Article 8 and Paposhvili: Guidance in GS (India) is Correct

SL (St Lucia) v The Secretary of State for the Home Department [2018] EWCA Civ 1894 (07 August 2018)

The important judgment in Paposhvili v Belgium [2016] ECHR 1113 caused quite a stir when it was delivered. However, its effects in the UK courts have been caged by the doctrine of precedent which means that at any rate the restrictive approach in N (Uganda) v Secretary of State for the Home Department [2005] UKHL 31 must prevail over any other authorities. In the present case, the Court of Appeal refused to grant a national of St Lucia permission to appeal against the refusal of her application for leave to remain in the UK. Moreover, Hickinbottom LJ certified that the court’s judgment might be cited in other cases and reminded us that recently in AM (Zimbabwe) [2018] EWCA Civ 64, it was clear to Sales LJ that, in substantive terms, Paposhvili only intended to make a very modest extension of the protection under article 3 of the ECHR in medical cases. Hickinbottom LJ found that Paposhvili had no effect on the threshold or approach to private life claims pursuant to article 8 of the ECHR where a person’s health and medical treatment was the only, or only material, issue. The correct approach was that an absence of medical treatment in the country of return would not in itself engage article 8. SL was born in 1970 and lived in St Lucia until she was 32 and arrived in the UK in October 2002 as a visitor.

In April 2003, she was granted a student visa, which she successively renewed until 31 May 2011. After eight-and-a-half-years of being in the UK lawfully she unlawfully overstayed. In July 2012, SL applied for leave to remain on private life grounds under paragraph 276ADE(vi) of the Immigration Rules. The then version of the rule required that she was aged 18 years or above, had lived continuously in the UK for less than 20 years but had “no ties (including social, cultural or family)” with St Lucia. In March 2013, her application was refused both under paragraph 276ADE and outside the rules. Judge Grant found that, where someone was receiving treatment in the UK, a mental health condition and suicide risk that was not severe enough to engage article 3 might still engage article 8, at least in principle. The judge concluded that since appropriate mental health services and support facilities were available in St Lucia, SL’s return to that country would not have such grave consequences that article 8 was engaged with respect to the right for private life encompassing mental stability. The Upper Tribunal upheld the First-tier judge’s decision on appeal.

Background

Judge Grant accepted that SL was seriously mentally ill and unable to give oral evidence. Consequently, it was not possible to test the account she gave in her witness statement, and the tribunal proceeded on the basis that her account was true. SL was subjected to harsh physical and emotional ill-treatment at school and within her family. Born with a severe squint, she was mistreated. She was shunned by her mother who would not allow her to wear glasses and suffered headaches as a result. Her squint was surgically fixed but a local pastor, who she trusted, abused and exploited her. The tribunal therefore found that SL suffered from chronic mental health problems requiring ongoing treatment. It was also the case that a serious risk of suicide and self-harm existed in her case which was increased by the prospect of removal to St Lucia.

Yet it was also clear that treatment for mental illness is available in St Lucia and that SL’s suicide risk could be minimised by utilising medical escorts during her removal and her immediate admission to a mental health clinic in St Lucia. So it was clear that article 3 was not in play and SL did not rely on article 8 as she was estranged with her UK relatives and had no contact with them. Judge Grant found that SL had no network of friends. She did not make or retain friends easily and the case on private life was thin and the two witnesses who gave evidence for SL had lost contact with her several years earlier. Judge Grant held that any social support and assistance could be obtained upon return in St Lucia.

Deputy Upper Tribunal Judge Ramshaw found that Judge Grant was incorrect to consider the medical basis of the article 8 claim separately from the rest of the private life claim. However, the error was immaterial since SL’s private life claim was very weak and centred inevitably upon the medical strand. The appeal had no real prospect of success. Thus, the First-tier Tribunal’s determination did not contain any material error of law and the appeal was dismissed.

The Court of Appeal

Principally, SL submitted that when considering the materiality of Judge Grant’s failure to consider the totality of article 8 factors – medical and non-medical – the Deputy Judge erred by not viewing the issue with the Paposhvili principles in mind.

Paposhvili post-dated the Deputy Judge’s decision and SL submitted that the Grand Chamber’s judgment extended the protection of article 3 against removal in medical cases, thereby lowering the evidential threshold for the engagement of article 8 if the relevant individual’s mental health is the only or a material issue as it was in her case.

She alleged that Paposhvili demonstrated that GS (India) [2015] EWCA Civ 40 was wrongly decided and the faulty guidance, whereby if a medical claim failed under article 3 it was unlikely to succeed under article 8, imparted by the Court of Appeal in relation to article 8 needed to be revisited.

(i) Paposhvili

Paposhvili, a Georgian national, suffered from chronic lymphocytic leukaemia. Belgium wished to return him to Georgia but he asserted that his removal to Georgia would breach article 3 because he would not receive effective medical care upon return and would therefore suffer “degrading treatment” within the meaning of article 3. By definition “degrading treatment” means treatment “such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance”. It was held in Pretty v United Kingdom (2002) 35 EHRR 1 that for treatment to amount to a breach of article 3, it requires a “minimum level of severity”.

In N v United Kingdom (2008) 47 EHRR 39, the ECtHR endorsed the decision of the House of Lords in N whereby the protection of article 3 against removal in medical cases was confined to “deathbed” cases where death is already imminent when the applicant is in the removing country. The ECtHR subsequently relaxed the stringency of the test and held in Paposhvili that the protection of article 3 extended to cases where:

183.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.

