AM (Zimbabwe) & Anor v The Secretary of State for the Home Department

Factual and Procedural Background

This judgment concerns two appeals addressing the operation of Article 3 of the European Convention on Human Rights (ECHR), as incorporated into domestic law under the Human Rights Act 1998, in the context of removal of foreign nationals from the UK who suffer from serious illnesses. The domestic legal position was established in the case of N v Secretary of State for the Home Department [2005] UKHL 31, and endorsed by the European Court of Human Rights (ECtHR) in N v United Kingdom (2008) 47 EHRR 39. The appeals raise the question whether the test for Article 3’s application should be adjusted following the ECtHR’s later Grand Chamber judgment in Paposhvili v Belgium (2016).

The First-tier Tribunal (FTT) made factual findings in each case, which were not challenged on appeal. The appeals focus solely on the correct application of Article 3 to those facts.

Facts in the First Appellant’s Case

The appellant is a Zimbabwean national who came to the UK as a teenager and was granted indefinite leave to remain. He has a criminal record and is subject to deportation. He is HIV positive and treated with an antiretroviral drug called Eviplera, which is not available in Zimbabwe. Medical evidence indicated that other antiretroviral treatments available in Zimbabwe would be tolerable. The FTT held that Article 3 did not prevent deportation, as the appellant was not at a critical stage of illness and treatment alternatives existed in Zimbabwe. The Upper Tribunal upheld this conclusion, noting that the burden was on the appellant to prove a real risk of significant health deterioration or death if deported.

Facts in the Second Appellant’s Case

The second appellant is a Jordanian national diagnosed with cancer, successfully treated first in Jordan and then in the UK after a relapse. He fears relapse and contends that the advanced treatment he received in the UK would not be available in Jordan. The Secretary of State rejected his application for leave to remain, concluding suitable treatment was available in Jordan. The FTT and Upper Tribunal dismissed claims under Articles 3 and 8, finding no real risk of ill-treatment or inadequate care in Jordan, and that the appellant would have family support there.

Legal Issues Presented

1. Whether the test for applying Article 3 of the ECHR in cases of removal of seriously ill foreign nationals should be modified in light of the ECtHR Grand Chamber judgment in Paposhvili v Belgium.
2. Whether the appellants’ respective medical conditions satisfy the threshold for protection under Article 3 against removal from the UK.
3. The procedural obligations of domestic authorities to assess Article 3 claims in removal cases.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
N v Secretary of State for the Home Department [2005] UKHL 31	Established the domestic legal test under Article 3 for removal of seriously ill foreign nationals; high threshold requiring "very exceptional circumstances" such as imminent death and lack of medical/social support.	Held binding authority; the court applied its test to the facts and concluded neither appellant met the threshold for protection under Article 3.
N v United Kingdom (2008) 47 EHRR 39	Endorsed the House of Lords test; clarified that removal does not violate Article 3 unless "very exceptional circumstances" exist, e.g., imminent death without care or support.	Used as foundational European authority; the court reaffirmed the high threshold and noted that both appellants were far from meeting it.
Paposhvili v Belgium [2016] ECHR 1113	Clarified and modestly relaxed the Article 3 test to include cases where there is a real risk of a serious, rapid, and irreversible health decline causing intense suffering or significant reduction in life expectancy due to lack of appropriate treatment in the receiving state.	The court interpreted the judgment as providing a procedural obligation on domestic authorities to assess Article 3 claims fully, but held the extension of protection to be modest and did not find the appellants met this test.
D v United Kingdom (1997) 24 EHRR 423	Paradigm case for Article 3 protection in medical removal cases involving imminent death and absence of care or support.	Referenced as the benchmark for "very exceptional circumstances" under Article 3; the court emphasized its continuing relevance and high threshold.
GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40	Aligned the tests under Articles 3 and 8 of the Convention in medical removal cases.	Noted as influencing the approach to claims but did not alter the binding nature of N v Secretary of State.
Kay v Lambeth London Borough Council [2006] UKHL 10	Established rules of precedent binding on lower courts.	Applied to affirm that the House of Lords decision in N v Secretary of State remains binding domestic authority despite later ECtHR clarifications.

Court's Reasoning and Analysis

The court began by reaffirming the binding authority of the House of Lords decision in N v Secretary of State for the Home Department, which sets a high threshold for Article 3 protection in removal cases involving serious illness. The court noted that the ECtHR Grand Chamber decision in Paposhvili v Belgium clarifies and modestly relaxes this threshold by recognizing that Article 3 may apply not only to imminent death cases but also to cases involving a serious, rapid, and irreversible health decline causing intense suffering or significantly reduced life expectancy due to lack of appropriate treatment in the receiving state.

However, the court emphasized that this extension is modest and does not overturn the strict test established in N v Secretary of State. The court carefully analyzed the medical evidence and circumstances of both appellants against the clarified test in Paposhvili and found neither appellant demonstrated substantial grounds for believing they face a real risk of serious and rapid health decline or intense suffering if removed.

For the first appellant, the court noted that although he is HIV positive and treated with a drug not available in Zimbabwe, there was no evidence he could not tolerate alternative treatments or that removal would cause intense suffering or imminent death. For the second appellant, whose cancer is in remission, the court found that treatment in Jordan was adequate and family support was available, making the risk speculative and insufficient to meet the Article 3 threshold.

The court also addressed the procedural obligation highlighted in Paposhvili, underscoring the importance of domestic authorities thoroughly assessing Article 3 claims before removal decisions are enforced. The court concluded that while the procedural duty is critical, the substantive test for protection remains high.

Finally, the court considered whether it should provide guidance on the meaning of Paposhvili despite the appeals being bound to fail under existing precedent. It concluded that providing authoritative interpretation of the new test was appropriate to ensure consistent application in lower courts and tribunals, particularly concerning stays of removal pending appeal.

Holding and Implications

The appeals are dismissed.

The court held that neither appellant met the threshold for protection under Article 3 as clarified by Paposhvili v Belgium. The existing binding authority of N v Secretary of State for the Home Department remains in force domestically, requiring very exceptional circumstances such as imminent death or intense suffering due to lack of treatment and support in the receiving state.

The decision implies that while the ECtHR has modestly relaxed the test for Article 3 protection in medical removal cases, domestic courts remain bound by the higher threshold until the Supreme Court decides otherwise. The court’s guidance on the interpretation of Paposhvili will assist lower courts and tribunals in applying the test consistently, especially when considering stays of removal pending further appeal.

No new precedent altering the substantive test was established by this decision; its primary effect is to dismiss the appeals and clarify procedural and interpretative issues pending possible Supreme Court review.