Serious health cases - harsh immigration caselaw

10 March 2018

You might get the impression from certain sections of the media that the European Court of Human Rights (ECtHR) is generally soft and nice and always on the side of the applicant. People in countries such as the UK which are members of the Council of Europe can, in appropriate circumstances, apply to the ECtHR - which sits in Strasbourg, France - for judgement if they feel that their human rights have been or will be violated, in the hope that the court will see things their way.

But such an impression would have been severely disrupted by a decision of the ECtHR in a case called "N v United Kingdom" in 2008. This case concerned a Ugandan woman who had sought asylum in the UK. Her asylum claim was refused, and she subsequently made a claim under Article 3 of the European Convention on Human Rights. This is a wide-ranging Article that protects people from "inhuman or degrading treatment". She had a serious AIDS/HIV condition and she claimed that adequate medical would not be available for her in Uganda if she were forced to return there and she would consequently not survive long.

The British courts were unsympathetic to her situation and the case eventually reached the ECtHR. To the surprise of many the ECtHR maintained the position of the British courts. The Court said - as indeed was already well-established - that Article 3 cases had to reach a certain level of severity in order for an applicant to succeed. But the principles of the judgement went somewhat further than this: it was only the very most serious health cases ("deathbed cases", as they have sometimes been called) that could succeed under Article 3. N’s case, although serious, was not sufficiently serious.

But another case before the ECtHR called "Paposhvili v Belgium" a few years later in 2016 seemed to soften the position. The Article 3 remedy was now no longer confined to deathbed cases. It was apparently extended to people who faced a real risk of experiencing a rapid decline in their condition leading to death or intense suffering if they were returned to their home country and treatment was not available.

But the problem with judgements of the ECtHR is that they are not thoroughly binding on the English courts: they are likely to be persuasive, but of course there is an important distinction between persuasive and binding. Indeed, the ECtHR has a rather nebulous status in the UK: whilst being the "top court" in human rights it is not precisely a supreme court. The British courts and tribunals must refer primarily to the caselaw of the British courts for authority. So, for example, the First-Tier Immigration Tribunal must have primary regard to the relevant decisions of the British courts, not the ECtHR.

Thus the judgement in a new case before the Court of Appeal of England and Wales called "AM (Zimbabwe)", which also dealt with serious health cases, was eagerly awaited. Would the court accept the principles stated by the ECtHR in the case of Paposhvili or not?

In the event, the appellants in AM (Zimbabwe) were unsuccessful. As had happened previously, the court decided that their respective medical conditions were not sufficiently serious to successfully engage Article 3.

But nonetheless by and large the Court of Appeal did accept the new or amended principles that the ECtHR had stated in the Paposhvili case. And, interestingly, although the court’s reasoning was slightly complicated, it seemed to accept as a correct principle that it should follow the ECtHR’s reasoning - or "guidance", as the court described it - or at any rate seek to interpret it correctly. As the court put it: "it is relevant and appropriate for this court to rule upon the meaning and effect of the guidance in Paposhvili".

The Court of Appeal opined that the ECtHR had only changed the legal learning "to a very modest extent" (but an extent which surely could have a huge impact on a migrant’s life). And the court also said that "a violation of Article 3 does not occur just because the care in the receiving state does not meet the same high standards as the care in the removing state".

And this, we suspect, is something that lies at the heart of the matter. The courts are well aware that, as soon as a legal principle is established that a migrant can rely on an argument that the medical care available in their home country is inferior to that available in the UK (which, we suspect, would in many cases be true) then this would "open the floodgates" to thousands of migrants.

Anyway, be this as it may, to sum up: caselaw about serious health conditions remains harsh, but has now been slightly ameliorated.

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