Implications for expulsions following the Supreme Court ruling of AM (Zimbabwe)

Tuesday 19 May 2020

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Cases where applicants seek to resist removal from the UK because of adverse health consequences have given rise to both great passions and difficult points of principle. The decision of the Supreme Court in AM (Zimbabwe) [2020] UKSC 17 gave the opportunity for the UK’s approach to catch up with that taken by the ECtHR in recent years. In this post we look at the implications of the judgment both generally and in relation to two specific scenarios, namely destitution and “fitness to fly”. 

The Background

Article 3 ECHR provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." The Article was originally seen as only applying to the consequences of actions in contracting Member States. However Chahal v UK [1996] ECHR 54 recognised that Article 3 should also apply in expulsion cases where treatment abroad was due to intentionally inflicted acts of the public authorities there or from non-State bodies from whose actions the authorities could not afford protection.  Therefore, the Article’s application to migrants resisting removal was itself seen as an extension. Domestic judges for many years treated it as a wholly exceptional scenario: “an extension of an extension”, as one put it.[1]

Nevertheless, in D v UK (1997) 24 EHRR 423 and N v UK (2008) 47 EHRR 39 the Strasbourg Court recognised the possibility of an Article 3 violation where expulsion led to an individual suffering the consequences of naturally occurring physical or mental illnesses. This was even though the problems arose from factors beyond the responsibility of the public authorities of the expelling state. This was an extreme exception to the general position: one required by humanitarian considerations. But the threshold to be met to demonstrate an Article 3 breach was extremely high. As interpreted by the House of Lords in N (until now the governing domestic precedent) a breach would essentially only be found where:

“the applicant’s illness has reached such a critical stage (i.e. 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.”

The ECtHR in N recognised that there might be other scenarios beyond being critically ill, close to death and without any medical care or family support available. A minority of the ECtHR in Mwanje (2013) 56 EHRR 35 expressed the “hope” that “the Court may one day review its case law” on the point because the approach so far taken appeared “minimal in terms of humanity”. However not until Paposhvili v Belgium [2017] Imm AR 867 in December 2016, more than a decade after N, did the practical opportunity arise to take things further. Paposhvili identifies another scenario beyond deathbed cases, namely where the applicant:

“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.”

However, the decision of the House of Lords in N remained binding at a domestic level, as under the HRA 1998 regime Strasbourg decisions are merely persuasive authority. Ever since Paposhvili the UK courts have sought an opportunity to revisit the issue, though there were a few false starts. Eventually the opportunity arose once AM Zimbabwe made its way to the Supreme Court. 

AM Zimbabwe and the Article 3 Threshold

The decision unsurprisingly holds that Paposhvili should be followed by the UK courts, a matter not seriously disputed by the Secretary of State. So henceforth decision-makers in health cases must:

  • (1) Bear in mind both the general availability of health treatment and the individual’s access to it;  and
  • (2) Consider exposure to both:
    • a serious, rapid and irreversible health decline resulting in:
      • intense suffering; or
      • a significant reduction in life expectancy

In so concluding the Supreme Court departs from the interpretation given to Paposhvili by the Court of Appeal, finding that it was too much of a leap in reasoning to equate the “significant reduction in life expectancy” referenced in Paposhvili with the imminence of death. There was no longer any requirement of death within a short time. The meaning of “significant” in this context had to take account of the circumstances of the individual, and effectively meant “substantial”. By way of example, a reduction in life expectancy to two years would be more significant in this sense for a younger person than a much older one.

AM (Zimbabwe) will require a reconsideration of suicide risk cases. Whilst it has long been recognised that an Article 3 suicide claim can in principle succeed, decisions such as RA (Sri Lanka) [2008] EWCA Civ 1210 apply N's high threshold (which arose in the context of an HIV positive applicant) to mental health claims. With the bar reset for the former, it will necessarily change for the latter too. Sadly it is not difficult to envisage cases where a sharp increase in suicidal ideation foreseeably entails both intense suffering or a significant life expectancy reduction.

Further consideration in the ECtHR

In October 2019 the Fourth Section of the ECtHR handed down its decision in Savran v Denmark [2019] ECHR 651. The case involved the deportation of a Turkish citizen who suffered from paranoid schizophrenia. By a bare majority the Fourth Section upheld the applicant’s complaint that his expulsion would breach his Article 3 rights because the Danish courts had not considered whether some elements of his treatment would be accessible to the applicant if returned to Turkey. Three of the seven judges wrote a dissenting Opinion in which they accused the majority of having “seized the first available opportunity to further broaden the scope of Article 3 in this sensitive area, thus in practice pushing wide open the door that the Grand Chamber deliberately and for sound legal and policy reasons decided only to open slightly.

In January 2020 the Grand Chamber accepted a request by Denmark for Savran to be referred to it and the UK has applied for leave to intervene in the proceedings.

Therefore, any decision by the Grand Chamber may cause further reassessment of these principles at a domestic level (this is anticipated in the Supreme Court’s decision at §32). However, UK courts will be bound to follow the Supreme Court’s decision unless and until they decide to review AM (Zimbabwe) in light of Savran.

The Destitution Threshold

So far we have looked at AM Zimbabwe in its immediate context of health. But the high test in N has further resonance, for it also applies in cases involving expulsion to foreseeable destitution.

