AM (Zimbabwe) v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Lady Black,Lord Kitchin,Lord Wilson,Lady Arden,Lady Hale |
Judgment Date | 29 April 2020 |
Neutral Citation | [2020] UKSC 17 |
Date | 29 April 2020 |
Court | Supreme Court |
[2020] UKSC 17
Lady Hale
Lord Wilson
Lady Black
Lady Arden
Lord Kitchin
Appellant
Zane Malik
Darryl Balroop
(Instructed by Shan & Co Solicitors)
Respondent
Lisa Giovannetti QC
Rory Dunlop QC
(Instructed by The Government Legal Department)
Intervener (The AIRE Centre)
Charles Banner QC
Yaaser Vanderman
(Instructed by Herbert Smith Freehills LLP)
Heard on 4 December 2019
( with whom Lady Hale, Lady Black, Lady Arden and Lord Kitchin agree)
This appeal requires the court again to consider one of the most controversial questions which the law of human rights can generate. It relates to the ability of the UK to deport a foreign citizen who, while lawfully resident here, has committed a string of serious crimes. The reaction of many British citizens is likely to be: “We don't want this man here”. His response is: “But I need to remain here”. In this case he no longer casts his response under article 8 of the European Convention on Human Rights (“the Convention”) by reference to respect for his private and family life. Instead he wishes to cast it under article 3 of the Convention which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
For the appellant is HIV positive. He is a citizen of Zimbabwe and his contention, which for reasons which I will explain has not yet been fully developed still less tested, is that, if deported to Zimbabwe, he would be unable to access the medication which, here in the UK, prevents his relapse into full-blown AIDS. So considerations of public policy on the one hand and of what is said to be private existential need on the other clash like warriors; and upon the courts lies a heavy burden in determining which should, under the law, prevail.
Reliance by the appellant on rights under article 3 has arisen at a late stage in these proceedings, which encompass a challenge on his part, so far entirely unsuccessful, to a decision by the Secretary of State to refuse to revoke an order for his deportation. At the first and second stages of them, namely in his successive appeals to the Immigration and Asylum Chamber of the First-tier Tribunal and then of the Upper Tribunal, the appellant relied only on rights under article 8. Before those tribunals he conceded that, in the light of the decision of the House of Lords in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] UKHL 31, [2005] 2 AC 296, his appeal could not succeed by reference to article 3.
But, before the appellant's further appeal to the Court of Appeal was heard, the Grand Chamber of the European Court of Human Rights (“the ECtHR”) delivered its judgment in Paposhvili v Belgium [2017] Imm AR 867. On advice, the appellant then formed the view that in that judgment the Grand Chamber had given an expanded interpretation of article 3 in the context of a situation such as his own; and so he decided to abandon his reliance on article 8 and to seek to obtain an order for a rehearing before one or other of the tribunals at which he could present a case under article 3. He recognised, however, that, even if, as a result of the judgment in the Paposhvili case, the decision of the House of Lords in the N case, cited in para 2 above, about the breadth of that article had become out of step with the jurisprudence of the ECtHR, that decision remained binding on the Court of Appeal: Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465. Accordingly he conceded before the Court of Appeal that, at that level, his appeal, newly formulated by reference to article 3, fell to be dismissed. On 30 January 2018 the Court of Appeal duly dismissed his appeal, together with another appeal against removal brought by a Jordanian citizen suffering from cancer: [2018] EWCA Civ 64, [2018] 1 WLR 2933. It is against its order that today the appellant appeals; and he asks us to do what he could not ask the Court of Appeal to do, namely to depart from the decision in the N case by reference to the judgment in the Paposhvili case and to remit his application for rehearing by reference to article 3.
