lords in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] UKHL 31, [2005] 2 AC 296, his appeal could not succeed by reference to article 3.
3. But, before the appellant’s further appeal to the Court of Appeal was heard, the Grand Chamber of the European Court of Human Rights (“the ECtHR”) delivered its judgment in Paposhvili v Belgium [2017] Imm AR 867. On advice, the appellant then formed the view that in that judgment the Grand Chamber had given an expanded interpretation of article 3 in the context of a situation such as his own; and so he decided to abandon his reliance on article 8 and to seek to obtain an order for a rehearing before one or other of the tribunals at which he could present a case under article 3. He recognised, however, that, even if, as a result of the judgment in the Paposhvili case, the decision of the House of Lords in the N case, cited in para 2 above, about the breadth of that article had become out of step with the jurisprudence of the ECtHR, that decision remained binding on the Court of Appeal: Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. Accordingly he conceded before the Court of Appeal that, at that level, his appeal, newly formulated by reference to article 3, fell to be dismissed. On 30 January 2018 the Court of Appeal duly dismissed his appeal, together with another appeal against removal brought by a Jordanian citizen suffering from cancer: [2018] EWCA Civ 64, [2018] 1 WLR 2933. It is against its order that today the appellant appeals; and he asks us to do what he could not ask the Court of Appeal to do, namely to depart from the decision in the N case by reference to the judgment in the Paposhvili case and to remit his application for rehearing by reference to article 3.
Background
5. The appellant was born in Zimbabwe in 1987 and is now 33 years old. He lived there until 2000 when he came to the UK, where his mother was already living. He has lived here ever since. In 2004 he and his mother were granted indefinite leave to remain in the UK.
8. In 2012, while he remained in prison, the appellant, by solicitors, applied to the Secretary of State to revoke the order for deportation made in March 2007 by reference to his rights under article 8 of the Convention. In due course he forwarded to the Secretary of State a letter about his medical condition. He contended that it was relevant to his right to respect for his private and family life. The letter had been written by a nurse in the sexual health clinic of a hospital. She said that he had been diagnosed as HIV positive in 2003; that the diagnosis had not given rise to concern until 2011, when his CD4 blood count had begun to fall; that in 2012 he had undertaken antiretroviral therapy (“ART”) but initially with a drug which had given rise to intolerable side-effects, later identified as vomiting, stomach cramps, dizziness and night sweats; that the clinic had then prescribed a different drug for him, namely Eviplera, which, during the year prior to the date of the letter, had not given rise to significant side-effects and which had enabled his CD4 blood count to increase and his HIV viral load to become undetectable; that his treatment and the monitoring of his condition needed to continue; that it was doubtful whether he could access ART in Zimbabwe, without which his CD4 blood count would fall again; and that in that event he would be prey to opportunistic infections which, if untreated, would lead to his death.
9. In 2013 the Secretary of State, by letter, announced her refusal to revoke the deportation order made against the appellant. She duly determined it by reference to his claim under article 8. But, having considered the evidence referable to his medical condition, including the letter from the nurse and a country information report that ART was in principle available in Zimbabwe, she observed in passing:
“It is not considered for the reasons given above that you have shown that your case meets the high threshold for article 3 to be engaged.”
“However, there is no cure for HIV at present. It is vital for individuals on antiretroviral therapy to be maintained on lifelong HIV treatment. Should this gentleman stop his treatment or be denied access to his treatment, his HIV viral load will rise, his CD4 count will decrease and he will be at risk of developing opportunistic infections, opportunistic cancers and premature death. It is vital for individuals living with HIV to maintain regular specialist follow up, and access to effective antiretroviral therapy.”
Counsel pointed out to Judge Cameron that, in the country information report referable to Zimbabwe, the list of ART medications available there did not include Eviplera.
