Article 3 ECHR and AM Zimbabwe – how does health affect a human rights claim?

Practitioners working in immigration law will, by now, be well aware of the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17. In that case, the Supreme Court adopted the new interpretation of Article 3 cases set out in the European Court of Human Rights decision in Paposhvili v Belgium (application no. 41738/10).

AM (Zimbabwe) and Popshoshvili materially lowered the threshold for challenging a person’s removal from a country on the basis of their serious ill-health under Article 3 of the European Convention on Human Rights.

The old threshold for Article 3 used to be found in the case of N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296. In that case, Baroness Hale stated: “In my view, therefore, the test, in this sort of case, is whether 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”.

In contrast, the “new” test set out in AM Zimbabwe is that removal must result in a “serious, rapid and irreversible decline” in the person’s state of health resulting in intense suffering or a significant reduction in life expectancy. It is no longer necessary for a person to die immediately upon, or shortly after, return to their home country. The significant change in the law has resulted in successful appeals in many of our clients’ cases here at Imperium Chambers.

The reason we are writing about this now is that although AM’s case was successful in the Supreme Court in law, his case was remitted back to the Upper Tribunal to consider his individual circumstances in light of the newly-established law. That decision has just been promulgated in AM (Art 3; health cases) Zimbabwe [2022] UKUT 131 (IAC). Although the case does not change the state of the law, it is a useful judgment in terms of showing how the courts will approach these kinds of cases.

AM himself is a Zimbabwean national who obtained ILR in 2004. He was given a 9-year prison sentence, following which he was given a deportation order. AM is HIV-positive, and is currently managing his condition through anti-retroviral drugs, monitoring, and testing.

The Upper Tribunal summarised the legal principles as they are following the Supreme Court as follows:

  • The person must show that they have discharged the burden of showing that they are a “seriously ill person”. A “minimum level of severity” must be shown to show that the person meets the threshold of Article 3.
  • They must then adduce evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that they would face “a real risk” that they will face, “on account of the absence of appropriate treatment” in their home country or “the lack of access to such treatment”, “a serious, rapid and irreversible decline in [their] state of health resulting in intense suffering, or a significant reduction in life expectancy”.
  • When the person has raised a prima facie case, the country seeking to remove the person can counter this by obtaining evidence to dispel the serious doubts about any breach of Article 3.
  • If these serious doubts persist after looking at the returning country’s evidence, it may be necessary to obtain individual assurances from the receiving state (Zimbabwe in this case) that appropriate treatment will be available.

In AM’s case, reports were obtained from two experts who disagreed as to the availability and affordability of the HIV medication required in Zimbabwe. The Upper Tribunal was heavily critical of the experts’ opinions, neither of which has provided sources for their conclusions. The Upper Tribunal were also concerned amount AM’s credibility. Although this in itself did not change the state of his health, it did have an impact on the Tribunal’s assessment of the evidence he had provided.

AM’s case was ultimately dismissed, the UT holding that there was medication available for him in Zimbabwe costing around $2 a month.

Again, whilst this case did not change the state of the law, it was interesting to see where AM’s case itself ended up, and how the courts will be applying the principles set out in the Supreme Court case.

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