The Secretary of State for the Home Department v PF (Nigeria)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Hickinbottom,Lord Justice Holroyde,Lord Justice Floyd
Judgment Date04 Jul 2019
Neutral Citation[2019] EWCA Civ 1139
Docket NumberCase No: C5/2018/2529

[2019] EWCA Civ 1139

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE LINDSLEY

Appeal No DA/00449/2013

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Floyd

Lord Justice Hickinbottom

and

Lord Justice Holroyde

Case No: C5/2018/2529

Between:
The Secretary of State for the Home Department
Appellant
and
PF (Nigeria)
Respondent

Rory Dunlop QC and Jack Anderson (instructed by Government Legal Department) for the Appellant

Abid Mahmood and Miran Uddin (instructed by AM International Solicitors) for the Respondent

Hearing date: 25 June 2019

Further written submissions: 26 and 27 June 2019

Approved Judgment

Lord Justice Hickinbottom

Introduction

1

Sickle cell disease (“SCD”) is a genetic blood disorder resulting from an abnormality in the haemoglobin element in red blood cells, which is prevalent in Africa. Nigeria has the highest burden of SCD in the world: in Nigeria, about 1m people suffer from SCD, with 150,000 births per year of babies suffering from the condition. In addition to longer term medical problems which result in a reduced life expectancy, it typically results in infections and attacks of pain known as “sickle cell crises”, for which pain relief and antibiotics (both prophylactic and ameliorative) are given. It is a terrible disease; and one can only have sympathy for those who suffer from it.

2

The Respondent is a Nigerian citizen who has suffered from SCD from birth. He was born and brought up in Nigeria; but came to the United Kingdom in August 1990 when he was 13 years old. He was granted indefinite leave to remain in 2000.

3

He has a lengthy criminal record, including several convictions for drug offences for which he has received substantial prison sentences, the longest being 5 years 8 months' imprisonment imposed for two conspiracies to supply Class A drugs in 2010.

4

In 2013, the Secretary of State made an order for the Respondent's deportation, which the Respondent contested on the ground that his removal would be in contravention of article 8 of the European Convention on Human Rights (“ECHR”). At that time, he was 36 years old and had been in the United Kingdom for 23 years. He had a British partner, and two children who are British citizens. He was also undergoing chronic treatment for his SCD.

5

His appeal was refused by the First-tier Tribunal (Immigration and Asylum Chamber) (“the FtT”); but that decision was set aside by the Upper Tribunal (Immigration and Asylum Chamber) (“the UT”) and remade by Upper Tribunal Judge Lindsley in a determination promulgated on 21 May 2018. Judge Lindsley allowed the appeal on the basis that the Respondent's removal would be in breach of both article 3 and article 8 of the ECHR.

6

With permission I granted on 13 December 2018, the Secretary of State now appeals against that determination.

7

Before us, Rory Dunlop QC and Jack Anderson appeared for the Appellant Secretary of State, and Abid Mahmood and Miran Uddin for the Respondent. At the outset, I thank them for their helpful submissions.

The Law

8

By section 3(5)(a) of the Immigration Act 1971, a person who is not a British citizen is liable to deportation if the Secretary of State deems his deportation to be conducive to the public good; and, by section 5(1), in respect of a person liable to deportation, the Secretary of State may make a deportation order requiring him to leave and prohibiting him from re-entering the United Kingdom.

9

The exercise of those powers is governed by sections 32 and 33 of the UK Borders Act 2007 (“the 2007 Act”), which identify circumstances in which the Secretary of State is required to deport a foreign criminal. So far as relevant to this appeal, they provide as follows:

32. Automatic deportation

(1) In this section “foreign criminal” means a person—

(a) who is not a British citizen,

(b) who is convicted in the United Kingdom of an offence, and

(c) to whom Condition 1 or 2 applies.

(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3) …

(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6) …

33. Exceptions

(1) Section 32(4) and (5)—

(a) do not apply where an exception in this section applies…

(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person's Convention rights

(b) United Kingdom's obligations under the Refugee Convention.

(7) The application of an exception—

(a) does not prevent the making of a deportation order;

(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4.”.

The definition of “foreign criminal” in section 32(1) has been maintained throughout various statutory and rule changes (see, e.g., section 117D of the 2002 Act).

10

For the purposes of section 33(2)(a), by section 38(4)(b), “Convention rights” has the same meaning as in the ECHR. Two such rights are in play in this appeal, namely those found in articles 3 and 8.

11

Article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

12

It is well-established that article 3 may be engaged where removal from the United Kingdom is contemplated in circumstances in which an absence of, or lack of access to, medical treatment in the receiving state will result in a decline in health of the foreign national it is proposed to return.

13

It is equally uncontroversial that article 3 may only prevent removal of a foreign national from the United Kingdom in “very exceptional circumstances”. The scope of that phrase in this context was settled so far as domestic law is concerned by the House of Lords in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296 (“ N”). At [50], Lord Hope giving the leading speech set out the test in these circumstances, as derived from the Strasbourg authorities, as follows:

“…. For the circumstances to be … ‘very exceptional’ it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying…”.

Baroness Hale of Richmond (at [69]–[70]) and Lord Brown of Eaton-under-Heywood (at [94]) framed the test in similar terms. The test was endorsed by the Grand Chamber of the European Court of Human Rights (“ECtHR”) in N v United Kingdom (2008) 47 EHRR 39 (“ N (ECtHR)”). This so-called “death bed test” was considered to be an appropriate balance between the rights of the individual and the interests of the Contracting States, upon which article 3 places no obligation to alleviate disparities in state provision through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction (see, e.g., N (ECtHR) at [44]).

14

However, the ECtHR has recently revisited where this balance should lie, i.e. what should comprise “very exceptional circumstances” in this context. In Paposhvili v Belgium [2017] Imm AR 867 (“ Paposhvili”) at [183], the court said:

“The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in [ N]… 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…”.

That is clearly in different terms from those in N. At least to an extent, it appears to widen the scope of “very exceptional circumstances”.

15

The consequences of Paposhvili for medical cases in which there is reliance on article 3 have been considered by this court in three subsequent cases: AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64; [2018] 1 WLR 2933 (“ AM (Zimbabwe)”), SL (St Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894 (“ SL (St Lucia)”) and MM (Malawi) and MK (Malawi) v Secretary of State for the Home Department [2018] EWCA Civ 2482 (“( MM Malawi)”). The relevant principles were set out in the judgment of Sales LJ (as he then was) in AM (Zimbabwe), with which Patten LJ and I agreed. Those principles were endorsed in the other two cases.

16

The following propositions, relevant to the appeal before us, can be drawn from the cases.

i) Despite the guidance given in Paposhvili, as a result of the principle of stare decisis (i.e. the usual rules of precedent in this jurisdiction), the test in N remains binding on this court, and indeed all tribunals and courts in this jurisdiction, subject only to the Supreme Court using its power to overrule it (see AM (Zimbabwe) at [30], MM (Malawi) at [9(i)] and the aptly entitled UT judgment in EA and Others (article 3 medical cases – Paposhvili not applicable) [2017] UKUT 445 (IAC)).

ii) Paposhvili at [183] relaxes the test for violation of article 3 in the case of removal of a foreign national with a medical condition (see AM (Zimbabwe) at [37]–[38], and MM (Malawi) at [9(i)]). Having quoted the relevant part of [183] of Paposhvili, Sales...

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