Where there is a threat of destitution in the UK then the normal Article 3 threshold applies: see eg Limbuela [2005] UKHL 66 holding that whether a lack of accommodation and funds gives rise to an Article 3 breach depends on whether the ensuing restrictions and deprivations are so severe as to amount to inhuman and degrading treatment. But the UK’s liability for destitution abroad is treated as involving a less direct responsibility . In MSS v Belgium and Greece [2011] ECHR 108 and Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 the Strasbourg Court has held that the N test applies if “dire humanitarian conditions … were solely or even predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon.”  Of course there are exceptions, two of which are:

  • Where destitution is assessed under a specific legal regime such as internal relocation in an asylum claim (where the question is simply whether conditions are unduly harsh/unreasonable)
  • Where destitution does not arise from natural events: e.g. where an EU Member State has breached legal duties to protect the vulnerable (see MSS v Belgium and Greece, probably including the relatively unexplored issue of mental health deterioration attributable to detention) or where the destitution is the legacy of armed conflict (e.g. Sufi & Elmi).

The abandonment of the N threshold for health necessarily impacts on the analogous test of when destitution equates to inhuman and degrading treatment. The precise analogy between a “serious, rapid and irreversible decline … resulting in intense suffering or to a significant reduction in life expectancy” in health and destitution cases will need to be explored. Life on the streets that involves intense suffering or a foreseeable threat to life expectancy now potentially falls within the ambit of Article 3.

AM Zimbabwe and the State’s Duty of Enquiry

Paposhvili raised an issue going beyond the threshold at which health cases may succeed. The ECtHR looked at the procedural obligation of the State to investigate a person’s health condition for themselves. However, the scope of that duty seemed rather broadly expressed: the suggested need for the returning state to “dispel any doubts” raised by Article 3 claims was thought rather vague by some judges. 

The Supreme Court concludes that this requires the UK authorities, where an applicant provides sufficiently cogent evidence to amount to a prima facie Article 3 violation, to collect evidence about the availability and accessibility (e.g. cost, support networks, location etc) of suitable treatment in the receiving state, in order to dispel any serious doubts about that evidence. Absent such rebuttal, removal must be seen as leading to an Article 3 breach unless the SSHD obtains an individual assurance that the applicant will be given the requisite treatment. One can imagine this duty having particular relevance in a suicide risk case, where one relevant question is whether “the receiving state has effective mechanisms to reduce the risk of suicide” (see e.g. J [2005] EWCA Civ 629).

Fitness to Fly

The new threshold accepted in AM Zimbabwe will clearly impact on immigration appeals based on health. The procedural implications are also significant and are likely to be of particular importance outside the statutory appeals process. This may be especially important where a detained migrant faces expulsion and their health is in issue. Removal can proceed only where the UK’s obligations under the ECHR are not jeopardised; and that risk may arise if there is evidence of extreme vulnerability available to decision makers at the removal stage.

Of course, cases where the lawfulness of detention are in issue are already recognised as requiring the SSHD to comply with her public law (Tameside) duty to take reasonable steps to acquaint herself with the relevant information as to the applicant's circumstances: see for example, Lord Wilson in R (O, by her litigation friend the Official Solicitor) [2016] UKSC 19 accepting that sometimes the authorities must enquire into whether a detainee’s mental health could be satisfactorily managed in detention.

But the investigative duty can now be seen as going further. Presently health issues arising shortly pre-removal tend to be labelled under the rubric “fitness to fly” and are seen by the SSHD as turning on the narrow question of whether the potential passenger is certified as fit to travel having regard to the Aviation Guidelines. However, Paposhvili suggests an ongoing duty on the state to assess whether a removal would infringe fundamental rights whether or not the material is put as a formal human rights claim. Material that might previously have been thought answerable simply by the private opinion of an immigration removal centre’s duty doctor can now be seen to require fuller treatment. Providing a reasonably cogent evidence-backed health case is put to the SSHD, the burden will shift to her to dispel any doubts so raised: both as to the availability and the accessibility of relevant treatment. Just pointing to the general conditions abroad will not be enough: there must be fact-specific consideration of the applicant’s individual circumstances.

This might well require taking all reasonable steps to ensure that access is obtained to the applicant’s immigration documents and medical records from the medical department of an immigration removal centre. However, the recent Chief Inspector’s recent Annual Inspection report on Adults at Risk found various weaknesses in the detention regime, particularly when it came to identifying vulnerability and interpreting medical evidence. The mechanisms in place to spot and address vulnerability often fail in practice: rule 34 examinations and rule 35 reports, detention reviews for adults at risk and the use of community alternatives to detention have all been criticised.

In AM (Zimbabwe) at §32 Lord Wilson noted that the “basic principle”, namely that a person alleging a breach of their rights must establish such a breach, has been modified in these claims. A significantly increased evidential and even investigative burden now rests on the Home Office when seeking to remove individuals who raise issues of physical or mental health.   

Even if the Paposhvili threshold is not met there may still be Article 8 issues which attract procedural protection, such as a significant diminution in cognitive function which might engage private life issues, depending on the facts of the case. As the ECtHR in Ciubotaru v Moldova [2010] ECHR 638 explained that the effective protection requires procedures by which an applicant can fairly assert proof and evidence of their Article 8 rights.

There are significant opportunities on the horizon to extend protection for vulnerable migrants by invoking the Home Secretary’s public law obligations alongside the newly-lowered threshold for Article 3 cases.

The Garden Court immigration team stand ready to help in these cases.

Mark and Miranda are grateful to David Sellwood for his inspiration regarding the destitution threshold.


[1] N v SSHD [2003] EWCA Civ 1369 at §37.

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