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Article 3 (Health Grounds) and Deportation - The case of AM (Zimbabwe) 2020

The Supreme Court of the United Kingdom on 29th April 2020 delivered a landmark decision in the case AM (Zimbabwe) (Appellant) v Secretary of State for the Home Department (Respondent) following precedence from Paposhvili v. Belgium a Grand Chamber of ECtHR in Strasbourg. The case is important for foreign citizens residing in the UK who committed serious crimes as it determines how Human Rights considerations, particularly Article 3 (Freedom from torture and inhuman or degrading treatment) apply in deportation cases.

Background

AM (Appellant) a citizen of Zimbabwe has been residing in UK for at least 20 years and had established family life with his partner and child both in the UK. He however committed series of offences, highest of which he was jailed for 7 years. This made him a foreign criminal under Section 32(5) of the UK Borders Act 2007 and thus he was subject to automatic deportation. He was therefore issued with a deportation order and detained in 2012 but he appealed before being deported.

At a hearing before the First-tier Tribunal, counsel then appearing for AM relied on his medical condition as an HIV+ and the limits on treatment available to him, in addition to the impact of his deportation on his wife and child, to advance a claim based on Article 8 of the European Convention on Human Rights. The First-tier Tribunal rejected the claims as not strong enough against the public policy test. AM appealed, and the appeal was dismissed by the Upper Tribunal. He then appealed to the courts of appeal.

All this while, counsel for AM had not sought to rely on his Article 3 rights because the position of the law at the time in (N v SSHD [2005] UKHL 31), was unfavourably strict. By that precedence, a court would only grant article 3 on medical grounds if:

‘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’. Lady Hale

It meant that, AM would likely not be successful unless there is the likelihood of immediate and eminent death through deportation. Prior to AM’s appeal hearing, the European courts of Human Rights had delivered a judgement in Paposhvili v Belgium [2017] Imm AR 867 which changed the test held by N v SSHD [2005] UKHL 31, for Article 3 Medical grounds decision. In Paposhvili v. Belgium, the Court determines that Article 3 is triggered in cases where:

the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual 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”.

AM’s therefore applied to switch the basis of his appeal from article 8 to article 3.  He argued that he (HIV+) had been receiving treatment from the NHS with a drug which restores his CD4 blood count to a safer level and has since stabilised his condition. He claimed his condition could worsen if deported, as Zimbabwe has no active treatment for HIV, and therefore deportation will be an inhumane punishment for him. Counsel drew the court’s attention to the new rule in Paposhvili. The Appeals court welcomed the decision in Paposhvili at Strasbourg but also indicated that, it was bound by the precedence of the UK Supreme and therefore dismissed the appeal.

AM’s appeal to the Supreme Court was however successful. The Supreme unanimously followed the decision in Paposhvili and departed from N v SSHD [2005]. The Supreme Court has therefore extended the ambit of Article 3 to cover all cases within the category set out in Paposhvili above.

Case Impact

In a situation where a migrant facing deportation has serious health complication, particularly in a nature where the lack of access to its treatment in the receiving country exposes them to a permanent decline in their health or significant reduction in the life expectancy of the individual, It will be a breach of their convention rights to deport such individuals.

The Supreme courts further directs that, the Court or tribunal in handling article 3 claims will now have to put appropriate procedures in place to allow the individual to adduce evidence of the potential risk upon return to the country of origin and for the State to examine the foreseeable consequences of return with regard to both the general situation and the individual’s circumstances. The evidence must be capable of demonstrating “substantial” grounds for a “very exceptional case” because of a real risk of subjection to inhuman treatment.

It is important to have an understanding of the legality of any deportation order, whether it is possible to appeal a deportation decision and what you would need to address in any representation to the courts.

Disclaimer: No material or information provided on this website should be construed as legal advice. Readers should always seek appropriate professional advice to resolve their Legal Matters.
About the Author
Clement Mensah

  Clement Mensah

Clement is an Associate handling Immigration, Wills and Estate Planning matters with a strong legal academic background having completed BSc in Land Economy and pursuing Graduate Diploma in Law (GDL) from Nottingham Law School.

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