Article 3 of the ECHR and its role in medical cases

In the recent judgement of MM (Malawi) & MK (Sri Lanka) v SSHD {2018} EWCA CID to 482, the Court of Appeal refused to grant permission to appeal to the Supreme Court for consideration of whether the test under article 3 for removal of foreign nationals in medical cases, as set out in Paposhvili v Belgium [2017] I MM AR 867, was correctly interpreted by the Court of Appeal in AM (Zimbabwe) V SSHD [2018] EW CA CID 64 because it thought that its own interpretation of Paposhvili was correct.

Background

The issue in MM (Malawi) 7 MK (Sri Lanka) v SS HD was whether the removal of a foreign national from the UK would breach their rights under article 3 not to be subject to inhuman or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.

Looking at the various issues in this regard, in 1997, the European Court of human rights determined in D v UK (application no 30240/96), that as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, removal would constitute a breach of article 3. This was noted to be a very exceptional case. Here the applicant was receiving end-of-life treatment.

The next leading domestic authority was N v SS HD [2005] UK HL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; i.e. she was not receiving end-of-life treatment; however, if returned to Uganda, where such treatment was not available, she would die within one or two years. Lord Hope set out the test for very exceptional cases in that regard as follows: – for the circumstances to be— very exceptional, it would need to be shown that the applicant’s medical condition has reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lack the medical and social services which he would need to prevent acute suffering while he is dying. A similar situation to D above but analysing the medical and social services available in the receiving state not only to prevent him suffering while dying, but to prevent acute suffering while dying.

Therefore, although N would die in Uganda, she wouldn’t die much faster than she was expected to, because she would not be subject to acute suffering whilst dying. Therefore, the fact that and would die in due course if removed was no breach of article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened. The issue was declared to be not whether her death would follow removal (because it would), but whether there is care available to enable her to meet that fate with dignity, that is to say she should not be subject to acute suffering while dying. In this case it was considered that such care was available, so she could die with dignity in Uganda. The grand chamber of the European Court of human rights approved this reasoning in N v UK application number 26565/05.

The European Court of human rights we consider this issue in paposhvili v Belgium( application number 41738/10)  considered to water down the strict rigours of the application of N by holding that  the other very exceptional cases within the meaning of the judgement in N which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person where 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 and  to a significant reduction in life expectancy.

It is accepted by the UK courts that Paposhvili has relaxed the test but the question as to what extent. This was decided in AM ( Zimbabwe) v SS HD 2018 as aforesaid, when the Court of Appeal considered the new test in  paposhvili and interpreted the change as follows:-  the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state, even with a treatment available there, to being defined by the imminence ,  likely rapid experience, of intense suffering or death in the receiving state, which may only occur because of the no availability in that state of the treatment which had previously been available in the removing state.

The applicant must face a real risk of being exposed to a serious, rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy. The alternative interpretation is this that the applicant must face a real risk of being exposed to serious rapid and irreversible decline in his state of health resulting in intense suffering or to a significant reduction in life expectancy.

The difference being that in the latter interpretation the significant reduction in life expectancy does not need to have been caused by a serious rapid and irreversible decline in the applicant’s health.

The issue in AM Zimbabwe concerned the applicable test for when removal of seriously ill people to their country of origin would raise an issue under article 3 of the European Convention on human rights. Lord Justice sales giving the judgement of the Court of Appeal decided that removal would only violate article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK.

The boundary of article 3 protection has been shifted it seems from being defined by imminence of death in the removing state even with the treatment available there, to being defined by the imminence i.e. 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.

In AM Zimbabwe on the facts, it is also difficult to argue that the Court of Appeal was wrong to refuse permission to appeal to the Supreme Court. In both MM and MK, the evidence pointed to the treatment being available in Malawi and in MV there was insufficient evidence to establish a significant reduction in life expectancy.

The correct approach therefore is that the initial evidential burden is on the appellant to adduce evidence capable of demonstrating that there are substantial grounds for believing that if the measure complained of were to be implemented they would be exposed to a real risk of being subjected to treatment contrary to article 3.

Where such evidence is adduced, the burden shifts to the authorities of the returning state to dispel any doubts raised by it subjecting the risk alleged to close scrutiny. The respondent must consider the foreseeable consequences of removal for the individual concerned in the receiving state in the light of the general situation and the individual’s personal circumstances.

The Secretary of State is under an obligation to verify on a case-by-case basis whether the care generally available in the receiving state is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to article 3.

The Secretary of State must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving state. This involves consideration of such other matters such as the cost of medication and treatment, the existence of social and family network, and the distance to travel to access the required care. An assessment of risk must take into account general sources such as report of the world health organisation and the medical certificates considering the person in question.

Whether on examination of the relevant information serious doubts persist regarding the impact of removal on the person concerned, the returning state must obtain individual and sufficient assurance from the receiving state, as a precondition for removal, that appropriate treatment will be available and accessible to the person concerned so that they do not find themselves in a situation contrary to article 3.