12. In the course of his Determination Judge Cameron wrote, at paras 101-102:
“[Counsel for the appellant] specifically indicated that article 3 was not being raised. However for the avoidance of doubt notwithstanding that the appellant is suffering from HIV and also depression, I am not satisfied that he is currently at a critical stage of the illness nor that treatment could not be available in Zimbabwe on his return albeit that it does not appear the exact medication he is currently taking is available … There is nothing on the papers before me which would indicate that the appellant’s current medical or mental health condition would be sufficient to reach the high threshold necessary to engage [article] 3.”
Jurisprudence
14. The first is the decision of the ECtHR in D v United Kingdom (1997) 24 EHRR 423. The applicant was a citizen of St Kitts. He was convicted of attempting to smuggle cocaine into the UK. Following his release from prison, the Secretary of State sought to deport him. But he was suffering from AIDS. It was in an advanced stage. His CD4 cell count, which should have been more than 500, was below 10 so he was vulnerable to a wide range of infections. In June 1996 his life expectancy was assessed as no more than a year. By the time of the hearing in Strasbourg in February 1997, he was in hospital and his life appeared to be drawing to a close. There was no drug treatment for AIDS available on St Kitts. The ECtHR held that his deportation would violate article 3. The court referred in para 51 to the advanced state of his terminal illness; in para 52 to the dramatic consequences which would attend the abrupt withdrawal of the regime of medication and care for him in the UK and his removal to an island where apparently no care was available for him; and in para 54 to the exceptional circumstances and the compelling humanitarian considerations in his case. In summary the applicant in the D case was about to die; and the essence of the decision was not the absence of treatment on St Kitts but the inhumanity of, in effect, pulling a man off his deathbed.
“As Lord Hope’s analysis shows, the later cases have made it clear that it is the patient’s present medical condition which is the crucial factor. The difficulty is in understanding where conditions in the receiving country fit into the analysis.”
In the event, however, Lady Hale expressed her conclusion in terms which did make limited allowance, perhaps only a token allowance, for conditions in the receiving state. It was as follows:
“69. In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.”
“It is perhaps not, however, self-evidently more inhuman to deport someone who is facing imminent death than someone whose life expectancy would thereby be reduced from decades to a year or so.”
And see, to similar effect, the speech of Lord Nicholls of Birkenhead at para 13. But it was Lord Brown himself who drew a significant distinction between the D case and the case of N then before the committee. He pointed out, in paras 88 and 93, that the appellant in the N case contended for an interpretation of article 3 which would cast upon the UK a positive obligation, namely to continue to treat her indefinitely; whereas, in the light of his imminent death, the applicant in the D case had secured an interpretation which had cast upon the UK only a negative obligation, namely not to deport him. Lord Brown also adverted in para 89 to the far-reaching consequences for contracting states if they were unable to remove foreign citizens with no other right to remain there just because treatment for their life-threatening conditions in their country of origin would be far less effective than that currently administered.
18. The third is the decision of the Grand Chamber of the ECtHR in N v United Kingdom (2008) 47 EHRR 39. The appellant in the N case in the House of Lords had become the applicant in the N case in the ECtHR. Again she relied on article 3. But, by a majority, her application was rejected. The Grand Chamber observed in para 34 that, since the judgment in the D case 11 years previously, the court had never held that removal of an alien would violate the article on grounds of ill-health; in para 42 that in the D case the applicant had appeared to be close to death and that a reduction in life expectancy in the event of removal had never in itself been held to amount to a violation of article 3; in para 43 that, although there might be “other very exceptional cases in which the humanitarian considerations are equally compelling”, the high threshold for violation set in the D case should be maintained; and in paras 44 and 45, much as Lord Brown had suggested, that an obligation to provide free and unlimited treatment for a serious condition, if of a standard unmet in the applicant’s country of origin, would place too great a burden on contracting states. In para O-I8 of the dissenting Opinion the relevance of this last consideration to a claim under article 3 was challenged in trenchant terms.
