Factual and Procedural Background
The Respondent is a national of The State, born in January 1986, who arrived in The State on 10 February 2000 on a forged passport and applied for indefinite leave to remain on 23 November 2003. That application was refused on 4 June 2007 and the resulting appeal was dismissed on 27 November 2007; appeal rights were exhausted on 3 January 2008. The Respondent remained unlawfully in The State and, in March 2009, committed a series of violent sexual offences against three women. He was convicted on 8 September 2009 of three counts of attempted rape and kidnapping with intent to commit a sexual offence and was made the subject of an indefinite hospital order under section 41 of the Mental Health Act 1983.
The Appellant issued a notice of liability to deportation on 22 June 2015 and refused the Respondent's human rights claim on 3 November 2015. The First-tier Tribunal ("FTT") dismissed an appeal on 6 July 2016. A deportation order was signed on 2 February 2017. The Respondent pursued multiple further applications; on 7 September 2021 the Appellant issued a further refusal decision. The FTT reheard the matter in June 2024 and allowed the Respondent's appeal by Determination dated 21 June 2024. The Appellant's appeal to the Upper Tribunal ("UT") was dismissed. The Appellant then obtained permission to appeal to this Court; the Court of Appeal allowed the Appellant's appeal and set aside the FTT and UT decisions.
Legal Issues Presented
- Whether the FTT correctly applied the Article 3 test as formulated in AM (Zimbabwe) [2020] UKSC 17, in particular whether it applied the requirement that deterioration must result in "intense suffering".
- Whether the FTT's conclusion that removal to the Respondent's State would lead, by a chain of events, to treatment contrary to Article 3 involved impermissible speculation or too many links in the chain of causation.
- Whether procedural and pleading rules permitted the Appellant to rely on the "intense suffering" point before this Court despite its limited or unclear pleading below.
Arguments of the Parties
Appellant's Arguments
- The FTT failed to give adequate reasons and made material errors of law in approaching the Respondent's return to The State.
- The FTT engaged in impermissible speculation as to a chain of events (non-compliance with medication → relapse → offending → imprisonment → denial of treatment → serious, rapid and irreversible decline) and the links were too remote to ground an Article 3 breach attributable to removal.
- The FTT omitted to apply the critical "intense suffering" component of the AM (Zimbabwe) test and therefore misapplied Article 3 jurisprudence.
- Treatment and medication are available in The State and the threshold for succeeding on Article 3 medical grounds is very high; the case is not exceptional.
Respondent's Arguments
- The medical and tribunal evidence established that the Respondent is seriously ill, at real risk of relapse on return, and that relapse would likely lead to further offending and a period in prison in The State during which he would not receive medication or adequate care.
- Objective country evidence and medical reports supported a finding that, if imprisoned following relapse, the Respondent would face conditions and lack of treatment that could produce serious, rapid and irreversible deterioration amounting to an Article 3 breach.
- The FTT's findings that the Respondent would have limited social support and variable access to community rehabilitation in The State were fact-based and properly open to the tribunal to decide.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Devaseelan [2002] UKIAT 2002 |
Previous FTT findings concerning family support and access to treatment in the Respondent's State. |
The FTT started from and engaged with the prior tribunal's findings; the Court of Appeal noted those earlier findings were relied on in the Determination. |
| AM (Zimbabwe) [2020] UKSC 17 |
Statutory and Convention test for Article 3 in ill-health removal cases: serious illness plus substantial grounds for a real risk that absence/inaccessibility of appropriate treatment would expose the person to serious, rapid and irreversible decline resulting in intense suffering or to a significant reduction in life expectancy. |
The Court held the FTT failed to apply AM (Zimbabwe) correctly because it omitted the "intense suffering" element and did not identify facts showing that threshold was met. |
| Paposhvili v Belgium [2016] ECHR 1113 |
ECtHR formulation of the high threshold for Article 3 in cases involving seriously ill persons and removal. |
Referred to as part of the framework that AM (Zimbabwe) implements; used to explain the required "intense suffering" threshold. |
| Aswat v United Kingdom (2014) 58 EHRR 1 |
Extradition context where removal to detention in a foreign prison without family support posed a real risk of serious deterioration reaching Article 3 threshold. |
The Court distinguished Aswat: extradition (to detention) differs from deportation to live in the community; Aswat did not support the chain-of-causation relied upon by the FTT in this deportation case. |
| R (N) v SSHD [2005] UK HL 31; [2005] 2 AC 296 |
Earlier House of Lords articulation (Baroness Hale) of a narrow test (imminent risk of dying) in extreme health cases prior to Paposhvili. |
Referenced as historical context showing the development of the applicable test culminating in Paposhvili and AM (Zimbabwe). |
| Ullah |
Principle that specialized tribunals are entitled to deference on fact-finding and that appellate review must be cautious. |
