The Secretary of State for the Home Department v EA & Anor

(i) EA (whom we refer to as an appellant although the appeal to the Upper Tribunal is brought by the Secretary of State) is a citizen of Afghanistan who was born on 1 January 1993. Differing opinions have been provided as to his mental illness, one describing it as a schizoaffective disorder and a mixed personality disorder; another , that it is paranoid schizophrenia. The difference is immaterial for our purposes. He is under a regime of anti-psychotic medication. I t is a chronic ailment of a rela psi ng and remitting nature. He is currently housed in a secure accommodation under the MHA and has been since 201 2 .

T here is no suggestion that the conditions of these appellants (or t heir depend ants ) has reached the stage where any of the m are dying. Indeed with treatment provided by the NHS, their condition could not reasonably be bettered.

In each case , the appellants sought leave to remain on the basis that their removal would violate their rights under Article 3 of the ECtHR . It is sometimes as well to remind ourselves of the scope of Article 3:

Shorn away from those elements that it has now become almost redundant to make out, such as torture or punishment (both of which suggest an intentional infliction of suffering), we are almost invariably focussed on that protean concept of inhuman or degrading treatment. The enquiry moves from the motivation of the actor behind the suffering to the effect of the relevant circumstances upon the individual .

That said, there is nothing untoward in seeing the progressive decisions of the United Kingdom Courts and the ECtHR as extending the ambit of the Convention which has been described by Lord Hope as a ‘living instrument’ , (paragraph 21, N v SSHD [2005] 2 AC 296 ) .

T he claims before us centred upon a violation of their Article 3 rights . T he centrepiece of their argument s was directed towards the effect of the Strasb ou rg decision in Paposhvili v Belgium , 13 December 2016, ECtHR (Application No 41738/10) and the seminal restatement of Article 3 set out in paragraph 183 of the Grand Chamber of ECtHR’s judgment:

At this stage we are not concerned with whether the three appellants’ claims have established t hat t hey are seriously ill or whether they face a real risk of a serious, rapid and irreversible decline in their health resulting in intense suffering or a reduction in their life expectancy. In the cases of these three appellants, there is a significant range in the seriousness of their conditions.

T he Tribunal requir ed th e application of the Paposhvili test to be decided as a preliminary issue because it is only by determining the correct approach to be adopted by the T ribunal to the decision in Paposhvili that the Tribunal might assess how the th r ee appeals might proceed.

Lord Neuberger g iv ing the judgment of the Court in Manchester City Council v Pinnock [2011] UKSC 6 stated in paragraph 47 that decisions of the House of Lords and the Supreme Court have to be seen against the ‘ backdrop ’ of the evolving Strasbourg jurisprudence. He continued in paragraph 48:

From this passage it emerges that

The Supreme Court is not bound to follow a decision of the ECtHR .

The decisions of the ECtHR are of persuasive effect because they come f rom a n authoritative source and from a Court whose rulings are acknowledged by statute. Indeed, s. 2(1) of the Human Rights Act 1998 expressly provides that a court or tribunal determining a question which has arisen in connection with a Convention right ‘ must take into account’ a judgment or decision of the ECtHR . The obligation is absolute , ‘ must ’ , but the nature of the obligation is to take it ‘ into account ’, not necessa ril y to apply it.

However, a different approach is called for on the part of the Supreme Court when there has been a clear and constant line of authority but only if it is consistent with United Kingdom law (or at least some ‘ fundamental substantive or procedural aspect ’ of it ) or the decision of the ECtHR is not flawed in a material way.

It is, therefore , a somewhat limited duty to comply with the ECtHR at least on the part of the Supreme Court . It suggests that the ECtHR must be followed (‘ would be wrong not to follow ’) but only if it is consistent with United Kingdom law. It raises the question of whether there is the need to follow the ECtHR , if the principle is already enshrined in the United Kingdom ’s domestic law.

