EA and Others (Article 3 Medical Cases — Paposhvili Not Applicable)
| Jurisdiction | UK Non-devolved |
| Judge | Jordan,Pitt,Pitt UTJ,Jordan UTJ |
| Judgment Date | 09 August 2017 |
| Neutral Citation | [2017] UKUT 445 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 August 2017 |
[2017] UKUT 445 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Jordan
UPPER TRIBUNAL JUDGE Pitt
For EA: Ms R Chapman, instructed by Wilson Solicitors LLP
For MO: Miss C Fletcher, instructed by Immigration Advice Service
For Ashrifin and Rashid: Mr Z Malik, instructed by SG Law
For the Secretary of State: Mr W Hansen instructed by GLD
EA & Ors (Article 3 medical cases — Paposhvili not applicable)
The test in Paposhvili v Belgium , 13 December 2016, ECtHR (Application No 41738/10)is not a test that it is open to the Tribunal to apply by reason of its being contrary to judicial precedent.
(i) EA (whom we refer to as an appellant although the appeal to the Upper Tribunal is brought by the Secretary of State) is a citizen of Afghanistan who was born on 1 January 1993. Differing opinions have been provided as to his mental illness, one describing it as a schizoaffective disorder and a mixed personality disorder; another, that it is paranoid schizophrenia. The difference is immaterial for our purposes. He is under a regime of anti-psychotic medication. It is a chronic ailment of a relapsing and remitting nature. He is currently housed in a secure accommodation under the MHA and has been since 2012.
(ii) MO (whom we also refer to as an appellant although there are cross-appeals) is a citizen of Nigeria who suffers from HIV/AIDS. He has been receiving medical treatment in the form of a drug, Stribild, which appears to have been most effective at relieving his symptoms. His wife has also been diagnosed as HIV-positive and receives treatment. Neither has a right to remain under the Immigration Rules.
(iii) Mrs Ashrifin and her husband, Mr Rashid, are citizens of Bangladesh. Mrs Ashrifin's appeal was dismissed for what was said to be her failure to provide specified documents to meet the requirements to establish her proficiency in English in accordance with paragraph 10 of Appendix B of the Immigration Rules. In addition Mr Rashid suffers from ankylosing spondylitis, a long-term, chronic condition in which the spine and other areas of the body become inflamed causing back pain and stiffness and pain and swelling in other parts of the body caused by inflammation of the joints or where a tendon joins the bone. It can cause extreme tiredness and fatigue. He is receiving treatment for it in the form of medication, brand-named Humira, an anti-inflammatory medication. Etanercept is available in Bangladesh but was not said to be effective.
There is no suggestion that the conditions of these appellants (or their dependants) has reached the stage where any of them are dying. Indeed with treatment provided by the NHS, their condition could not reasonably be bettered.
In each case, the appellants sought leave to remain on the basis that their removal would violate their rights under Article 3 of the ECtHR. It is sometimes as well to remind ourselves of the scope of Article 3:
No one shall be subjected to torture or inhuman or degrading treatment or punishment.
Shorn away from those elements that it has now become almost redundant to make out, such as torture or punishment (both of which suggest an intentional infliction of suffering), we are almost invariably focussed on that protean concept of inhuman or degrading treatment. The enquiry moves from the motivation of the actor behind the suffering to the effect of the relevant circumstances upon the individual.
That said, there is nothing untoward in seeing the progressive decisions of the United Kingdom Courts and the ECtHR as extending the ambit of the Convention which has been described by Lord Hope as a ‘living instrument’, (paragraph 21, N v SSHD [2005] 2 AC 296).
The claims before us centred upon a violation of their Article 3 rights. The centrepiece of their arguments was directed towards the effect of the Strasbourg decision in Paposhvili v Belgium, 13 December 2016, ECtHR (Application No 41738/10) and the seminal restatement of Article 3 set out in paragraph 183 of the Grand Chamber of ECtHR's judgment:
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. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.
At this stage we are not concerned with whether the three appellants' claims have established that they are seriously ill or whether they face a real risk of a serious, rapid and irreversible decline in their health resulting in intense suffering or a reduction in their life expectancy. In the cases of these three appellants, there is a significant range in the seriousness of their conditions.
The Tribunal required the application of the Paposhvili test to be decided as a preliminary issue because it is only by determining the correct approach to be adopted by the Tribunal to the decision in Paposhvili that the Tribunal might assess how the three appeals might proceed.
Lord Neuberger giving the judgment of the Court in Manchester City Council v Pinnock [2011] UKSC 6 stated in paragraph 47 that decisions of the House of Lords and the Supreme Court have to be seen against the ‘ backdrop’ of the evolving Strasbourg jurisprudence. He continued in paragraph 48:
This Court is not bound to follow every decision of the ECtHR. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the Court to engage in the constructive dialogue with the ECtHR which is of value to the development of Convention law (see e g R v Horncastle [2009] UKSC 14; [2010] 2 WLR 47). Of course, we should usually follow a clear and constant line of decisions by the ECtHR: R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323. But we are not actually bound to do so or (in theory, at least) to follow a decision of the Grand Chamber. As Lord Mance pointed out in Doherty v Birmingham [2009] 1 AC 367, para 126, section 2 of the HRA requires our courts to “take into account” ECtHR decisions, not necessarily to follow them. Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this Court not to follow that line.
From this passage it emerges that
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(i) The Supreme Court is not bound to follow a decision of the ECtHR.
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(ii) The decisions of the ECtHR are of persuasive effect because they come from an authoritative source and from a Court whose rulings are acknowledged by statute. Indeed, s. 2(1) of the Human Rights Act 1998 expressly provides that a court or tribunal determining a question which has arisen in connection with a Convention right ‘ must take into account’ a judgment or decision of the ECtHR. The obligation is absolute, ‘ must’, but the nature of the obligation is to take it ‘ into account’, not necessarily to apply it.
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(iii) However, a different approach is called for on the part of the Supreme Court when there has been a clear and constant line of authority but only if it is consistent with United Kingdom law (or at least some ‘ fundamental substantive or procedural aspect’ of it) or the decision of the ECtHR is not flawed in a material way.
It is, therefore, a somewhat limited duty to comply with the ECtHR at least on the part of the Supreme Court. It suggests that the ECtHR must be followed (‘ would be wrong not to follow’) but only if it is consistent with United Kingdom law. It raises the question of whether there is the need to follow the ECtHR, if the principle is already enshrined in the United Kingdom's domestic law.
The ECtHR's own statements as to its role speak of a subsidiary one, at least when it comes to implementation. For example, in paragraph 184 of Paposhvili we find:
As to whether the above conditions are satisfied in a given situation, the Court observes that in cases involving the expulsion of aliens, the Court does not itself examine the applications for international protection or verify how States control the entry, residence and expulsion of aliens. By virtue of Article 1 of the Convention the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on the national authorities, who are thus required to examine the applicants' fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3. The machinery of complaint to the Court is subsidiary to national systems safeguarding human rights.
Whilst the statements of principle set out in Manchester City Council v Pinnock are directed towards the Supreme Court's own approach to decisions of the ECtHR, they shed light on how the Tribunal is to approach such decisions. They say, nothing,...
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