Paposhvili and precedent: SCD patient loses in Court of Appeal 

Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139 (04 July 2019)

In the case of “PF”, a Nigerian father who was suffering from sickle cell disease (“SCD”) from birth but who was a “foreign criminal”, the Court of Appeal has allowed the Home Office’s appeal against the earlier finding of the Upper Tribunal that his deportation from the UK would breach his rights under both article 3 and article 8 of the ECHR. PF was born and brought up in Nigeria. He came to the UK in 1990 aged 13 on a visit visa. However, he overstayed in the UK and in 2000 he was granted indefinite leave to remain (“ILR”). He was refused British citizenship because he failed to fully declare his criminal record. PF developed a lengthy criminal record and in 2010 he was sentenced, in light of a guilty plea, to five years and eight months’ imprisonment concurrent on two counts of criminal conspiracy to supply heroin, which instigated liability to automatic deportation under section 32 of the UK Borders Act 2007. But he argued that he fell within one of the exceptions set out in section 33, i.e. that his removal would breach his and/or his family’s rights under article 8 of the ECHR on account of his ILR, his long residence in the UK, his long-term relationship with his partner, and the fact that his children were British citizens who lived here and with whom he had a close relationship. One million people suffer from SCD in Nigeria. Their life expectancy is low. 

PF had three minor children with three different partners, all of whom were UK citizens. Allowing the government’s appeal, Hickinbottom LJ said that SCD “is a terrible disease; and one can only have sympathy for those who suffer from it,” but judged that the Upper Tribunal had misunderstood the principle of stare decisis in applying the revised test enunciated by the Grand Chamber of the ECtHR in Paposhvili v Belgium [2016] ECHR 1113 (at paragraph 183) instead of being bound by N (Uganda) v Secretary of State for the Home Department [2005] UKHL 31 where the House of Lords held that the protection of article 3 against removal in medical cases is confined to so-called “deathbed” cases where death is already imminent when the applicant is in the removing country. In N v United Kingdom (2008) 47 EHRR 39, the ECtHR endorsed the decision of the House of Lords in N but the judgment in Paposhvili produced the effect of extending the protection under article 3 in medical cases. SCD is a genetic blood disorder and it results in life-threatening medical problems and infections.

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”. The ECtHR subsequently relaxed the stringency of the “deathbed” test and in Paposhvili it held 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.

However, in AM (Zimbabwe) [2018] EWCA Civ 64, it was held by 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.

Upper Tribunal 

This case had a chequered history in the sense that it has been through the judicial system twice and has been litigated in the First-tier Tribunal and the Upper Tribunal repeatedly and was earlier in the Court of Appeal as PF (Nigeria) [2015] EWCA Civ 251 where Sir Stanley Burnton and Sullivan and Treacy LJJ had held that the appeal should be remitted to the First-tier Tribunal. Subsequently, FTTJ Metzer dismissed the appeal and the matter entered the Upper Tribunal for a second time.

UTJ Lindsley considered the issues were two-fold, i.e. (i) would deportation bring about a real risk of a breach of article 3, and (ii) would it breach article 8? It was her view that PF did not satisfy the restrictive test in N. He was not at real risk of death within a short period of time. Applying the Paposhvili test which, in light of AM (Zimbabwe) [2018] EWCA Civ 64 she considered she was bound to apply, she concluded that, if PF were indeed deported to Nigeria, there was: 

61. … a real risk of him rapidly experiencing intense suffering to the article 3 standard because of his [SCD] and the paucity of treatment there.

UTJ Lindsley thought that PF would not have access to prophylactic antibiotics and the heavy-duty morphine pain relief he needs or further antibiotics to treat the infections he has contracted. He would not be able to afford whatever basic care is available in Nigeria and no close family would care for him. So he risked being in degrading circumstances because of his home conditions during acute crises. She did not find that the shortening of life expectancy met the Paposhvili test but said on the basis of medical evidence submitted by three doctors that there was a real risk of him dying within five years of returning to Nigeria. The estimates regarding life expectancy of SCD patients in Nigeria suggested that it was quite unusual for a SCD patient to live beyond 50 years and that patients in 80 per cent of cases die before 35 years because of Nigeria’s poor health system/infrastructure.

