AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17

A Zimbabwean national with HIV challenged deportation under Article 3 ECHR, arguing removal would deny him access to life-sustaining medication. The Supreme Court departed from the restrictive N v SSHD approach, adopting the broader Paposhvili test for assessing medical cases under Article 3, and remitted the case for rehearing.

Facts

The appellant, a Zimbabwean national born in 1987, had lived in the UK since 2000 and was granted indefinite leave to remain in 2004. He accumulated numerous criminal convictions from 2005 onwards, including serious offences in 2009 for possession of a firearm, ammunition, and heroin with intent to supply, resulting in a total sentence of nine years imprisonment. A deportation order was made against him in 2007.

The appellant was diagnosed HIV positive in 2003. By 2012, his condition required antiretroviral therapy (ART), and he was prescribed Eviplera, which stabilised his condition. Medical evidence indicated that without continued ART, his CD4 count would fall, leaving him vulnerable to opportunistic infections leading to death. The specific medication he required was not available in Zimbabwe.

Issues

The central issue was whether the decision of the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31, which set a very high threshold for Article 3 claims based on ill-health (essentially requiring the applicant to be on their deathbed), remained good law following the Grand Chamber’s judgment in Paposhvili v Belgium [2017] Imm AR 867.

Interpretation of Paposhvili

A subsidiary issue was the correct interpretation of the Paposhvili judgment, particularly whether the Court of Appeal had adopted too narrow an interpretation of the new test articulated by the Grand Chamber.

Judgment

The Supreme Court unanimously allowed the appeal. Lord Wilson, delivering the judgment, held that the court should depart from the decision in N v SSHD in light of Paposhvili.

The Paposhvili Test

Lord Wilson analysed the Grand Chamber’s formulation in paragraph 183 of Paposhvili:

“The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, 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 to a significant reduction in life expectancy.”

Criticism of the Court of Appeal’s Interpretation

Lord Wilson found validity in the criticism of the Court of Appeal’s interpretation, which had effectively translated “a significant reduction in life expectancy” into “imminence of death”. He stated:

“The result is that in two sentences a significant reduction in life expectancy has become translated as the imminence of death. It is too much of a leap.”

On the meaning of “significant” reduction in life expectancy, Lord Wilson held it must mean “substantial” in context, noting that significance depends on individual circumstances such as age.

Procedural Requirements

The court endorsed the procedural framework from Paposhvili, requiring applicants to adduce evidence capable of demonstrating substantial grounds for believing Article 3 would be violated (a “prima facie case”), whereupon the burden shifts to the returning state to dispel serious doubts about treatment availability and accessibility in the receiving state.

Implications

This decision represents a significant development in UK immigration law regarding medical cases under Article 3 ECHR. The threshold is no longer confined to cases where death is imminent in the returning state. The court emphasised the importance of following ECtHR Grand Chamber decisions except in highly unusual circumstances, and acknowledged the earlier discomfort expressed by the House of Lords with the restrictive approach in N v SSHD.

The case was remitted to the Upper Tribunal for fresh consideration on up-to-date evidence properly directed to the Paposhvili requirements, recognising that the original medical evidence was not prepared with the correct legal test in mind.

Verdict: Appeal allowed. The case was remitted to the Upper Tribunal for rehearing on the appellant’s Article 3 claim, with the Supreme Court departing from the House of Lords decision in N v Secretary of State for the Home Department and adopting the broader test from Paposhvili v Belgium.

Source: AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17