Article 3 in Health-Based Immigration Applications

The Home Office and Immigration Tribunals are public bodies. They therefore have a duty under s6(1) of the Human Rights Act 1998 not to act incompatibly with the European Convention on Human Rights. Article 3 of the ECHR creates an absolute prohibition on torture and inhuman or degrading treatment or punishment. Therefore, the Home Office and Immigration Tribunal cannot make decisions that will result in, or create a real risk of, an individual being subjected to torture or inhuman or degrading treatment or punishment. 

Article 3 applies to immigration cases where an individual’s removal from the UK places her at risk of Article 3 treatment in the receiving state. For example, if someone is going to be removed to a country where they will face inhuman and degrading treatment resulting from the ‘death row phenomenon’ (Soering v United Kingdom [1989] 11 EHRR/439) or they will not have access to essential medical treatment (D v United Kingdom (1997) 24 EHRR 423), they may be able to resist removal on the basis of Article 3.

This article is a guide to applications for leave to remain in the UK on medical grounds under Article 3.

Article 3 v Article 8

It is possible to apply for leave to remain in the UK on the basis of Article 3. The relevant application form is FLR(HRO) for leave to remain and SET(O) for indefinite leave to remain (having completed 10 years discretionary leave). Prospective applicants are warned that the threshold for Article 3 claims is very high. 

For many, Article 8 (the right to a private life, including moral and physical integrity) provides better protection. The Court of Appeal has previously taken pains to emphasise that “article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8” (SL (St Lucia) v SSHD [2018] EWCA Civ 1894). However, the same court also made clear that lack of healthcare in the receiving state may be a relevant “additional factor in the balance with other factors which themselves engage article 8.” The focus for engaging Article 8 is, broadly speaking, on the applicant’s quality of life (GS (India) and others v SSHD [2015] EWCA Civ 40) and “whether removal to the foreign country will have a sufficiently adverse effect upon the applicant” (R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27). From there, the Home Office and tribunals must strike a fair balance between the humanitarian considerations raised by Article 8 and the public interest in maintaining immigration control and public safety, which in Article 8 medical cases are as set out in the Home Office policy document:

This policy is designed to protect the National Health Service (NHS) and deter people from coming to the UK to seek free health care, so-called ‘health tourism’. Disparities exist between healthcare systems around the world and it would place an intolerable and unrealistic burden on the finite resources available in the NHS if the UK were expected to provide free and unlimited healthcare to all those without a legal right to stay. That is why those who do not qualify to remain under any other provisions of the Immigration Rules are normally expected to leave the UK even where this would be difficult due to a serious physical or mental illness.

The advantage of Article 3 is it is absolute. Considerations of public interest, like criminality and safeguarding of public funds, do not factor into the equation. The disadvantage is the high threshold.

The advantage of Article 8 is that the threshold of engagement is lower; although, “absence or inadequacy of medical treatment, even life-preserving treatment, in the country of return, cannot be relied upon at all as a factor engaging Article 8: if that is all there is, the claim must fail” (GS (India) and others v SSHD [2015] EWCA Civ 40). The disadvantage is that mere engagement of article 8 does not constitute a violation of an applicant’s rights. Public authorities are only required to act proportionately and can therefore justify interference with reference to countervailing public interest factors.

The Test in Article 3 Claims

The recent conclusion of AM (Zimbabwe) [2022] UKUT 131 (IAC) provides a good example of how Article 3 claims are considered and what the three-stage process involves.

In this case, the Appellant appealed against a deportation decision made by the Secretary of State for the Home Department. The Appellant suffered from AIDS. In the UK, this was controlled by anti-retroviral drugs and careful monitoring of his CD4 count. He had a history of drugs and firearms offences.

The Upper Tribunal applied the test developed through the Supreme Court case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 18 and the European Court of Human Rights cases of Paposhvili v Belgium [2016] ECHR 1113 and Savran v Denmark [2021] ECHR 1025.

Stage 1: Prima Facie Case

Stage 1 is the applicant raising a ‘prima facie’ case. A prima facie case is one which, if not challenged or countered, would establish an infringement of Article 3. This is done by showing that there is a “real risk” of treatment in the receiving country that results in a “serious, rapid and irreversible decline” in the applicant’s health “resulting in intense suffering” or a “significant reduction in life expectancy.”  In proving this risk, the applicant has proven that the risked treatment attains the “minimum of level of severity” required by Article 3.

This threshold test is itself split into two parts. The applicant must firstly show that they are a “seriously ill person”. Then, they must adduce evidence which is “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk…[i] on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, [ii] of being exposed [a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or [b] to a significant reduction in life expectancy.”

Stage 2: Dispelling Serious Doubts

Secondly, if a prima facie case is established, the burden switches to the Home Office to dispel “any serious doubts.” This is done by subjecting “the alleged risk to close scrutiny by considering the foreseeable consequences of removal for the individual concerned in the receiving State, in the light of the general situation there and the individual’s personal circumstances.” The returning state must verify whether care generally available in the receiving state is (a) sufficient and appropriate, and (b) the extent to which the applicant will actually have access to the treatment in question.