UTJ Lindsley held that PF’s deportation would breach article 3 and she also held that, despite confessing that it was unnecessary for her to determine the article 8 issue, that his deportation would breach article 8 as well. She also considered his “appalling criminal history” but nonetheless held that the medical issues outlined above in the discussion of article 3 were capable of raising, in combination with other factors, a different and sufficient case for PF’s deportation to also entail a disproportionate interference with his article 8 rights. She noted that the local MP opined that PF’s deportation would “destroy” the children. Furthermore, a consultant counselling and psychotherapeutic psychologist confirmed the harsh impact of PF’s deportation on his children. 

UTJ Lindsley held that the fact PF would be subject to “excruciating suffering” on return to Nigeria, his death being predictable within five years would “be over and above unduly harsh to his children [Y and Z], with whom he has a close and dedicated parental relationship capable of surviving separation in prison”. 

She was clear that these were the only factors, centred on his SCD, which made her conclude that there were “very compelling circumstances” for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002 and she thus found that PF’s deportation would breach both article 3 and article 8 and so she allowed his appeal against the decision to make a deportation order against him.

Grounds of appeal 

Aggrieved by the decision of the Upper Tribunal the Home Office argued that (i) it erred in its determination that the First-tier Tribunal erred in law in refusing PF’s appeal against the deportation order, (ii) UTJ Lindsley erred in applying the test in Paposhvili (rather than the test in N) as the threshold of severity under article 3, (iii) she made perverse and/or inadequately reasoned findings and further failed to consider whether upon his deportation PF would suffer “a serious, rapid and irreversible decline” in his health, and (iv) she erred in finding that deportation would be a disproportionate interference with PF’s and his family’s article 8 rights.

The Court of Appeal 

Although UTJ Lindsley took too large a view of the precise mechanics of the law, the Court of Appeal expressed some agreement with her other findings, namely that PF’s appeal was not the type of case where, upon deportation, death would occur within a very short time (indeed PF’s counsel did not seek to suggest otherwise). In JG (Jamaica) [2019] EWCA Civ 982 (discussed here), in light of the relevant authorities, Underhill LJ referred to the need to show that the effect on the relevant child or partner would be “extra unduly harsh” However, Hickinbottom LJ agreed with the Home Office that, such a formulation risks masking a difference in approach required by section 117C(5) and (6) respectively.

He said that KO (Nigeria) [2018] UKSC 53 (discussed here) held that “the former requires an exclusive focus on the effects of deportation on the relevant child or partner, section 117C(6) requires those effects to be balanced against the section 117C(1) public interest in deporting foreign nationals. Under section 117C(6), the public interest is back in play.”

(i) Applicability and application of Paposhvili

If the criteria in N were not satisfied but those in Paposhvili were, that might be a reason to grant permission to appeal to the Supreme Court, or at least to grant a stay of the appeal pending the outcome of AM (Zimbabwe) in the Supreme Court in which the article 3 threshold was likely to be tested as a matter of domestic law. However this was not to be. 

Hickinbottom LJ addressed the grounds by first considering the Paposhvili test. Very properly PF’s counsel accepted that UTJ Lindsley erred in the applicability of the test but nonetheless argued that her error was/may have been immaterial because the judge had also allowed the appeal on the alternative article 8 basis. The Court of Appeal noted with regret that she appears to have misunderstood the principle of stare decisis (precedent) as specified in AM (Zimbabwe) and in MM (Malawi) [2018] EWCA Civ 2482 whereby all courts and tribunals should follow the House of Lords in N unless and until it is overruled by the Supreme Court. In the guidance case 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.” Hickinbottom LJ expressed approval with the tribunal approach in this “aptly entitled” decision. If deported, PF did not face the risk of imminent death and thus the criteria in N were not satisfied and accordingly UTJ Lindsley was bound to refuse his deportation appeal on article 3 grounds and therefore:

77. … She erred in law in not so doing. The error was clearly material so far as the article 3 claim was concerned.

The Home Office submitted that the judge’s factual findings were not open to her and that she failed to apply the real Paposhvili test. The minutiae of the overall quality of medical treatment in Nigeria was one thing, but Hickinbottom LJ overall opined that the question for him under Paposhvili was whether the judge was wrong to conclude that, if PF were to be deported to Nigeria, owing to an absence or the practical unavailability of appropriate treatment, he will suffer a serious, rapid and irreversible decline in his health resulting in intense suffering. With that in mind his Lordship held that: 

90. In my judgment, on the evidence before Judge Lindsley (and the evidence now before us), that is not a finding that could properly be made.

