Supreme Court confirms broader scope for challenging deportation under Article 3 of the European Convention on Human Rights

The Supreme Court this week handed down judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, clarifying the scope for resisting deportation from the UK on grounds of ill-health. Herbert Smith Freehills acted for the intervener, the AIRE Centre, who successfully supported the appellant . In light of the recent caselaw of the European Court of Human Rights (“ECtHR”), the Supreme Court considered the proper application of the prohibition of inhuman treatment under article 3 of the European Convention on Human Rights (“the Convention”) in the context of resisting deportation.

Background

The appellant, a Zimbabwean citizen, challenged the refusal to revoke the order for his deportation from the UK to Zimbabwe. The Secretary of State had ordered his deportation as a result of crimes he had committed whilst lawfully resident in the UK. The appellant is HIV positive and receives medical treatment in this country which prevents his relapse into AIDS. He argued that it was doubtful whether his current medication would be available in Zimbabwe, without which he was prone to infection and faced a reduction in life expectancy.

However, in the First-Tier and Upper Tribunals the appellant had resisted deportation on the basis only of his right to respect for private and family life under article 8 of the Convention. Indeed the appellant conceded that his appeal could not succeed on grounds of his ill-health under article 3, given the narrow interpretation established by the House of Lords in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] UKHL 31, [2005] 2 AC 296. In that case article 3 was held to prohibit the deportation only of those of facing imminent death, whose return would deprive them of access to the care needed to die in dignity. The appellant’s risk of a significant reduction in life expectancy fell short of this standard.

Before the appellant’s case reached the Court of Appeal, the Grand Chamber of the ECtHR gave judgment in Paposhvili v Belgium [2017] Imm AR 867 in which it stated that it was clarifying the approach, and that article 3 may cover “situations involving the removal of a seriously ill person in which 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 or to a significant reduction in life expectancy”.

Considering this decision to provide an expanded interpretation of article 3 in circumstances similar to his own, the appellant abandoned his reliance on article 8 before the Court of Appeal. He sought instead to reformulate his claim by reference to article 3 and requested that the case be reheard accordingly at tribunal level.

The Court of Appeal dismissed the appeal, holding that Paposhvili had not expanded the application of article 3 as broadly as the appellant claimed. Even if it had, both parties acknowledged that the Court of Appeal would be obliged to dismiss the appellant’s case in any event. Bound by the domestic authority of N, the court was powerless to adopt a wider interpretation of article 3.

The appellant therefore asked the Supreme Court to do what the courts below could not: depart from the narrow interpretation of article 3 and remit the case for rehearing.

Judgment

The Supreme Court accepted the appellant’s and intervener’s submissions on the interpretation recently adopted by the Grand Chamber. In its view Paposhvili had not merely clarified the application of article 3, it had extended it (and Lord Wilson commented on the confusion that could be caused by the ECtHR describing itself as clarifying when it is in fact going further). Previous cases, including N, had held that the seriously ill would be spared deportation only if the absence of appropriate treatment in the receiving state would result in imminent death. Following Paposhvili, article 3 could now also prohibit the deportation of those who faced a real risk of a “significant reduction in life expectancy” or a “serious, rapid and irreversible decline” in health resulting in intense suffering. Significant in this context must mean “substantial” to attain the level of severity required by article 3, but it was acknowledged that this would have to be applied in light of the particular facts. To illustrate this Lord Wilson gave the example of a reduction in life expectancy to two years for a 74 year old compared with a reduction in life expectancy to two years for a 24 year old.

With the effect of the Grand Chamber’s decision understood in this way, the Supreme Court made clear that it would depart from N and follow Paposhvili. It noted that it would only be appropriate to refuse to follow a decision of the Grand Chamber in “highly unusual circumstances”.

Given the now broadened scope of article 3, the Supreme Court remitted the appellant’s case to the Upper Tribunal for rehearing.

Comment

The Supreme Court’s decision brings domestic law into step with the ECtHR in relation to how deportations can be challenged under article 3 of the Convention. No longer is the prospect of imminent death required. Both substantial reductions in life expectancy and intense suffering due to declining health may now be invoked to resist return.

This case also draws attention to the broader relationship between the domestic and Strasbourg courts. As the Supreme Court recognised, the Convention is a “living instrument”. Its growth occurs through the interpretations given to it by the ECtHR. Where domestic interpretations lag behind, catching up can require the Supreme Court to depart from its own previous decisions.