FREE CHAPTER from ‘A Practical Guide to Health and Medical Cases in Immigration Law’ by Rebecca Chapman & Miranda Butler

CHAPTER TWO – DEVELOPMENT OF ARTICLE 3 HEALTHCARE CASES

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

This is an absolute right which makes no provision for exceptions and no derogation from it is permissible, even in the event of a public emergency.¹

Scope of Article 3

Threshold of application

Notably, not all types of harsh treatment fall within the scope of article 3 as the Strasbourg Court has made clear in a number of cases that ill-treatment must attain a minimum level of severity. In Ireland v. United Kingdom (A/25) (1979-80) 2 E.H.R.R. 25, at [162], the Strasbourg Court held that the assessment of the minimum level of severity is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.²

Type of ill-treatment to be established for the purpose of article 3

The Strasbourg Court accepted in D v. United Kingdom (App. No. 30240/96) (1997) 24 EHRR 423 that suffering caused by naturally occurring illness, be it physical or mental, may also fall under the protection of Article 3 where it is, or risks, being exacerbated by treatment for which the authorities are responsible: see further below.

Extraterritorial application

The Strasbourg Court has held that where ‘substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to article 3’ the Convention requires that the victim not be removed to the country in question.³ Conditions in the receiving country are to be assessed in light of the standards imposed by Article 3.⁴

Positive obligations

In general terms, Article 3 imposes a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, as well as imposing negative obligations, Article 3 also imposes positive obligations upon Contracting States e.g. to refrain from certain actions; to take positive action to secure individuals their rights, and to protect them from prohibited treatment. Consequently, there is a positive dimension to the right that requires a State to take action to prevent inhuman or degrading treatment being inflicted by persons not acting on behalf the State. The Strasbourg Court confirmed in L v. Lithuania (App. No. 27527/03) (2008) 46 E.H.R.R. 22, at §46:

“46. The Court observes that the prohibition under Article 3 of the Convention is of an absolute nature, but that the kind of treatment qualified as inhuman and degrading will depend upon an examination of the facts of the specific case in order to establish whether the suffering caused was so severe as to fall within the ambit of this provision. Moreover, according to its established case-law, Article 3 entails a positive obligation on the part of the State to protect the individual from acute ill-treatment, whether physical or mental, whatever its source. Thus if the source is a naturally occurring illness, the treatment for which could involve the responsibility of the State but is not forthcoming or is patently inadequate, an issue may arise under this provision (see, for example, D. v. the United Kingdom, 2 May 1997, §§ 51- 54, Reports of Judgments and Decisions 1997-III, and, mutatis mutandis, Pretty v. the United Kingdom, no. 2346/02, §§ 49-52, ECHR 2002‐ III).”

Unsurprisingly, the question that has arisen before both domestic courts and tribunals and the Strasbourg Court is the nature and extent of the applicable threshold in circumstances where the harm results from naturally occurring illness rather than the acts or omissions of State authorities.

D v UK⁵ and establishment of the ‘deathbed case’

D. was a national of St Kitts, who arrived in the UK in 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found to be in possession of a substantial quantity of cocaine, was refused leave to enter on the ground that his exclusion was conducive to the public good and given notice that he would be removed to St Kitts within a matter of days. D was then remanded in custody and prosecuted for the importation of controlled class A drugs. He pleaded guilty and was sentenced to six years’ imprisonment. He was released on licence in 1996 and placed in immigration detention pending his removal to St Kitts. In August 1994, while serving his prison sentence, D suffered an attack of PCP and was diagnosed as HIV positive and as suffering from AIDS, having been infected some time before his arrival in the UK. Directions were made for D’s removal to St Kitts in January 1996 whereupon his solicitors requested that the Secretary of State grant him leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life. This request was refused on 25 January 1996 by the Chief Immigration Officer on the basis that:

“While we are saddened to learn of Mr D[…]’s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions…”

