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When Must the Seriously Ill or Dying Go Home? The Case of SL (St. Lucia)

Over the years, a significant amount of case law has emerged giving guidance on removing or deporting individuals in heartbreaking circumstances from the UK; namely, when those individuals are severely ill or dying, but are receiving ongoing medical treatment. In the recent case of SL (St. Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894, identifying when removing or deporting these unfortunate souls constitutes inhuman or degrading treatment or a breach to their private or family life is reaffirmed.

The Facts of the Case

The Appellant, a national of St. Lucia, was born in 1970. Experiencing an abusive upbringing, she suffered physical and emotional ill-treatment at the hands of her mother, and at her school. As a teenager and for several years thereafter, the Appellant also suffered abuse, some sexual, carried out by her pastor.

Leaving her family behind, the Appellant arrived in the UK in October 2002, on a six-month visitor visa. In April 2003, she obtained Leave to Remain as a student, and subsequently extended her stay until May 2011. She made no further applications after this point, and became an overstayer.

The Appellant suffers from chronic mental health problems as a result of her experiences in St. Lucia, and requires ongoing treatment. She was deemed a suicide risk and is at risk of self-harm, risks that would increase if she were removed to St. Lucia.

In July 2012, she applied for Leave to Remain in the UK, on the basis that her rights under Article 3 and Article 8 of the European Convention on Human Rights would be breached if she were required to leave. This application was refused and, after her appeal bounced between the First Tier and Upper Tier Immigration Tribunals on a separate issue, her case came before the Court of Appeal.

Article 3 and Article 8 – And Their Interplay

Article 3 of the European Convention on Human Rights states that no one shall be subjected to torture or inhuman or degrading treatment. As an absolute right, if a public body’s conduct towards an individual engages and subsequently breaches Article 3, no excuse can be made justifying that conduct.

The question of when returning a seriously ill or dying individual to their country of origin constitutes a breach to Article 3 has previously been considered by the courts in the case of N v United Kingdom [2008] 47 EHRR 39. There, the bar was set high; such removals would only constitute a breach if that individual were effectively on their deathbed, and removing them would result in their imminent death.

The bar has since been lowered (though not substantially), following the case of Paposhvili v Belgium [2017] Imm AR 867, heard in the European Court of Human Rights. Now, in order for Article 3 to be breached, the individual if removed must suffer 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” (Para 183).

However, the courts have indicated that Article 8 of the Convention (which protects an individual’s private and family life, subject to certain public interests), may also come into play in cases of severely ill or dying returnees. In GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40, it was held that even if Article 3 did not apply, Article 8 could where there is (as per Laws LJ at 86);

“some separate or additional factual element which brings the case within the article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm”.

Though arguably a less conventional interpretation, this has been deemed to include a private and family life built through receiving medical treatment and support in the UK, and enjoying an increased sense of mental stability.

Application to SL and Analysis

Taking all of the above cases into account, the court in SL concluded that, with no significant family in the UK, very limited evidence from friends and contacts, and appropriate treatment for her medical condition available in St. Lucia, Article 3 and 8 were not engaged. The Appellant’s appeal was subsequently dismissed.

The judgment in SL demonstrates that the courts are wary of Appellants who, falling short of the tough “serious, rapid and irreversible decline” test of Article 3, try to use an application of Article 8 at its extremities as a way of remaining in the UK.

However, Article 8 is drafted ambiguously, in the interests of protecting people’s rights from whatever encroachments appear on the horizon. An assessment of all aspects of an individual’s family and private life, including their medical treatment in the UK, must therefore be made when the right is raised.

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