“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
“…. For the circumstances to be … ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. …”
“Is there, then, some other rationale underlying the decisions in the many immigration cases where the Strasbourg court has distinguished D’s case? I believe there is. The essential distinction is not to be found in humanitarian differences. Rather it lies in recognising that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such ‘medical care’ obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened. But in the case of D, unlike the later cases, there was no question of imposing any such obligation on the United Kingdom. D was dying, and beyond the reach of medical treatment then available.”
“93. The logical distinction between the two very different scenarios presented respectively by D and the later cases is surely this. D appeared to be close to death; paragraph 21 of the Court’s judgment there records that at the hearing on20 February 1997 : ‘according to his counsel, it would appear that the applicant’s life was drawing to a close much as the experts had predicted’ (a medical report of June 1996 having stated that D’s prognosis was limited to 8-12 months). The critical question there was accordingly where and in what circumstances D should die rather than where he should live and be treated. D really did concern what was principally a negative obligation, not to deport D to an imminent, lonely and distressing end. Not so the more recent cases including the present one. Given the enormous advances in medicine, the focus now is rather on the length and quality of the applicant’s life than the particular circumstances of his or her death. In these cases, therefore, the real question is whether the State is under a positive obligation to continue treatment on a long-term basis. It is precisely in this type of case that the Court’s statement in D (para 54), that those subject to removal ‘cannot in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state’, has particular application. 94. What then must be established to bring a case of this nature within the category of very exceptional cases represented by D? I am content to adopt the test stated by my noble and learned friend, Lord Hope of Craighead: it must be shown that the applicant’s medical condition has reached such a critical state, that there are compelling humanitarian grounds for not removing him or her to a place which lacks the medical and social services which he or she would need to prevent acute suffering.”
“43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in [D] and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. 44. … [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see [Soering v United Kingdom(1989) 11 EHRR 439 (“Soering”) at paragraph 89]). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.”
“The court considers that the ‘other very exceptional cases’ within the meaning of the judgment in [N]... which may raise an issue under article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, 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 the 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…”
“… [T]he boundary of article 3 protection has been shifted 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 non-availability in that state of the treatment which had previously been available in the removing state.” iii) However, whilst acknowledging that relaxation of the test, Sales LJ considered “it does so only to a very modest extent”
“41. It is true that if one read the phrase ‘would face a real risk… of being exposed… to a significant reduction in life expectancy’ in [183] out of context, it might be taken to indicate a very wide extension of the protection of article 3 in medical cases, since in very many such cases where a foreign national is receiving treatment at a higher level of effectiveness in the removing state than would be available in the receiving state (e.g. in the case of those suffering from AIDS) they would be able to say they would face a real risk of a significant reduction of life expectancy if they were removed. But this is not a tenable interpretation of [183] of Paposhvili, read in its proper context. [N] was itself a case where removal resulted in a very significant reduction in life expectancy (as was also noted in Paposhviliat [178]), in which no violation of article 3 was found, and the Grand Chamber in Paposhviliplainly regarded that case as rightly decided. [N]was itself a Grand Chamber judgment, decided by 14 votes to 3. It is impossible to infer that by the formula used in [183] of Paposhvilithe ECtHR intended to reverse the effect of [N]. Moreover, the Grand Chamber’s formulation in [183] requires there to be a ‘serious’ and ‘rapid’ decline in health resulting in intense suffering to the article 3 standard where death is not expected, and it makes no sense to say in the context of analysis under article 3 that a serious and rapid decline in health is not a requirement where death rather than intense suffering is the harm expected. In my view, the only tenable interpretation of [183], read in context, is the one given above. 42. In that regard, it is also significant that even on the extreme and exceptional facts of the Paposhvilicase, where the applicant faced a likelihood of death within 6 months if removed to Georgia, the Grand Chamber did not feel able to say that it was clear that a violation of article 3 would have occurred for that reason had he been removed…”. iv) In respect of the correct approach and burden of proof, Sales LJ said this (at [16]): “It is common ground that where a foreign national seeks to rely upon article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country: see, e.g., [Soering] at [91], which is reflected in the formulations in Paposhvili at [173] and [183]…. In Paposhvili, at [186]-[187]…, the Grand Chamber of the ECtHR has given guidance how he may achieve that, by raising a prima facie case of infringement of article 3 which then casts an evidential burden onto the defending state which is seeking to expel him.”
“It is still unclear what the position is regarding the availability of treatment in Malawi. [MM] has put forward evidence to suggest that liquid form treatment is not available but clearly some treatment is available. Given the paucity of evidence before the judge, it was in my view a material error of law for the judge to find as he did that to return [MM] to her country of origin would be to breach her rights under article 3. In my view no such breach of this country’s obligations will occur.”
“1. Whether the ‘very exceptional circumstances’ test for article 3 medical claims identified in D, and applied domestically in N…, must be construed by the domestic courts compatibly with the decision of the ECtHR in Paposhvili to extend beyond ‘deathbed’ cases? 2. If the ‘very exceptional circumstances’ test is to be modified compatibly with Paposhvili, whether there are ‘very exceptional circumstances’ if a necessary drug is available, but not in the form that [the applicant] is able to ingest?”
“Whether the UT was correct to find that the judge at First-tier erred in finding that there is an investigative burden on [the Secretary of State], as articulated in Paposhvili, and, if a burden exists, what are its contents and the implications of [the Secretary of State’s] failure?”
“We do not need to decide what Ms McCarthy [Counsel for the Applicants] calls the ‘threshold issue’ (in other words the standard to which the [Applicants] need to establish real risk) or at what point the burden passes to the [Secretary of State] to dispel serious doubts contained within the [Applicants’] evidence. Whether our conclusion is seen as being a rejection of the [Applicants’] evidence as meeting the necessary threshold or as accepting that the [Secretary of State’s] evidence has dispelled any serious doubts arising from the [Applicants’] evidence, our findings are the same. There are no substantial grounds for believing that MM would be exposed to a serious, rapid and irreversible decline in her health on account of lack of availability or inaccessibility of treatment for her health condition.”
“26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must “necessarily be serious” such that it is “an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment”…. 27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant’s article 3 rights. Thus in Soeringat [91], the court said: “In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”
“31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant’s claim that removal will violate his or her article 3 rights.”
“It seems to me that it is seriously arguable that applying the less severe test to article 3 might on the evidence available have caused the FtT and the UT to reach a different result.”