Stage 3: Individual and Sufficient Assurances

If serious doubts persist after this exercise, the returning state “must obtain individual and sufficient assurances from the receiving state as a precondition for removal, that appropriate treatment will be available and accessible.”

If this is unsuccessful or not done, the Article 3 claim will succeed.

How Practically to Raise a Prima Facie Case

Stage 1 of the Prima Facie Case

To meet the first stage, an applicant will need strong medical evidence to show that they are a seriously ill person. Other evidence may corroborate this fact, but cases are likely to hinge upon the medical evidence.

The case of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 111 (IAC) indicates that expert medical evidence will be carefully scrutinised. Both credibility of experts and clear reasoning to their conclusions are essential, and especially important in mental health cases (e.g., where the applicant argues that they are likely to take their own life if removed to the receiving country). The Upper Tribunal made the following general remarks:

157.   During his evidence, Dr Persaud made the important point that it is often a more straightforward task for a clinician to reach a diagnosis about a physical illness, such as diabetes, than it is in the case of a mental illness. This point has implications for the obligations of those giving expert evidence in respect of an individual’s mental state, whether past, present or predicted. In such cases, the Tribunal will be particularly reliant upon the witness fully complying with their obligations as an expert, as well as upon their adherence to the standards and principles of the expert’s professional regulator.
158.     Although the duties of an expert giving evidence about an individual’s mental health will be the same as those of an expert giving evidence about any other matter, the former must at all times be aware of the particular position they hold, in giving evidence about a condition which cannot be seen by the naked eye, X-rayed, scanned or measured in a test tube; and which therefore relies particularly heavily on the individual clinician’s opinion.

The Upper Tribunal held that “as a general matter, GP records are likely to be regarded by the Tribunal as directly relevant to the assessment of the individual’s mental health and should be engaged with by the expert in their report. Where the expert’s opinion differs from (or might appear, to a layperson, to differ from) the GP records, the expert will be expected to say so in the report, as part of their obligations as an expert witness. The Tribunal is unlikely to be satisfied by a report which merely attempts to brush aside the GP records.”

As well as instructing medical experts, applicants should provide, where possible, corroborating medical evidence like GP records. All expert reports should be clearly reasoned.

The Home Office policy document indicates that evidence of the medical condition, treatment for the condition, the likely suitability of alternate treatment for the medical condition and the effect that inability to obtain effective treatment would have on their health should all be provided. 

Stage 2 of a Prima Facie Case

Meeting stage 2 will require robust country expert evidence. It is important to recall that the test is not whether you will be able to receive the same quality of treatment in the receiving country as in the UK. The Home Office guidance states as follows:

There is no requirement to show that the claimant will receive equivalent treatment to that which they are receiving in the UK and that which is likely to be available and accessible in their country of return. Instead the relevant consideration is whether, despite the treatment that is available and accessible in the receiving country, the claimant is likely to suffer either a serious, rapid and irreversible decline in their state of health resulting in intense suffering or a substantial reduction in their life expectancy.

It is important for applicants to address costs, location of treatment and physical obstacles needing to be overcome in the country of return in order to obtain relevant medical treatment, and also what support is available from friends and family.

The Upper Tribunal made useful remarks about which kinds of evidence it most values for this part of the test in AM (Zimbabwe):

Whilst this Tribunal is more used to having before it, experts who are academics in their field, the sort of expert evidence which is likely to be more useful to it in “health cases” is from clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, and evidence of expertise at a reasonably contemporary date. 

As these cases have such a high threshold and turn on the evidence, selecting appropriate experts at the outset is key to maximising an applicant’s chances. Experts should comment on the availability and affordability of treatment.

Relativity

Case law indicates that ‘severity’ of treatment is relative. For example, if an applicant is a child, this is likely to be a relevant consideration when establishing if suffering is sufficiently intense. In the context of determining whether a reduction in life expectancy is ‘significant’, Lord Wilson showed how age can be another relevant consideration:

Take a person aged 74, with an expectancy of life normal for that age. Were that person’s expectancy be reduced to, say, two years, the reduction might well – in this context – not be significant. But compare that person with one aged 24 with an expectancy of life normal for that age. Were his or her expectancy to be reduced to two years, the reduction might well be significant (AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 18)

Medical and country experts would be advised to consider all relevant personal factors of the applicant, including age, sex and social/cultural factors that could affect their ability to access treatment in the receiving country.

Rights of appeal

In the event of a refusal, applicants will have a right of appeal under s82(1)(b) of the Nationality, Immigration and Asylum Act 2002 because it is a human rights claim. The exception is where the Secretary of State certifies the claim under s94(1) of the same act on the basis that it is “clearly unfounded”. This means a manifestly unfounded claim which is “so clearly without substance that the appeal would be bound to fail.” (Thangarasa and Yogathas [2002] UKHL 36)

Contact our Immigration Barristers

Article 3 claims are notoriously difficult. For expert advice and assistance with applications and appeals on the basis of Article 3 ECHR, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.