19. The fourth is the decision of the ECtHR in Yoh-Ekale Mwanje v Belgium (2013) 56 EHRR 35. The applicant was a citizen of Cameroon. Belgium sought to return her there. But she was HIV-positive. The administration to her in Belgium of ART had stabilised her condition. The seven members of the court held that her return to Cameroon would not violate her rights under article 3. It observed in para 80 that the case was indistinguishable from the decision of the Grand Chamber in the N case; in para 81 that it was improbable that the applicant would obtain the necessary medication in Cameroon and that, without it, her survival in the short or medium term (later described as for more than a year) was in doubt; but in para 83 that the chief consideration was the applicant’s condition prior to removal, which was stable. Nevertheless six of the seven judges added a concurring opinion which, at para OI-6, concluded as follows:
“We believe however that such an extreme threshold of seriousness - to be nearing death - is hardly consistent with the letter and spirit of article 3, an absolute right which is among the most fundamental rights of the Convention and which concerns an individual’s integrity and dignity. In this regard, the difference between a person on his or her deathbed and a person who everyone acknowledges will die very shortly would appear to us to be minimal in terms of humanity. We hope that the Court may one day review its case law in this respect.”
“183. The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) 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. The Court points out that these situations correspond to a high threshold for the application of article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
This important exposition will require study in paras 27 to 31 below; but, again, it is hard to think that it is encompassed by the reference in the N case to “other very exceptional cases” because any application of the criterion in the quoted passage would be likely to have led to a contrary conclusion in the N case itself. It is also convenient at this stage to address the words “although not at imminent risk of dying” in the first long sentence of the paragraph. As was agreed by counsel, the words refer to the imminent risk of death in the returning state. So the Grand Chamber was thereby explaining that, in cases of resistance to return by reference to ill-health, article 3 might extend to a situation other than that exemplified by the D case, cited in para 14 above, in which there was an imminent risk of death in the returning state.
(a) in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to article 3;
(b) in para 187 that, where such evidence was adduced in support of an application under article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state;
(c) in para 189 that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to article 3;
(d) in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and
(e) in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant.
These procedural obligations on returning states, at first sight very onerous, will require study in paras 32 and 33 below.
25. The sixth is the decision of the Fourth Section of the ECtHR in Savran v Denmark [2019] ECHR 651, given as recently as 1 October 2019. The applicant was a Turkish citizen who, in 1991 when aged six, had come with his family to live in Denmark and who had remained living there. In 2001 he was convicted of robbery and in 2008 he was convicted of acting with others in an assault which had led to the victim’s death. It seems that, by the time of his conviction (in fact reconviction) for the latter offence, he had been diagnosed with paranoid schizophrenia and so he was sentenced to committal to psychiatric care, to be followed by expulsion to Turkey. In 2014 a City Court in Denmark varied the sentence so as to permit the applicant to receive his psychiatric treatment as an outpatient. But the main issue before that court was whether the order for his expulsion should be revoked. In this regard the applicant relied not on his Convention rights but on a domestic statute which required its revocation if his state of health made expulsion of him conclusively inappropriate. The City Court revoked the order but the High Court reversed its decision, whereupon he applied to the ECtHR by reference to his rights under article 8 and in particular under article 3.
Analysis
“This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (ie to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the 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 (ie 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.”
32. The Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements. Yet observations on them may even now be made with reasonable confidence. The basic principle is that, if you allege a breach of your rights, it is for you to establish it. But “Convention proceedings do not in all cases lend themselves to a rigorous application of [that] principle …”: DH v Czech Republic (2008) 47 EHRR 3, para 179. 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. The threshold, set out in para 23(a) above, is for the applicant to adduce evidence “capable of demonstrating that there are substantial grounds for believing” that article 3 would be violated. It may make formidable intellectual demands on decision-makers who conclude that the evidence does not establish “substantial grounds” to have to proceed to consider whether nevertheless it is “capable of demonstrating” them. But, irrespective of the perhaps unnecessary complexity of the test, let no one imagine that it represents an undemanding threshold for an applicant to cross. For the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department [2019] UKUT 397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal.
34. This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case. Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it. Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate. But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening) [2019] UKSC 2, [2020] AC 279. In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case. For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart.
Disposal