In his judgment in the Court of Appeal, with which Patten and Hickinbottom LJJ agreed, Sales LJ, as he then was, not only explained why that court was required to dismiss the appeals. He also offered an interpretation of the effect of the judgment of the Grand Chamber in the Paposhvili case which the Secretary of State commends to us as correct but with which the appellant, supported by the AIRE Centre which intervenes in the appeal, strongly takes issue. It goes without saying that the interpretation offered by Sales LJ deserves considerable respect; inevitably, however, it also demands close scrutiny.
The appellant was born in Zimbabwe in 1987 and is now 33 years old. He lived there until 2000 when he came to the UK, where his mother was already living. He has lived here ever since. In 2004 he and his mother were granted indefinite leave to remain in the UK.
Early in 2005, when aged almost 18, the appellant sustained his first criminal conviction. It was for battery. During the next two years he sustained further convictions, including for assault, for receiving stolen goods and, twice, for possession of sharp blades in public places. In November 2006, soon after a son was born to the appellant and his partner (to whom he has since become married), the Secretary of State issued a decision to deport him. In January 2007 his appeal against the decision was dismissed so, in March 2007, the order for his deportation was made. He was detained pending deportation but in 2008 he was released on bail.
In May 2009 the appellant was convicted of further offences. The reason why he had not by then been deported is unclear. The further offences were very serious: they were for possession of a firearm and ammunition, for which he was sentenced to seven years, and for possession of heroin with intent to supply, for which he was sentenced to two years, to run consecutively.
In 2012, while he remained in prison, the appellant, by solicitors, applied to the Secretary of State to revoke the order for deportation made in March 2007 by reference to his rights under article 8 of the Convention. In due course he forwarded to the Secretary of State a letter about his medical condition. He contended that it was relevant to his right to respect for his private and family life. The letter had been written by a nurse in the sexual health clinic of a hospital. She said that he had been diagnosed as HIV positive in 2003; that the diagnosis had not given rise to concern until 2011, when his CD4 blood count had begun to fall; that in 2012 he had undertaken antiretroviral therapy (“ART”) but initially with a drug which had given rise to intolerable side-effects, later identified as vomiting, stomach cramps, dizziness and night sweats; that the clinic had then prescribed a different drug for him, namely Eviplera, which, during the year prior to the date of the letter, had not given rise to significant side-effects and which had enabled his CD4 blood count to increase and his HIV viral load to become undetectable; that his treatment and the monitoring of his condition needed to continue; that it was doubtful whether he could access ART in Zimbabwe, without which his CD4 blood count would fall again; and that in that event he would be prey to opportunistic infections which, if untreated, would lead to his death.
In 2013 the Secretary of State, by letter, announced her refusal to revoke the deportation order made against the appellant. She duly determined it by reference to his claim under article 8. But, having considered the evidence referable to his medical condition, including the letter from the nurse and a country information report that ART was in principle available in Zimbabwe, she observed in passing:
“It is not considered for the reasons given above that you have shown that your case meets the high threshold for article 3 to be engaged.”
Later in 2013 the appellant was released from prison on licence. Shortly afterwards, however, he was found guilty of bringing cannabis into the prison in the course of a visit. He was recalled to prison and ordered to serve an additional six months. He was therefore again in prison at the time of the hearing before Judge Cameron in the First-tier Tribunal late in 2014.
At that hearing the appellant was represented by counsel. She presented his case under article 8 by reference to a wide variety of factors, including his relationship with his wife and son and also his medical condition. In the latter respect counsel relied not only on the letter from the nurse but also on a more recent letter, dated 14 August 2014, from a consultant physician in the same clinic who had been treating him for four years. He reported that the treatment of the appellant with Eviplera was continuing satisfactorily. He added:
“However, there is no cure for HIV at present. It is vital for individuals on antiretroviral therapy to be maintained on lifelong HIV treatment. Should this gentleman stop his treatment or be denied access to his treatment, his HIV viral load will rise, his CD4 count will decrease and he will be at risk of developing opportunistic infections, opportunistic cancers and premature death. It is vital for individuals living with...
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