No expansion of Article 3 test in medical cases

On 30 January 2015, the Court of Appeal handed down judgment in the case of GS (India) and others v The Secretary of State for the Home Department [2015] EWCA Civ 40. Six appellants appealed against decisions of the Upper Tribunal dismissing their appeals against the Secretary of State’s decision to remove them from the UK, arguing that it would amount to a breach of their rights under Articles 3 and 8 of the European Convention on Human Rights (ECHR). Five of the appellants were suffering from end stage kidney disease (ESKD) and if removed to their home states, were at risk of suffering a very early death. The last appellant was at an advanced stage of HIV infection. All six appellants were receiving medical treatment in the UK.

Maurice Kay LJ granted the appellants permission to appeal on the basis that there were arguable issues as to the precise scope of the judgments in D v United Kingdom (1997) 25 EHRR 31, N v United Kingdom (2008) 47 EHRR 39 and the preceding House of Lords Decision in N – N v Secretary of State [2005] 2 AC 296, [2005] UKHL 31.

Cases of D and N

The case of D involved a claimant who had been convicted of supplying Class A drugs and the Secretary of State had proposed to move him to St Kitts. He was suffering from AIDS and was close to death. His life expectancy was in the region of eight to twelve weeks even if he continued treatment in the UK. It was held that the decision to remove someone who is suffering from serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the country of origin may only raise an issue under Article 3 in very exceptional circumstances, where the humanitarian grounds against the removal are compelling. In this case, the very exceptional circumstances were that the applicant was critically ill and appeared close to death; could not be guaranteed any medical care in his country of origin and had no family there willing or able to care for him or provide him with food, shelter or social support.

In the case of N, the appellant, a Ugandan woman also suffered from AIDS. The Secretary of State proposed her return after the rejection of her asylum claim. She had received medical care in the UK for a long period. As a result, her condition was stable and if she continued to have access to the drugs and medical facilities in the UK, she would remain well for ‘decades’. Without this however, she would suffer ill health, pain and would die within a year or two. The chances of her receiving necessary medical care in Uganda was described as ‘problematic’ and would be similar to having a ‘life support machine switched off’. The key issue was whether her removal to Uganda would breach her right under Article 3. It was held that it would not as Article 3 imposed no medical care obligation on contracting states, even in circumstances where the absence of medical treatment would significantly shorten the life of the appellant. D was distinguished on the bases that there was no obligation on the UK in that case as D was already dying.

Other Article 3 cases considered

The Court of Appeal also considered the cases of MSS v Belgium & Greece (2011) 53 EHRR 2 and Sufi and Elmi v UK (2012) 54 EHRR to see whether they could cast any significant light on the approach to be taken to the binding authority of N. In MSS and Sufi and Elmi, the receiving states were responsible for the Claimant’s plight. The first in relation to the lack of reception arrangements for asylum seekers and the second was due to the nature of the crisis in Somalia, which was the direct and indirect actions of the parties to the conflict. Laws LJ stated that these cases demonstrated that there may be departures from the typical Article 3 situations other than of a kind put forward in D.

Laws LJ found that such departures were justified and were even indicated in D and N itself:

“Given the fundamental importance of Article 3 in the Convention system, the Court must reserve to itself, sufficient flexibility to address the application of Article 3 in other contexts which might arise”. (Paragraph 49 of N)

“The Court does not exclude that there may be other very exceptional cases where the humanitarian conditions are equally compelling” (Paragraph 43 of D)

However, Laws LJ held that that there was a difference between the plight of a person whose life expectancy may be severely shortened by his removal or deportation to his home country and a situation where the receiving state is/would be responsible for the Claimant’s plight.

Accordingly, their Lordships concluded that that the appellants were not able to bring themselves within the D exception.

Article 8 ECHR

In relation to Article 8, the Lord Justices held that the approach set out in MM Zimbabwe [2012] EWCA Civ 279 was the correct one: that is, if an Article 3 claim fails, an Article 8 claim cannot succeed without some separate or additional factual element that would give rise to an Article 8 claim. Although Laws LJ held that he did not have jurisdiction to hear the appellants’ claims under Article 8 (whereas Sullivan LJ and Underhill LJ refused to exercise their discretion to hear the appeals) as Article 8 had not been raised in the Upper Tribunal, it was held that applying the principle set out in MM to the case of the appellants, there was no additional basis for their claims to fall within the Article 8 paradigm where there was none under Article 3.

Unfortunately this judgment does not expand the scope of Article 3 in health cases. An application to appeal is being made directly to the Supreme Court following the refusal of permission to appeal by the Court of Appeal, in the hope that the Supreme Court will be more open to developing the principle in Article 3 medical cases.