Human Rights: Facing Deportation When in Need of Medical Treatment

By Tomor Bahja, a leading human rights and immigration barrister regularly instructed by OTS Solicitors in judicial review proceedings, and immigration and human rights cases in the first tier tribunal, upper tribunal and High Court.

A Supreme Court decision has been welcomed by leading human rights lawyers as offering hope to those facing deportation from the UK. In this blog barrister, Tomor Bahja, looks in depth at the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17.

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If you are facing deportation or need advice about a potential human rights claim then call the expert team of human rights lawyers at London based OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

The human rights team work with high profile Immigration and Human Rights barrister Tomor Bahja providing robust representation in all levels of tribunal and Court proceedings.

Appointments are available by video conferencing, Skype or telephone. Call OTS Solicitors on 0203 959 9123 to arrange an appointment.

Facing deportation – the case of AM

To understand the legal significance of the case of AM for those with serious health concerns and facing deportation from the UK it is important to know a bit about the background of the Zimbabwean national referred to in the Supreme Court proceedings as ‘’AM’’. AM came to the UK at the age of thirteen and together with his mother secured Indefinite Leave to Remain in the UK. He subsequently committed a number of criminal offences and received a seven year prison sentence.

Given AM’S offending history and prison sentence the Home Office secured a deportation order. The complexity of AM’S case was that he had been infected with HIV and needed very specialist drug therapy that was unavailable in Zimbabwe. AM’s lawyers argued that deportation to Zimbabwe was the equivalent of a deathsentence as without specialist drugs AM needed to prevent his HIV status becoming full blown AIDS, if deported AM would inevitably die from the disease.

AM challenged the making of the deportation order on the basis that deportation breached Article 3 of the European Convention on Human Rights.

Article 3 of the European Convention on Human Rights

AM lawyer’s Supreme Court case centred on the legal argument that failure to revoke the deportation order would amount to a breach of Article 3 of the European Convention on Human Rights. The Supreme Court unanimously allowed AM’s appeal and remitted AM’s Article 3 human rights claim to be heard by the upper tribunal with up-to-date medical evidence.

Article 3 of the European Convention on Human Rights (“the Convention”) enshrines protection of one of the great values of human society, the right not to be subjected to torture or to inhuman or degrading treatment or punishment. It is an absolute right, but the threshold of engagement, especially in medical cases, is an extremely high one.

Article 3 medical cases have proved problematic for the European Court and the UK domestic courts in respect of the test to be applied and the need to ensure protection of rights protected by Article 3.

Prior to the April 2020 Supreme Court decision in AM, the UK courts had followed a judgment of the European Court (referred to as the N case) that said the test was one of risk of imminent death to engage Article 3 in medical cases. The Grand Chamber observed that since the judgment in a case eleven years previously, the Court had never held that removal of a foreign national would violate Article 3 on grounds of ill-health.

In the case of AM the Supreme Court held that the engagement of Article 3 test of ‘‘imminent death’’ established in the N case has now been replaced with the test in a case by the name of ‘’Paposhvili’’.

The Paposhvili case established that, even if death was not imminent, if there is reason to believe that an applicant would face ‘’a real risk of a serious, rapid and irreversible decline in their health resulting in intense suffering’’ or to a significant reduction in life expectancy due to a lack of access to appropriate treatment in the receiving country, then Article 3 would be breached.

The Court in Paposhvili held that there would have been a violation of Article 3 had the applicant, who suffered from a life-threatening condition, been removed from Belgium to his country of origin, Georgia. The Belgian authorities had not properly investigated whether suitable medical treatment was available in Georgia, had not considered the applicant's medical situation in the context of removal, and had not properly assessed the risk to him.

