AM (Zimbabwe) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Patten,Lord Justice Sales |
| Judgment Date | 30 January 2018 |
| Neutral Citation | [2018] EWCA Civ 64 |
| Docket Number | Case No: C5/2016/4178 & C5/2016/4677 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 2018 |
[2018] EWCA Civ 64
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA/01209/2013 & IA/00803/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Sales
and
Lord Justice Hickinbottom
Case No: C5/2016/4178 & C5/2016/4677
Zane Malik and Darryl Balroop (instructed by Shan and Co Solicitors) for the First Appellant
Edward Nicholson (instructed by Elder Rahimi Solicitors) for the Second Appellant
Lisa Giovanetti QC and Rory Dunlop (instructed by Government Legal Department) for the Respondent
Hearing date: 16 January 2018
Judgment Approved
This is the judgment in two appeals which are concerned with the question of the operation of Article 3 of the European Convention on Human Rights, applied as a Convention right in domestic law under the Human Rights Act 1998, in relation to removal of foreign nationals from the UK where they are suffering from serious illnesses. The position in domestic law was authoritatively settled in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296. The approach laid down by the House of Lords in that case was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39. However, a question arises whether the test for application of Article 3 in this context should now be adjusted in light of the further Grand Chamber judgment in Paposhvili v Belgium, judgment of 13 December 2016; [2017] Imm AR 867.
The First-tier Tribunal (“FTT”) in each case before us found the relevant facts, as set out below. Although respective counsel for each appellant sought to go behind the findings made and invited us to consider some of the underlying evidence, there was no proper basis for them to do so. The grounds of appeal for which they had been granted permission to appeal did not include any challenge to the findings of fact made below in each case, being limited to the issue of the proper application of Article 3 in relation to the facts as found by the FTT. In any event, the underlying materials to which we were taken indicated that the FTT in each case was entitled to make the findings which it did.
The facts in AM's case
The appellant AM is a national of Zimbabwe, born in 1987. He came to the UK as a teenager in 2000 to join his mother. He was granted indefinite leave to remain in 2004. In 2006 he was convicted of a number of criminal offences, being sentenced to a total of 12 months imprisonment. In 2009 he was convicted of offences relating to possession of a firearm and supply of heroin and was sentenced to 9 years imprisonment (2 years for possession of a firearm and 7 years for supplying a class A drug). The Secretary of State wishes to deport him. The issue which arises, so far as is relevant before us, is whether to return AM to Zimbabwe would violate his right under Article 3 not to be subjected to inhuman treatment, by reason of his medical condition.
AM is HIV positive. His condition is controlled by an anti-retroviral (“ARV”) treatment he receives in the UK involving medication called Eviplera, and has been since 2012. He was placed on Eviplera after first having tried another ARV drug which produced significant side-effects. We were not told what these side-effects were.
As the FTT found, if AM is returned to Zimbabwe a range of ARV drugs would be available to him for treatment of his condition, but they would not include Eviplera. None of the medical reports provided in evidence by AM indicated that he would not be able to tolerate any of the other treatments available to him in Zimbabwe.
At the hearing before the FTT, counsel then appearing for AM (who was different from his present counsel) said that she was not relying on Article 3, but instead relied on AM's medical condition and the limits on treatment available for him in Zimbabwe in the context of a claim based on Article 8 of the Convention which he was also seeking to maintain at that stage. This approach was probably adopted because of the strict approach to claims under Article 3 relying on medical conditions set out in N v Secretary of State for the Home Department and N v United Kingdom and because the hearing pre-dated the decision of this court in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312, which brought the test under Article 3 and the approach under Article 8 into close alignment. Be that as it may, the FTT nonetheless addressed Article 3, to avoid any doubt on the point, holding that Article 3 did not prevent the deportation of AM and saying that it was not satisfied that AM was at a critical stage of his illness nor that treatment for his condition would not be available for him in Zimbabwe if he were returned there, even though the specific ARV drug he was then taking (Eviplera) would not be available: [101]–[102]. The FTT also dismissed AM's claim based on Article 8 at [103]ff, in the course of which discussion it made further and more detailed findings in respect of his medical condition and the ARV treatments available in Zimbabwe: [173]–[183].