D’s application for judicial review of this decision was unsuccessful as was a renewed application to the Court of Appeal. D lodged an application with the European Court of Human Rights on 15 February 1996, arguing that his removal to St Kitts would be a violation of Articles 2, 3, 8 and 13 of ECHR. The Commission found in his favour in respect of Article 3. During an oral hearing before the Court the Appellant’s argument at [40] was noted that:

“his removal to St Kitts would condemn him to spend his remaining days in pain and suffering in conditions of isolation, squalor and destitution. He had no close relatives or friends in St Kitts to attend to him as he approached death. He had no accommodation, no financial resources and no access to any means of social support.”

At [53] the Court held:

“In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3…Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.”

The Court found that the arguments in respect of Articles 2 and 8 did not raise any separate issues and in respect of Article 13, based on its previous judgments, the Court considered judicial review proceedings to be an effective remedy in relation to the complaints raised under Article 3 [70]. 

N v SSHD / UK⁶ drawing the line at ‘exceptional’ cases

N was a national of Uganda, who entered the UK in 1998. She became seriously ill and was admitted to hospital, where she was diagnosed with AIDS. N made an asylum claim (not based on her health). Her appeal against this decision was dismissed but allowed by an Adjudicator on the basis that her case fell within the scope of the Asylum Directorate Instructions then in force, which provided that exceptional leave to remain in or enter the United Kingdom must be given:

“… where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant’s life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK [United Kingdom] can be regarded as having assumed responsibility for his care. …”

The Secretary of State appealed to the Immigration Appeal Tribunal, who allowed the appeal. N’s appeal to the Court of Appeal was dismissed, both judgments being predicated on the basis that there was not a complete absence of medical treatment in Uganda, Laws LJ holding at [40]:

“… I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant’s home country (in contrast to what has been available in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. …an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one’s sympathy on pressing grounds …”

On appeal to the House of Lords, N’s appeal was again dismissed. The House of Lords, per Lord Nicholls, distinguished N’s case from that of D on the basis that D was dying [13] & [15] refer]; see also Lord Hope at [36]. Lord Nicholls found the question that it is unacceptable to expel a person whose illness is irreversible and whose death is near but acceptable to expel a person whose illness is under control but whose death will occur once treatment ceases not to be capable of satisfactory humanitarian answers [13-14 refer]. Lord Hope held at [48] that the reason the Strasbourg Court held that exceptional circumstances were required in the D case was because of a departure from the principle at [54] in D. Lord Hope further held at [53]:

“[Any extension of the principles in D. v. the United Kingdom] would have the effect of affording all those in the [applicant’s] condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV/Aids had reached that which is available in Europe. It would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the States Parties to the Convention would ever have agreed to.”

On appeal to the Strasbourg Court, the Grand Chamber concluded:

“42. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support…

43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.”

Judges Tulkens, Bonello & Spielman issued a strong dissenting opinion, holding that the principle set out in Pretty v UK should:

“equally apply where the harm stems from a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country, if the minimum level of severity, in the given circumstances, is attained. Where a rigorous examination reveals substantial grounds for believing that expulsion will expose the person to a real risk of suffering inhuman or degrading treatment, removal would engage the removing State’s responsibility under Article 3 of the Convention.”

The dissenting Judges also criticised the majority in N for taking account of impermissible considerations (the burden on States obliged to provide free healthcare for aliens without the right to remain) as this was contrary to the absolute nature of Article 3.

In Mwanje v Belgium⁷ six out of seven of the judges, including Judge Tulkens, issued a partially concurring separate opinion, in which they called for the case law in N v. UK , which they felt bound to follow to preserve legal certainty, to be reconsidered one day, as it set a very high threshold for Article 3 violation on the basis of compelling humanitarian grounds and required an extreme factual scenario where a person is at the final stage of a disease, near death, as was the case in D v UK in order to find a violation of Article 3. They considered that this was not compatible with the letter and spirit of Article 3 given the fundamental and absolute nature of this right and did not adequately respect the integrity and dignity of the person. Unfortunately, however, given the majority judgment in N v UK this was the view that prevailed for the following decade in relation to cases brought on the basis of ill-health.

