MM (Malawi) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom |
| Judgment Date | 12 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1365 |
| Date | 12 June 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2017/2946 |
[2018] EWCA Civ 1365
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT
Appeal Nos IA/32788/2015 & IA/32789/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
Case No: C5/2017/2946
The Queen on the Application of
David Chirico and Keelin McCarthy (instructed by Elder Rahimi Solicitors) for the Applicants
Lisa Giovannetti QC and Rory Dunlop (instructed by Government Legal Department) for the Respondent
Hearing date: 12 June 2018
The Applicants are nationals of Malawi. The First Applicant entered the United Kingdom on 10 October 2004 on a student visa. The Second Applicant entered on the same day on a visitor visa. They married whilst lawfully in the United Kingdom.
In 2010, the First Applicant felt very unwell, and, as well as being diagnosed with having a number of both physical and psychiatric conditions, she was discovered to be HIV positive. From May 2010, she was treated with antiretroviral (“ARV”) drugs. She initially had considerable side effects, and her therapy was varied until her HIV infection was satisfactorily controlled with a combination of two drugs, Kaletra liquid and Truvada dispersible tablets. The First Applicant has to take these drugs in liquid form because, as a result of an oesophageal stricture, she is unable to swallow solids. The drug treatment is chronic.
The Applicants remained in the UK with valid leave until April 2011, when the Second Applicant's application for leave to remain as a student was refused, the First Applicant by that stage being his dependent.
On 1 February 2012, the Applicants applied for leave to remain on human rights grounds. That was refused, and that refusal was maintained on an internal reconsideration on 30 September 2015. That decision had an in-country right of appeal to the First-tier Tribunal which was exercised.
In a determination promulgated on 18 May 2017, First-tier Tribunal Judge Walters allowed the appeal on several grounds, including the First Applicant's appeal on article 3 medical grounds. The Secretary of State appealed, and in a determination promulgated on 11 August 2017, Deputy Upper Tribunal Judge Woodcraft allowed the appeal from the First-tier Tribunal, and remade the decision dismissing the appeal from the Secretary of State's refusal on all grounds. He concluded that the UK would not breach its obligation under article 3 by removing the First Applicant to Malawi.
By the time of the Deputy Judge's determination, the Grand Chamber of the European Court of Human Rights had handed down judgment in Paposhvili v Belgium [2017] Imm AR 867. Until that case, the test in article 3 medical cases was that expounded in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death. The effect of Paposhvili upon existing jurisprudence was considered by this court in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64. Sales LJ, with whom Patten LJ and I agreed, said this (at [38]):
“So far as the [European Court of Human Rights] and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where ‘substantial grounds have been shown for believing that [the applicant], 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 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’ (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”
It was considered that this represented a “very modest extension” of the article 3 protection in medical cases; but extension it was. However, of course, Paposhvili did not affect domestic jurisprudence in the sense that, until it was changed, N was binding here on all courts below the Supreme Court.
In addition, in Paposhvili, the European Court emphasised that, once there are serious doubts about whether the individual if removed might suffer treatment that breached the article 3 threshold, the onus of proof falls upon the state, and the state has a procedural duty to conduct enquiries and/or obtain specific assurances to ensure that there is no risk of such treatment on return.
In redetermining the Applicant's appeal, Deputy Judge Woodcraft applied the criteria in N, which he was bound to do; although he in fact appears to have equated the test in Paposhvili with that in N. He also said this (at [33]):
“It is still unclear what the position is regarding the availability of treatment in Malawi. The [First Applicant] has put forward evidence to suggest that liquid form treatment is not available but clearly some treatment is available. Given the paucity of evidence before the judge, it was in my view a material error of law for the judge to find as he did that to return the [First Applicant] to her country of origin would be to breach her rights under article 3. In my view no such breach of this country's obligations will occur.”
The Applicant applied to this court for permission to appeal. In particular, it was said that, given the inconclusive nature of the evidence, the Deputy Judge erred in placing the burden of proof where he did; but also that this case would meet the Paposhvili criteria.
On 9 February 2018, I gave directions for the parties to make submissions on whether the...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-11-18, [2019] UKUT 397 (IAC) (AXB (Art 3 health: obligations; suicide))
...arguably vitiated the judge’s Article 3 assessment. It appears that apart from the concession by the respondent in R (MM (Malawi)) [2018] EWCA Civ 1365, UK courts and tribunals have not addressed the UK’s procedural obligation under Article 3 as identified in Paposhvili. For this reason, it......