The Upper Tribunal dismissed AM's appeal, holding that the FTT had properly considered the medical evidence and that there was nothing in it to indicate that Eviplera was the only possible ARV drug which AM could take. At [39] the Upper Tribunal observed that the burden of proof was on the appellant and that it had been incumbent on him to show that he would be at risk of a significant deterioration in his health and possible death in Zimbabwe if he could not take Eviplera but could only take the other ARV treatments which were available in Zimbabwe; and the FTT had not engaged in improper speculation, but in light of the burden of proof and the evidence before it had come to a conclusion which was properly open to it.
Despite the way in which AM's case was presented below, in reliance on Article 8 rather than Article 3, it is common ground that it is open to him on this appeal to rely now on Article 3, as he seeks to do.
The facts in Mr Nowar's case
Mr Nowar is a national of Jordan, born in 1986. In early 2012, when he was in Jordan, he was diagnosed with cancer, a primary mediastinal large B-cell lymphoma, for which he was treated at the King Hussein Cancer Centre (“KHCC”) in that country. He was successfully treated at the KHCC, by a course of radiotherapy and chemotherapy. As the FTT found, this was successful and the disease was found to be in remission and he was given “the all-clear”.
At that point, late in 2012, Mr Nowar applied for entry clearance to come to the UK as a student, which was granted. He came to the UK in November 2012. Unfortunately, in April 2013, while he was in the UK, it was found that he had suffered a relapse and that his cancer was active again. In December 2013 he was given an advanced form of therapy here, involving an autologous stem cell transplant. This again was successful, and he was found to be in full remission with no symptoms. Understandably, however, he remains concerned that he might suffer another relapse at some point in the future. If that did happen, he does not believe that he would receive as good treatment in Jordan as he would if he remains in the UK. In particular, he maintains that the effective treatment he received in the UK involving autologous stem cell transplantation is not available in Jordan. At the time of the hearing before the FTT he had received a further medical report dated 3 July 2015 which stated that a CT scan identified that he had a 7mm nodule which required investigation.
In February 2014 Mr Nowar applied for leave to remain under Article 8, relying in particular on his medical condition and wish to be able to receive treatment in the UK, should he suffer a relapse. By a decision letter dated 9 December 2014, the Secretary of State refused his application. According to a PubMed article from August 2008, the KHCC had been performing the same form of stem cell transplantation since 2003. Further, the KHCC had previously treated his cancer successfully and the Secretary of State had no reason to believe that it could not continue to treat him should the cancer come back. She concluded that suitable medical treatment would be available in Jordan.
Mr Nowar appealed to the FTT, relying at this stage on his rights under Article 3 as well as under Article 8. The FTT referred to relevant authority then in place, including in particular N v Secretary of State for the Home Department and N v United Kingdom, and held that his claim under Article 3 failed. His claim under Article 8 was also dismissed. The FTT judge said this at [39]:
“Part of this appellant's case is of course (paragraphs 3, 4, 5 and 6 of the witness statement) to seek to draw a distinction between the treatment he received in Jordan at KHCC and the treatment he has received in the UK. He argues that at least one of the UK medical reports supports a contention that the treatment and quality of drugs in Jordan was “sub-optimal” and that in any event the experimental treatment which he underwent at King's College Hospital was a last chance. He submits that that regime would not be available in Jordan and it is the only one that finally worked. In particular at paragraph 5 he analyses the prognostic tool used by KHCC, which showed him to be a low risk of falling out of remission, and urged me to find that that IPI index was not relevant for his type of lymphoma and that he has been diagnosed with CD 30 positive (general evidence folder page 8) which, according to a PubMed article published in 2015, shows a poor outcome of the first...
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