MSS v Belgium and subsequent cases

In a separate line of authorities, however, beginning with MSS v Belgium & Greece⁸ which concerned an Afghan asylum seeker who had passed through Greece en route to Belgium, who then sought to return him to Greece, the European Court of Human Rights held:

“263. In the light of the above and in view of the obligations incumbent on the Greek authorities under the European Reception Directive…, the Court considers that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.”

This was followed by Sufi & Elmi v UK⁹ which concerned Somali nationals who the UK proposed to deport to Somalia. The Strasbourg Court held:

“282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N v the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population… This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis are living in a situation of serious deprivation.”

283. Consequently, the Court does not consider the approach adopted in N v the United Kingdom to be appropriate in the circumstances of the present case. Rather, it prefers the approach adopted in MSS v Belgium and Greece, which requires it to have regard to an applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame (see MSS v Belgium and Greece, cited above, paragraph 254).”

In SHH v UK¹⁰ however, in which a severely disabled Afghani claimed that he would face a real risk of ill-treatment if he were returned to Afghanistan, the Strasbourg court referred both to MSS and Sufi & Elmi (paras 76 and 77) but followed neither, holding that the correct approach was that set out in N v UK and that no sufficiently exceptional circumstances were shown [95].

In Tarakhel v Switzerland¹¹ the Afghan asylum-seeking applicants claimed that if they were returned to Italy, they would be liable to be subjected to inhuman and degrading treatment linked to the existence of “systemic deficiencies” in the reception arrangements for asylum-seekers there. The Grand Chamber held at [122] following MSS v Belgium & Greece that:

“were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.”

In GS(India)¹² which concerned a number of linked cases mainly involving applicants suffering from end stage kidney failure, the Applicants argued that the MSS line of reasoning should be adopted in preference to that of N v UK but this was firmly rejected, Lord Justice Laws holding:

“62. This learning shows that there may be departures from the Article 3 paradigm other than of the kind vouchsafed in D v UK. These departures are variously justified. But such an approach is indicated in D itself, at paragraph 49, and in N at paragraph 43… In my judgment it is clear that the departures from the Article 3 paradigm given in MSS and the other cases to which I have referred do not extend the reach of the departure allowed in D and discussed at paragraphs 42 – 45 of N v UK. The plight of an individual whose life expectancy may be severely shortened by his removal or deportation to his home State is a distinct state of affairs whose treatment under the Convention is not qualified by the court’s approach, for example, to the reception conditions for asylum-seekers. The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant’s plight. But the fact that there are other exceptions unlike D or N does not touch cases – such as these – where the claimant’s appeal is to the very considerations which D and N address.

63. Accordingly, in my judgment, the Strasbourg jurisprudence in cases such as MSS and Sufi & Elmi casts no significant light on the approach to be taken by this court to the binding authority of N v Secretary of State in the House of Lords …”

Applications were made to the European Court of Human Rights which were ultimately not determined due to the judgment in Paposhvili v Belgium¹³ as a consequence of which the Secretary of State agreed to reconsider the cases.

Paposhvili v Belgium App. No 41738/10, 13.12.16

This landmark judgment concerned a Georgian national who was facing deportation due to criminal activity in Belgium but suffered from leukaemia and recurrent tuberculosis which had caused lung disease. He claimed that he would be unable to access adequate medical treatment in Georgia and was therefore at risk of ill-treatment in violation of Article 3 and accelerated death in breach of Article 2 if he were expelled there. His application to the Fifth Section was dismissed but his case was referred to the Grand Chamber and the applicant died pending those proceedings, which were continued by his family. The Grand Chamber held at [181]-[183]:

“181. The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N. v. the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N. v. the United Kingdom, other than the case contemplated in D. v. the United Kingdom.

