AM (Art 3; Health Cases) Zimbabwe

The Claimant, a citizen of Zimbabwe, came to the United Kingdom in December 2000 as a teenager and the dependant of his mother. He was granted indefinite leave to remain in 2004. He had a long criminal history dating back to 2004. In 2009, he was convicted of drugs and firearms offences and sentenced to nine years in prison. Even when released on licence, he committed a further offence and was recalled to prison. After his sentence had ended, he once again committed offences involving drugs. His latest conviction was in October 2021 for offences committed in 2019. He was diagnosed as HIV positive in either 2003 or 2005. His condition was controlled by medication in the form of anti-retroviral drugs (‘ARV’). His condition was also monitored, and he was tested in order to ensure that his anti-viral load remained low and his CD4 count remained high. He was married to N with whom he had a child born in 2006. He also had three other children, born in 2014, 2018 and 2019, with two other women.

In June 2013, the Secretary of State for the Home Department made a deportation order against the Claimant. He appealed that decision on the ground that deportation would be a disproportionate interference with his right to respect for his family and private life pursuant to Article 8ECHR. He relied primarily on his medical condition. The First-tier Tribunal (‘FtT’) dismissed the appeal on human rights grounds. In November 2014, the Upper Tribunal (‘UT’) maintained the FtT's decision. Before the Court of Appeal, the Claimant shifted the focus of his case and asserted that his deportation to Zimbabwe would lead to a real risk of torture or inhuman and degrading treatment contrary to Article 3ECHR. Bound by the judgment in N v Secretary of State for the Home Department[2005] UKHL 31, the Court of Appeal dismissed the appeal in January 2018. In April 2020, the Supreme Court reversed the Court of Appeal's decision and gave guidance on the approach to ‘health cases’ in domestic law following the judgment of the Grand Chamber of the ECtHR in Paposhvili v Belgium2016 ECHR 41738/10. The Claimant's appeal was allowed and remitted for re-hearing before the UT.

The sole issue before the UT was whether the Claimant's deportation to Zimbabwe breached Article 3ECHR. Both the Claimant and his wife, N, provided witness statements and gave oral evidence at the hearing. The UT considered expert evidence in the form of written reports and oral evidence from the consultant physician who was currently treating the Claimant. The consultant provided opinions on his history so far as within her knowledge, his current medication and treatment and the likely effects of any change in medication and treatment. The UT also considered evidence of two experts regarding the treatment of HIV patients in Zimbabwe including the accessibility of ARV and monitoring and testing of such patients.

Held, dismissing the appeal:

(1) In Article 3 health cases two questions in relation to the initial threshold test emerged from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department[2020] UKSC 17 and Savran v Denmark2022 ECHR 57467/15. First, had the applicant discharged the burden of establishing that he or she was a seriously ill person? That was a relatively straightforward issue and would generally require clear and cogent medical evidence from treating physicians in the United Kingdom. Secondly, had the applicant adduced evidence ‘capable of demonstrating’ that ‘substantial grounds [had] been shown for believing’ that as ‘a seriously ill person’, he or she ‘would face a real risk’ (i) ‘on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, (ii) of being exposed (a) to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or (b) to a significant reduction in life expectancy’? The second question was multi-layered. In relation to (2)(ii)(a), it was insufficient for the applicant merely to establish that his or her condition would worsen upon removal or that there would be serious and detrimental effects. What was required was ‘intense suffering’. It was for the applicant to adduce evidence capable of demonstrating substantial grounds for believing that he or she would be exposed to a real risk of (a) a decline in health resulting in intense suffering or (b) significant reduction in life expectancy. The nature and extent of the evidence that was necessary would depend on the particular facts of the case. Generally speaking, whilst medical experts based in the United Kingdom might be able to assist in that assessment, many cases were likely to turn on the availability of and access to treatment in the receiving state. Such evidence was more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, were likely to be particularly helpful. A certain degree of speculation was inherent in the preventive purpose of Article 3. It was not a matter of requiring the persons concerned to provide clear proof of their claim that they would be exposed to proscribed treatment: Paposhvili applied. It was only after the threshold test had been met and thus Article 3 was applicable, that the returning state's obligations became of relevance: Savran applied (paras 16 – 29).

(2) The Secretary of State conceded that the Claimant was a seriously ill person, even though his condition was currently well controlled. There was appropriate and accessible/affordable treatment in Zimbabwe. Although the medication the Claimant was currently taking was not available, alternative medication was available and had a ‘high probability of working well’ according to his consultant physician. The Claimant gave evidence that he would take his tablets, recognising their importance, unless his body had an adverse reaction to them. He did not suggest that the side effects which he might experience following a change of medication were so extreme that they would meet the relevant threshold. The main side-effects said to arise from the ARV proposed and available in Zimbabwe would not lead the Claimant to cease taking the medication given the more serious consequences which would arise from his condition without the medication. The availability of testing in Zimbabwe after switching medication would be less frequent than that currently offered by the Claimant's consultant. It was not necessary to consider the difference in treatment based on a benchmark of what was available in the United Kingdom but what was necessary to control the Claimant's illness. In that regard, the Claimant's condition had been controlled notwithstanding his failure to attend appointments for testing as regularly as recommended by his consultant. If the Claimant needed to obtain more tests in the private sector, the evidence indicated that he could generate his own income in Zimbabwe and would be able to turn to financial support from N and other family members (paras 122 – 129).

(3) Treatment to avoid a breach of Article 3ECHR was available and accessible in Zimbabwe. Assuming a certain degree of speculation was inherent in the preventative purpose of Article 3 and that a person was not required to provide clear proof of his claim that he would be exposed to proscribed treatment, the Claimant had not shown substantial grounds for believing that he would face a real risk of a serious, rapid and irreversible decline in his state of health resulting in intense suffering or a significant reduction in life expectancy. On the evidence available the Claimant would have access to a suitable alternative ARV and the other associated treatment required, namely adequate monitoring and testing, in order to obviate a real risk of a serious, rapid and irreversible decline in his state of health resulting in intense suffering. If he ceased to take medication because he was suffering from adverse side-effects, he would be able to access alternatives via the public sector in Zimbabwe. If he ceased to be adherent to treatment for other reasons, that would be his choice. Any impact from that failure to adhere to treatment would not be ‘on account of or for reasons relating to the absence or inaccessibility of treatment but his own refusal to adhere to it. There would therefore be an absence of a causal link and no substantial grounds for believing that there was a real risk of a breach of the Claimant's Article 3 rights occasioned by his removal to Zimbabwe (paras 130 – 134).