The Supreme Court has today handed down judgment in AM (Zimbabwe) v Secretary of State for the Home Department  UKSC 17. It fully endorses the Grand Chamber decision in Paposhvili v Belgium (2016), rejecting the Court of Appeal’s interpretation of Paposhvili as too narrow and, significantly, departing from the long-standing House of Lords authority of N v SSHD  2 A.C. 296. In doing so, the Supreme Court accepted the entirety of the submissions of the Intervener, the AIRE Centre.
The case involved the circumstances in which a seriously ill foreign national can avoid deportation, by relying on Article 3 ECHR, due to the health consequences of returning to their country of origin. Previously, the House of Lords in N v SSHD, and the European Court of Human Rights in a series of cases, had confined reliance on Article 3 ECHR to cases where the individual was, essentially, already on their death-bed. In 2016, however, the Grand Chamber in Paposhvili appeared to broaden substantially the circumstances in which such a seriously ill foreign national could rely on Article 3 ECHR. C would now have to show substantial grounds for believing that although not at imminent risk of dying, he/she 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,
- A significant reduction in life expectancy.
The Supreme Court unanimously accepted that this was the new test and rejected what it saw as the gloss that the Court of Appeal had put on this test. Moreover, the Court accepted the substantial new procedural obligations imposed on public authorities by Paposhvili when seeking to determine the conditions in the country of origin.
Charles Banner QC and Yaaser Vanderman acted for the AIRE Centre, who were granted permission to intervene by way of written and oral submissions, and whose submissions were accepted wholesale by the Supreme Court. They were instructed by Andrew Lidbetter, Jasveer Randhawa and Claire Hall of Herbert Smith Freehills LLP.