In AM (Zimbabwe) the Court of Appeal made it clear that the decision in N was binding and it represented the authoritatively settled legal criteria and Sales LJ said that in substantive terms, Paposhvili only intended to make a very modest extension of the protection under article 3 in medical cases.

(ii) GS (India)

In GS (India) the Court of Appeal considered the relationship between the article 3 criteria and the article 8 criteria in the context of healthcare cases. Significantly, Sales LJ said in AM (Zimbabwe) that the decision “brought the test under article 3 and the approach under article 8 into close alignment” because if a medical claim failed under article 3, it was unlikely to succeed under article 8. In GS (India) the court followed the decision in MM (Zimbabwe) [2012] EWCA Civ 279 and held that “article 8 cannot prosper without 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.”

On the other hand, “degrading treatment” within the meaning of article 3 must have “a minimum level of severity” and the threshold is high, something with which Paposhvili was concerned. By contrast, as Laws LJ had held in GS (India), article 8 seeks to protect family and private life and is concerned with the quality of life. It is a very wide provision and rights conferred by it inevitably conflict with the rights and interests of others, including those derived from the ECHR, and the public interest. The threshold of engagement of article 8 is low but as Lady Hale said in Razgar [2004] UKHL 27 there must be a strong healthcare case before article 8 is even engaged. Once article 8 is engaged, a balancing exercise must be conducted. Because interference by the state on lawful and necessary grounds is possible, the focus and structure of article 8 is distinct from article 3.

(iii) Judgment of Hickinbottom LJ

In light of the approach taken by Sales LJ’s approach in AM (Zimbabwe), it was clear to Hickinbottom LJ that in substantive terms, Paposhvili had made only a very modest extension to the protection under article 3 in medical cases. It was therefore obvious that Paposhvili shifted the boundary of protection 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 unavailability of the treatment in the receiving state which had previously been available in the removing state. Roundly rejecting the complaint about the incorrectness of GS (India), the court held that:

27. … However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition … In particular, 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.

Hickinbottom LJ opined that the absence of such treatment has on article 8 is that it only constitutes an additional factor in the balance with other factors which themselves engage article 8. Indeed, the approach of the court in MM (Zimbabwe) confirmed this point. It was clear from GS (India) that article 8 claims have a different focus and are based upon entirely different criteria. Therefore the Court of Appeal held that:

27. … Where an individual has a medical condition for which he has the benefit of treatment in this country, but such treatment may not be available in the country to which he may be removed, where (as here) article 3 is not engaged, then the position is as it was before Paposhvili, i.e. the fact that a person is receiving treatment here which is not available in the country of return may be a factor in the proportionality balancing exercise but that factor cannot by itself give rise to a breach of article 8.

Significantly, as Lady Hale had held in Razgar, in striking that balance, only the most compelling humanitarian considerations are capable of prevailing over legitimate aims of immigration control. Therefore, in Hickinbottom LJ’s view the approach delineated in MM (Zimbabwe) and GS (India) is unaltered by Paposhvili and remained intact and appropriate. A contrary argument was unarguable.

Therefore, SL stood no real prospect of success on appeal. Equally, there was no other substantive reason why her appeal should proceed. Turning to an eleventh hour argument aired in relation to fairness – namely that the tribunals failed to translate the procedural requirements imposed by article 3 in a healthcare case into their consideration of article 8 – the Court of Appeal found no breach of any procedural requirements because SL was given every opportunity to put forward her article 8 claim, including the healthcare element of it. Deputy Judge Ramshaw was right to hold that SL’s article 8 claim was “very weak” and revolved round the medical claim.

The court also rebuffed the claim that the Deputy Judge erred in holding that Judge Grant correctly approached section 117B of the Nationality, Immigration and Asylum Act 2002, by treating the SL’s English speaking ability and financial independence as neutral rather than factors positively in her favour. Rhuppiah [2016] EWCA Civ 803 had been followed and the tribunals and the Court of Appeal were bound by it despite the appeal to the Supreme Court (discussed here) and in any event it was not argued before Judge Grant that SL’s English speaking ability financial independence ought to be treated as positive factors, but only as neutral. Bean LJ concurred with Hickinbottom LJ.

Comment

The above rendering of Paposhvili symbolises the reluctance of the UK courts to depart from the inflexible domestic approach in N – which binds all UK courts save the Supreme Courtand the legal benchmark it established. In EA & Ors (Article 3 Medical Cases: Paposhvili Not Applicable: Afghanistan) [2017] UKUT 445, the Upper Tribunal held that the Paposhvili test “is not a test that it is open to the Tribunal to apply by reason of its being contrary to judicial precedent.”

Indeed, the divergence of the approaches in N and Paposhvili is the subject of ongoing debate in the courts. Significantly, Sales LJ said in AM (Zimbabwe) that it was “highly desirable” for the Supreme Court to consider at an early stage the impact of Paposhvili for the purposes of domestic law. But in his view the cases before him fell “a long way short” of meeting the test in para 183 of Paposhvili and he therefore doubted whether they were “ideal” Supreme Court material. He therefore advised the appellants to ask the Supreme Court for permission to appeal.

Howeverin MM (Malawi) [2018] EWCA Civ 1365, an overly cautious Hickinbottom LJ used the rarely used power in CPR rule 52.20(2)(b) to refer to the Upper Tribunal for redetermination a Malawian HIV sufferer’s case despite the fact that a pressing need exists for the Supreme Court to adjudicate upon the true impact of Paposhvili on domestic jurisprudence.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 3, Article 8, Court of Appeal, Immigration Rules, Medical Cases, Precariousness, Proportionality, Public Interest, Tribunals, UKSC and tagged , , , , , , , . Bookmark the permalink.

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