He agreed with UTJ Lindsley that PF’s case was not one where death would occur soon upon deportation. She was however wrong to find there was a real risk of PF’s death within a five-year period and that his death within that period was “predictable”. She relied upon a single, second-hand reference from 2005 giving a median figure for the life expectancy of SCD patients throughout Africa which was clearly heavily informed by the very high infant mortality rate (irrelevant in PF’s case) to draw an inference in PF’s particular case. UTJ Lindsley had erred in finding there would be a “serious, rapid and irreversible” decline in his health. 

Hickinbottom LJ said that while morphine and antibiotics are available to treat the inevitable sickle cell crises and infections that PF will suffer, as confirmed by the country guidance report it is clear from the evidence that health facilities in Nigeria are less sophisticated than the ones in the UK. Particularly, the facilities for treating SCD patients are much better in the UK. However, that alone does not mean that removing a SCD patient from the UK to Nigeria will breach article 3 and the court explained that:

91. … The article 3 threshold is still very high; and there is no evidence that the Respondent will suffer anything like the serious, rapid and irreversible decline in his health resulting in intense suffering that is required by Paposhvili. That is so, whatever the outcome of AM (Zimbabwe) in the Supreme Court may be. Indeed, in my view, serious and painful as the Respondent’s condition clearly is, this case falls far short of the article 3 threshold, however it is put.

Having said that Hickinbottom LJ explained further that he would not only allow the appeal on the article 3 ground, but he also refused to grant PF permission to appeal on the point to the Supreme Court or issue any stay.

(ii) Article 8

In SL (St Lucia) [2018] EWCA Civ 1894 (see here), Hickinbottom LJ had rejected the challenge that the authority of 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 in relation to article 8 needed to be revisited. Overall, Hickinbottom LJ said in SL (St Lucia) that he was not at all persuaded that Paposhvili had changed the approach to article 8 in medical cases and he therefore 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. As I have indicated and as GS (India) emphasises, article 8 claims have a different focus and are based upon entirely different criteria. 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.

In the context of PF’s situation, UTJ Lindsley found that “the medical consequences of his deportation” as she had found in relation to the article 3 ground in themselves would have a disproportionate effect on PF’s private life. This led the court to a strident conclusion in the present case and an unrelenting Hickinbottom LJ held that: 

94. … In my judgment, in making that stark conclusion, Judge Lindsley unfortunately fell into the error identified in GS (India) and SL (St Lucia), by in substance treating the article 8 claim as an article 3 claim with simply a lower threshold.

The court further held that whilst she was entitled to a wide margin of appreciation in her assessment of the factors under section 117C(6) of the 2002 Act, it was still the case that UTJ Lindsley’s conclusion that the effects of PF’s deportation on his children were “over and above harsh” was flawed. 

Comment

The controversy surrounding Paposhvili and the doctrine of precedent whereby N prevails over everything else has proved to be troublesome for people who are in difficulties and are need of relief in immigration medical cases.

UTJ Lindsley seems to be an expansionist of human rights law and that is probably the reason why she allowed PF’s appeal. By contrast, Hickinbottom LJ is infamous for his restrictive views on ECHR rights in medical cases and hence it is not very surprising that he dismissed this appeal. The ongoing saga in PF’s case – who won his appeal but is now in limbo yet again – and other proceedings in the tense genre of immigration medical cases shows that adjudication on the precise status of Paposhvili is desperately needed at apex court level to conclusively rectify the controversial decision in N which forbids the courts from granting relief to terminally ill persons unless they are on their deathbeds. 

Permission to appeal in AM (Zimbabwe) was granted by the Supreme Court (Lady Hale, Lady Black and Lord Kitchin) on 28 November 2018. The hearing has been set down for December 2019 and it will present a great opportunity for the apex court’s Justices to decisively change the law in this sphere and provide much-needed relief to people in PF’s situation who, owing to the impending threat of deportation, urgently need clarity in this complex area of law so that justice can truly be done in their cases. 

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, Automatic Deportation, Court of Appeal, ECHR, Families, Immigration Act 2014, Immigration Rules, Nigeria, Public Interest, Settlement, Tribunals, UKSC and tagged , , , , , , , , . Bookmark the permalink.

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