182. In the light of the foregoing, and reiterating that it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32; Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 121, ECHR 2005-I; and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 175, ECHR 2012), the Court is of the view that the approach adopted hitherto should be clarified.

183. The Court considers that the “other very exceptional cases” within the meaning of the judgment in N. v. the United Kingdom (§ 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…

186. …it is for the Applicants to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if the measure complained of were to be implemented, they would be exposed to a real risk of being subjected to treatment contrary to Article 3. In this connection, it should be observed that a certain degree of speculation is inherent in the preventative purpose of Article 3 and that it is not a matter of requiring persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment.

187. Where such evidence is adduced, it is for the authorities of the returning State, in the context of domestic procedures, to dispel any doubts raised by it (see Saadi, cited above, § 129, and F.G. v. Sweden, cited above, § 120). The risk alleged must be subjected to close scrutiny (see Saadi, cited above, § 128; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 214, 28 June 2011; Hirsi Jamaa and Others, cited above, § 116; and Tarakhel, cited above, § 104) in the course of which the authorities in the returning State must consider the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances (see Vilvarajah and Others, cited above, § 108; El-Masri, cited above, § 213; and Tarakhel, cited above, § 105). The assessment of the risk as defined above (see paragraphs 183-84) must therefore take into consideration general sources such as reports of the World Health Organisation or of reputable non-governmental organisations and the medical certificates concerning the person in question.

188. As the Court has observed above (see paragraph 173), what is in issue here is the negative obligation not to expose persons to a risk of ill‑treatment proscribed by Article 3. It follows that the impact of removal on the person concerned must be assessed by comparing his or her state of health prior to removal and how it would evolve after transfer to the receiving State.

189. As regards the factors to be taken into consideration, the authorities in the returning State must verify on a case-by-case basis whether the care generally available in the receiving State is sufficient and appropriate in practice for the treatment of the applicant’s illness so as to prevent him or her being exposed to treatment contrary to Article 3 (see paragraph 183 above). The benchmark is not the level of care existing in the returning State; it is not a question of ascertaining whether the care in the receiving State would be equivalent or inferior to that provided by the health-care system in the returning State. Nor is it possible to derive from Article 3 a right to receive specific treatment in the receiving State which is not available to the rest of the population.

190. The authorities must also consider the extent to which the individual in question will actually have access to this care and these facilities in the receiving State. The Court observes in that regard that it has previously questioned the accessibility of care (see Aswat, cited above, § 55, and Tatar, cited above, §§ 47-49) and referred to the need to consider the cost of medication and treatment, the existence of a social and family network, and the distance to be travelled in order to have access to the required care (see Karagoz v. France (dec.), no. 47531/99, 15 November 2001; N. v. the United Kingdom, cited above, §§ 34-41, and the references cited therein; and E.O. v. Italy (dec.), cited above).

191. Where, after the relevant information has been examined, serious doubts persist regarding the impact of removal on the persons concerned – on account of the general situation in the receiving country and/or their individual situation – the returning State must obtain individual and sufficient assurances from the receiving State, as a precondition for removal, that appropriate treatment will be available and accessible to the persons concerned so that they do not find themselves in a situation contrary to Article 3 (on the subject of individual assurances, see Tarakhel, cited above, § 120).”

Clearly, whilst this judgment amended the test in N v UK the Upper Tribunal in EA (Afghanistan)¹⁴ (Article 3 medical cases – Paposhvili not applicable) and the Court of Appeal in AM (Zimbabwe)¹⁵ declined to apply it on the basis that they remained bound by the judgment of the House of Lords in N and that remained the position until AM (Zimbabwe) reached the Supreme Court. Happily, the case of EA has subsequently been allowed on Article 3 grounds on appeal to the FtT and upheld by the UT.

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