Paposhvili was applied by the Fourth Section of the European Court of Human Rights in the case of Savran. This case relatedto the proposed deportation of the applicant who suffered from serious mental illness without assurances from his State of origin as to the availability of mental health supervision to accompany intensive outpatient therapy. The applicant (S), a Turkish national, entered Denmark in 1991, at the age of six, with his mother and siblings in order to join his father. In 2007, he was sentenced to seven years imprisonment for a serious assault resulting in the death of the victim. He was made subject to a deportation order to Turkey. During appeal process, he was examined by a doctor and was deemed to fall within the definition of unsound mind in the Danish Penal Code. He was then transferred to a secure residential institution for the severely mentally impaired. His guardian requested a review of the deportation order on the basis of his mental state. The high court reversed a positive initial decision of the City Court on the basis that S could access to the same medical treatment for free in Konya, his region of origin. S contended that his return to Turkey would be in breach of Article 3 of the Convention.

In a split decision, the Court held that if S were to be removed to Turkey without the Danish authorities having obtained such individual and sufficient assurances, there would be a violation of Article 3 of the Convention. The Court noted that if S were to be returned to Turkey, he would settle in a village 100 km away from Konya, where he could access the services of a physician at a public hospital rehabilitation clinic. Whilst such distance would not in itself be an obstacle for S to obtain actual access to the medical treatment required, the Court noted that in the present case, the possibility of S receiving follow-up supervision and intensive outpatient treatment was an additional important element. The question was whether S, if he were not be able to receive “appropriate” treatment in Turkey, would be exposed to a serious, rapid and irreversible decline in his state of health, resulting in intense suffering. The European Court observed that:

“although the threshold for the application of Article 3 of the Convention is high in cases concerning the removal of aliens suffering from serious illness, the Court shares the concern expressed by the City Court, that it is unclear whether the applicant has a real possibility of receiving relevant psychiatric treatment, including the necessary follow-up and control in connection with intensive outpatient therapy, if returned to Turkey".

"In the Court’s view, this uncertainty raises serious doubts as to the impact of removal on the applicant. When such serious doubts persist, the returning State must either dispel such doubts or obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3".

In AM (Zimbabwe) the Supreme Court referred to the case of Savran and conducted a detailed analysis of the Paposhvili case. The Court concluded that in light of Paposhvili ruling it was time to depart from the high threshold test in the N case of imminent death.

The Supreme Court’s departure from the N test represents a welcome development in the jurisprudence of Article 3 Human Rights cases and the way that the domestic Court should in the future approach an alleged breach of Article 3 on medical grounds.

The test of ‘imminent death’ established in the N case has now been replaced with the test in Paposhvili which established that, although death is not imminent, if there is reason to believe that an applicant would face a real risk of a serious, rapid and irreversible decline in their health resulting in intense suffering or to a significant reduction in life expectancy due to a lack of access to appropriate treatment in the receiving country, Article 3 would be breached.

Article 3 medical cases – the way forward

Immigration lawyers welcome the Supreme Court decision to depart from the N case test. The use and simplification of the Paposhvili test in the case of AM is a very positive development from the perspective of Immigration solicitors and barristers as it provides the courts and lawyers with a road map on how to approach an alleged breach of Article 3 Human Rights on medical grounds in context of the real risk test established in Paposhvili. The test now links the existence of the risk, which crosses the threshold of Article 3 Human Rights engagement on medical grounds, with the absence of medical treatment in the country of origin.

There is a need to see those facing deportation with existing medical problems as human beings and individuals, who need help and protection, rather than as foreign criminals or illegal entrants who needs to be removed from the UK at all costs.

The new human rights Article 3 test established in the case of AM enable the courts to ensure protection of an individual’s Article 3 rights on medical grounds while respecting the public policy of removing the foreign nationals and those who have no right to stay in the UK.

human rights solicitors

If you are facing deportation or need advice about a potential human rights claim or an immigration appeal then call the expert team of human rights lawyers at London based OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

OTS Solicitors are recommended for their expertise in Immigration law in the two leading law directories, Legal 500 and Chambers Guide to the Legal Profession. The human rights team work with high profile Immigration and Human Rights barrister, Tomor Bahja, providing representation in all levels of tribunal and Court proceedings.

Appointments are available by video conferencing, Skype or telephone. Call OTS Solicitors on 0203 959 9123 to arrange an appointment.