Paposhvili: Where are we now?

Healthcare cases such as that considered by the Strasbourg Court in Paposhvili[1] are notoriously difficult and have often been approached with real apprehension by UK practitioners. The Supreme Court’s 2020 decision in AM (Zimbabwe) v Secretary of State for the Home Department[2] (AM) represented a welcome and overdue lowering of the exceptionally high threshold for succeeding in these claims. Nearly two years on, the more generous approach taken by the Supreme Court is well-established in the lower courts, including in contexts beyond the immediate scope of its judgment.

AM (Zimbabwe): Reception and impact of Paposhvili

AM (Zimbabwe) involved a challenge to expulsion on medical grounds, which was refused by the Home Office in 2013 on the basis that the high threshold for Article 3 ECHR was not even engaged.[3] Lord Wilson, giving the sole judgment in the Supreme Court, formally overruled the decision in N v Secretary of State for the Home Department and held that the relevant test was now whether removal would give rise to a real risk of a serious, rapid and irreversible decline in the person’s state of health resulting in intense suffering, or to a significant (i.e. substantial reduction) in life expectancy. He made clear that there was no longer any requirement that death be imminent in the event of removal, as the case pre-Paposhvili.[4] The Supreme Court also clarified what previously often appeared to be an insuperably high hurdle and partially reversed the burden of proof[5] by allowing the applicants to raise a prima facie case with which the Secretary of State must address.

However, while AM (Zimbabwe) was a welcome decision for ill migrants and their representatives, the decision lacked clarity on two key issues, namely: (i) the situation of migrants suffering from severe mental health conditions and (ii) the nature of ‘intense suffering’ in cases where there is not a reduction in life expectancy. The former has now been addressed in detail by the Upper Tribunal, the latter awaits further clarification.

Mental health conditions

In practice, many of the individuals seeking to resist expulsion on the grounds of ill-health suffer from serious psychiatric conditions (often in conjunction with physical health problems) and argue that their forcible expulsion will lead to a catastrophic deterioration in mental health, possibly resulting in suicide.

The argument advanced in favour of applying AM with its full force in mental health cases is that the jurisprudence in mental health cases derives from the threshold set out in D v UK and N v UK and therefore the effect of Paposhvili must equally apply to cases based on mental health problems, as is consistent with the ECtHR’s decision in Savran v Denmark.[6] It follows logically then that where removal leads to a decline in mental health resulting in a real risk of suicide and thus reduction of life expectancy or intense suffering, it should fall within the scope of protection of Article 3.

This analysis has now been accepted by both the High Court and Upper Tribunal. In Carlos v SSHD[7] the High Court accepted without question that Paposhvili (and the gloss on it given by the Supreme Court in AM) applied with equal force in mental health cases and claims based on the risk of suicide. There was little discussion of whether those authorities should be modified in the context of mental health claims.

Conversely, in MY (Suicide risk after Paposhvili)[8] the Upper Tribunal considered this issue at length and accepted that, in Article 3 claims based on mental health problems, ‘the test to be applied … is that found in §183 in Paposhvili as explained by the Supreme Court in AM’  and that, ‘there is nothing in European or domestic case law to support any contention that Paposhvili does not apply to suicide cases’.[9] The Tribunal accepted that J and Y continued to apply following AM but rejected the submission made on behalf of the Home Office that those cases required a ‘threshold test’ or ‘further burden’ on the applicant to be considered before applying the test in AM.[10]

Intense suffering

 In both physical and mental health Article 3 cases, analysing what constitutes ‘intense suffering’ will be challenging and case-specific. It was perhaps prudent of the Supreme Court not to embark on any obiter analysis of what must necessarily be an open-textured concept, that will vary from case to case. Nevertheless, this key term remains ambiguous and open to varying interpretation. Relevant factors when considering whether a claimant’s deterioration will lead to ‘intense suffering’ are likely to include:

• The degree of physical and / or mental pain and suffering which an individual will face;
• The duration and nature of such suffering;
• The applicant’s ability, following forcible removal, to care for themselves and maintain basic standards of hygiene and nutrition;
• The applicant’s likely prognosis following a forced removal;
• Their risk of suicide and / or self-harm;
• The degree to which their suffering could be mitigated by accessible and available treatment or support in the receiving country;
• Their risk of harm from society, including discrimination, stigma and / or refusal of services; and
• Whether their condition is liable to render them homeless and / or destitute (although practitioners should carefully consider GS (India) in making such an argument).

Medical expulsion cases today

The landscape for medical expulsion cases has substantially improved for claimants since the Supreme Court’s decision in AM. These remain challenging cases to win but practitioners are no longer faced with the often-insurmountable threshold of exceptionality set out in D v UK. AM has certainly not opened the floodgates and the Upper Tribunal recently emphasised that the standard in such cases ‘remains […] rigorous’.[11] Notwithstanding this, we can see from MY that practitioners are now able to succeed in these cases where they could not have done so before AM.[12] The partially-reversed burden of proof is useful for claimants in urgent judicial review cases (often concerning removal), where the ability to mount a prima facie case of an Article 3 breach should be sufficient to obtain interim relief while the claim is assessed by the Secretary of State and any response is challenged, possibly by way of appeal proceedings.