The UT had relied on Ullah to justify deference to the FTT; the Court of Appeal considered deference but found legal error in the FTT's reasoning. |
| R (Talpada) v SSHD [2018] EWCA Civ 841 |
Requirement for procedural rigour in public law litigation and that grounds of appeal should be clear and succinct. |
The Court relied on Talpada to assess the adequacy of the Appellant's pleadings and to emphasize procedural expectations for raising points below and on appeal. |
| Lata (FTT principal controversial issues) [2023] UK UT 163 |
Duty on parties to identify relevant issues and that tribunals are not required to search for unargued points. |
Invoked to explain the limits of permitting new points on appeal and to assess whether the "intense suffering" point could be considered. |
| AL v SSHD [2026] EWCA Civ 370 |
Recent appellate confirmation of the rules about issues and appeals in this context. |
Referenced as authority supporting the procedural approach to appeals in deportation/health cases. |
| Singh v Dass [2019] EWCA Civ 360 |
Guidance on when appellate courts should permit new points not raised below. |
Applied to justify permitting the Appellant to press the "intense suffering" point before this Court despite limited pleading below. |
| Mullarkey v Broad [2009] EWCA Civ 2 |
New points on appeal requiring new evidence or a materially different trial are generally not permitted. |
Used in the discussion of when appellate courts should allow points not raised at first instance. |
| R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 |
Criteria for allowing a pure point of law to be raised on appeal where it was not raised below. |
Referred to when considering whether the "intense suffering" point could be heard by this Court. |
| AM (Article 3, health cases) Zimbabwe [2022] UKUT 131 |
Upper Tribunal guidance that mere worsening of condition is insufficient; the required outcome is "intense suffering". |
Referred to as supporting the proposition that tribunals must specifically address the intense suffering element; the Court of Appeal endorsed that requirement. |
| Savran and Denmark [2021] ECHR 1025 |
ECtHR authority considered in the development of Article 3 health jurisprudence. |
Referenced in the appellate discussion of the Article 3 framework. |
| English v Emery Reimbold |
Illustrative procedural point about pleading and reasons in tribunal decisions (referenced by analogy). |
Mentioned as a type of case where a party might legitimately complain of inadequate reasons; the Court distinguished the present circumstances. |
Court's Reasoning and Analysis
Judge Bean (with whom Judge Singh and Judge Baker agreed) reviewed the procedural posture and then addressed, in logical order, (a) the alleged impermissible speculation/causation and (b) the "intense suffering" requirement under Article 3 as clarified by Paposhvili and AM (Zimbabwe).
On causation/speculation the Court identified the chain of events relied upon by the FTT (non-compliance with medication on arrival → family non-intervention → relapse → offending in The State → remand/imprisonment before transfer to hospital → denial of medication in prison → serious, rapid and irreversible deterioration). The Court concluded that this involved too many links and was impermissibly speculative; the remote consequences were not a sequence for which the Appellant (the removing State) could sensibly be held responsible. The Court distinguished Aswat on the ground that Aswat concerned extradition to prison detention without family ties, whereas the present case concerned deportation to live in the community, not immediate incarceration.
On the "intense suffering" point the Court recounted the development of the law (N v The United Kingdom; Paposhvili; AM (Zimbabwe)) and emphasised that AM (Zimbabwe) requires proof not only of serious illness and risk of serious, rapid and irreversible decline but also of resulting "intense suffering". The Court found that the FTT's Determination did not mention or apply that critical requirement, nor did it set out facts establishing that threshold. In combination with the causation criticism, the Court concluded the FTT's conclusion that Article 3 was engaged was legally unsustainable.
The Court also considered procedural objections to the raising of the "intense suffering" point and concluded that, on the material before the FTT and given the manner in which AM (Zimbabwe) had been invoked below, the Appellant should be permitted to press the point before this Court.
Finally, applying the correct legal test to the primary facts as found by the FTT, the Court concluded the Respondent did not satisfy the Article 3 threshold in AM (Zimbabwe) and there was no basis to sustain the tribunal decisions that had allowed the Respondent's appeal.
Holding and Implications
APPEAL ALLOWED
Holding: The Court allowed the Appellant's appeal, set aside the FTT's Determination dated 21 June 2024 and the UT's decision upholding that Determination, and concluded that the Respondent did not meet the Article 3 test as required by AM (Zimbabwe).
Implications: The direct consequence is that the tribunal decisions allowing the Respondent's appeal were quashed and the existing deportation order is to be put into effect; the Court considered it unnecessary to remit the matter for further fact-finding. The Court clarified that tribunals must apply AM (Zimbabwe) including the "intense suffering" element and must avoid basing Article 3 findings on chains of causation that are impermissibly speculative.