Press Release on AM (Zimbabwe)

 Today, Wednesday 29^th April, the UK Supreme Court (UKSC) delivered judgment in AM (Zimbabwe) v Secretary of State for the Home Department, a case in which the AIRE Centre acted as a third-party intervener.

The issue in AM (Zimbabwe) concerned the applicable test for when removal of seriously ill people to their country of origin would raise an issue under article 3 of the European Convention on Human Rights (prohibition on inhuman or degrading treatment). The appellant is a national of Zimbabwe and has HIV. He argued that if deported to Zimbabwe, he would be unable to access the medication which, here in the UK, prevents his relapse into full-blown AIDS.

The case provided the UKSC with the opportunity to give authoritative guidance on how Paposhvili v Belgium (Application no. 41738/10), decided in 2016 by the Grand Chamber of the European Court of Human Rights, should be applied by English courts.

In allowing the appeal, the UKSC overturned the Court of Appeal decision that removal would only violate article 3 if intense suffering or death would be imminent in the receiving state as a result of the non-availability of treatment which would have been available in the UK.

The AIRE Centre argued before the UKSC that the Court of Appeal had misinterpreted what the Grand Chamber had said in Paposhvili and that a ‘significant reduction in life expectancy’ had become translated as the imminence of death. This, the Court felt, was too much of a leap (para 30).

In the judgment, the UKSC makes clear that it remains the case that applicants in such cases must demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. Once the applicant produces evidence to meet this standard then the burden shifts to the returning state (in this case the UK) to challenge or counter it. In doing so any decision maker (including the Courts) must be aware of and consider issues such as the accessibility of treatment in the receiving state, the cost of such treatment, and the existence of a family network of support. It would also need to consider any assurances from the receiving state about the availability of treatment.  

Lord Wilson, who delivered the lead judgment, makes the point that these issues must be looked at on  a case by case basis, and that a 24 year old for instance, who has his/her life expectancy reduced to 2 years on deportation could well have a good Article 3 ECHR claim (para 31).

The question of when a state can deport a foreign citizen who, while lawfully resident here, has committed a string of serious crimes will be considered again by the Grand Chamber of the European Court of Human Rights, in the case of Savran v Denmark (where a Turkish national argues that his mental health condition makes his expulsion from Denmark unlawful). The Grand Chamber will no doubt be keen to analyse today’s judgment by the UKSC in AM (Zimbabwe) when they eventually come to decide Savran.  

 

Charlie Banner QC, Yaaser Vanderman of Landmark Chambers, instructed by Herbert Smith Freehills, and all acting pro bono, represented the AIRE centre. The AIRE Centre is very grateful to them for their assistance.

 

 

 

 

 

 

The UK Supreme Court allows appeal in AM (Zimbabwe), departing from N v SSHD & following Paposhvili v Belgium, which it accepts extends the scope of Article 3 ECHR in medical cases.