Article 3 claims based on risks to physical and/or mental health following return to the claimant’s country of origin only succeed where there is high-quality, detailed and robust medical evidence which considers the individual’s diagnosis, medical history and prognosis following removal in detail.[13] Country expert evidence is often also needed, in particular on the availability and accessibility of effective treatment in the receiving country. These cases often founder where the Secretary of State can point to some aspect of the evidence with which the experts have not sufficiently grappled, such as broad assertions about the availability of an adequate healthcare system in the receiving country. Medical experts should be made aware of the terms of the Paposhvili judgment (especially its para 183 and the Supreme Court’s analysis) and asked to opine on the issues arising (e.g. the degree of the speed of any decline, whether it would be irreversible, the seriousness of suffering, etc).[14]

The Home Office’s guidance Medical claims under Articles 3 and 8 of the ECHR[15] reflects the government’s robust attitude to such claims. The guidance not unfairly characterises the more generous test under AM (Zimbabwe) as still requiring a claimant’s condition to reach a ‘very high’ threshold and emphasises the language of exceptionality used in the case law. The guidance is detailed and engages closely with the Supreme Court’s decision, encouraging caseworkers to scrutinise any arguments about inaccessibility or unavailability of treatment closely. The Home Office is often willing to rely on assertions of adverse credibility to allege that someone has more support than claimed and / or is exaggerating their symptoms.[16] In appropriate cases, the Home Office will seek assurances from the relevant receiving state and/or its own evidence about the availability of medical treatment.[17]

These developments are significant for all those working with seriously ill migrants facing removal, including, among others, local authorities and NHS bodies.

Miranda Butler is a barrister at Landmark Chambers specialising in public law and human rights. She also teaches at LSE University.

[1] [2016] ECHR 1113.

[2] [2020] UKSC 17.

[3] AM (Zimbabwe) (n 1), para 9.

[4] AM (Zimbabwe) (n 1), para 22.

[5] Prior to AM, the burden was wholly on applicants to demonstrate that their removal would breach Article 3. The Supreme Court has now partially reversed that burden so that, where an applicant adduces evidence to show that they face a substantial risk of inhuman and degrading treatment if returned, the burden shifts to the Secretary of State to dispel any serious doubts raised by the applicant. If the Secretary of State fails to dispel those doubts the Article 3 claim will succeed. If the Secretary of State does produce rebuttal evidence (possibly by obtaining assurances from the receiving state), the burden will effectively shift back to the applicant to show that, notwithstanding this rebuttal evidence, they face a breach of Article 3 if returned.

[6] Savran v Denmark App no 57467/15 (ECtHR, 1 October 2019).

[7] [2021] EWHC 986 (Admin).

[8] [2021] UKUT 232 (IAC).

[9] Ibid paras 117-118.

[10] Ibid paras 120-123.

[11] KAM v SSHD [2020] UKUT 269, para 52.

[12] It is also notable that the Secretary of State conceded appeals based on Article 3 mental ill-health prior to MY in light of AM: see AO v SSHD (31 July 2020, unreported), Upper Tribunal (IAC), HU/10770/2017 and Ejoye v SSHD (6 October 2020, unreported) Upper Tribunal (IAC), HU/08479/2019.

[13] The Tribunal has been ready to dismiss claims where the medical evidence is weak, notwithstanding the slightly more generous test set out in AM: see ZKS v SSHD (18 August 2020, unreported), Upper Tribunal (IAC), PA/07377/2019 and Ainte (material deprivation – Art 3 – AM (Zimbabwe)) [2021] UKUT 203 (IAC).

[14] Experts and practitioners should refer to the guidance from the Royal College of Psychiatrists in preparing medical reports, ‘Psychiatric reports: preparation and use in cases involving asylum, removal from the UK or immigration detention’ (2015) CR199, 18.

[15] Currently v. 8.0, dated 19 October 2020. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/927593/medical-claims-_article3and8_-v8.0ext.pdf

[16] See, e.g., ‘Just tell us what happened to you: autobiographical memory and seeking asylum, Herlihy, Jobson and Turner, Appl. Cognit. Psychol. 26: 661-676 (2012), which reviews the Secretary of State’s heavy reliance upon credibility and notes that ‘the asylum process relies heavily on how the decision maker assesses the credibility of the claimant and the truth of their autobiographical account’.

[17] Such as in YA (Somalia) v SSHD (2020) JR/5428/2019, where the Secretary of State not only contacted clinicians in Somalia to obtain confirmation that specific treatment would be available but agreed to commission and fund treatment in the event of the applicant’s return.

To subscribe to our Health and Social Care Insight and get the blog posts sent straight to your inbox, click here.