The ECtHR ’s own statements as to its role speak of a subsidiary one, at least when it comes to implementation . For example, in paragraph 184 of Paposhvili we find:

Whilst the statements of principle set out in Manchester City Council v Pinnock are directed towards the Supreme Court’s own approach to decisions of the ECtHR , they shed light on how the Tribunal is to approach such decisions. They say, nothing, of course, to the effect that the Tribunal is to apply decisions of the ECtHR which are not consistent with United Kingdom domestic law, including decisions of the Court of Appeal.

For the reasons that have emerged from the foregoing, if the decision in Paposhvili is part of a continuum of developing jurisdiction on the part of the ECtHR consistent with the United Kingdom ’s domestic law, it should be followed. In order to determine this, it is necessary to look at the decision of Paposhvili itself.

The ECtHR identified a clear an d consistent line of authority in paragraph 179 of Paposhvili :

The only decision identified by the ECtHR as running counter to these decisions is the decision in Aswat v United Kingdom (2014) 58 EHRR 1. This was a case that, on its facts, was highly unusual, not to say exceptional . It was an extradition case in which the United Kingdom authorities intended to comply with the US government’s request to extradite him to stand trial for terrorist offences. T h ere was inadequate information about the pre-trial period, the length of time the applicant would be detained pending trial, the consequences for the applicant if he was found to be unfit to stand trial. The applicant himself was suffering from paranoid schizophrenia and was detained in the United Kingdom in Broadmoor. It was argued that he would face a sentence of up to 35 years imprisonment. Although this, in itself, would not be grossly disproportionate in view of the nature of the alleged offences, there was a real risk that his extradition and detention would include a move to a different and more hostile prison environment resulting in a serious deterioration in his mental and physical health capable of reaching the A rticle 3 threshold. He could be detained in a maximum security facility and subject to special administrative measures including solitary confinement. The Court determined that whether or not the applicant’s extradition to the United States would breach A rticle 3 of the Convention very much depended upon the conditions in which he would be detained and the medical services that would be available to him . There was much uncertainty and the US Department of Justice had given no indication of what conditions would be like. It is perhaps unsurprising that these circumstances amounted to an Article 3 violation, not on health grounds alone (although these featured to a significant extent), but arising from conditions in US detention facilities which were largely unascertained.

The ECtHR ’s intention in the case of Paposhvili is revealed in paragraph 181 :

What then follows, therefore, is a departure from the clear and constant case law identified by the Court in paragraph 179 . This is performed according to paragraph 182, by the C ourt using its interpretative powers to render the Convention rights in a way that is ‘ practical and effective and not theoretical and illusory ’ . Whilst this was, of course, an entirely proper approach to be adopted by the ECtHR , there is no doubt that it was an extension of earlier jurisprudence and a departure from it . Furthermore, in seeking to depart from the decision in N v UK [2008] EHRR 39 it extended the princip le in a way we have already identified so as to include situations involving the removal of a seriously ill person in respect of whom ‘s ubstantial grounds had been shown to believe in 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 serious rapid and irreversible decline to his or her state of health resulting in intense suffering or a significant reduction in life expectancy ’, (‘the Paposhvili test’) . As is made plain by the reference to the earlier case law in paragraph 179, the ECtHR was departing from its own case law as established in N v U K that such claim s were inadmissible, as being manifestly ill founded.

Paposhvili is an example of the ECtHR departing from the clear and constant line of authority and, as we shall later observe, result ed in a decision that is not consistent with United Kingdom domestic law. T his is most clearly seen from the analysis that is provided by the Court of Appeal in GS ( India ) [2015] 1 WLR 3312 to which we will return later . It is at this stage that we turn to consider the effect of the decision on the jurisprudence affecting health cases in England and Wales .

In Kay & Anor v. London Borough of Lambeth & Ors [2006] UKHL 10 the House of Lords considered the case of a group of gypsies whose caravans who occupied land without a licence permitting them to do so but alleged that the claim for possession against them violated th e ir human rights. The H ouse of L ords had no doubt, although domestic courts were not strictly required to follow the ru lings of the European Court of Human Rights th at th ey were obliged to give p ractical recognition to Article 8 which necessitated a constructive collaboration between the Strasbourg C ourt and the national authorities. In doing so, it was for the domestic courts to determine initially how the principles were laid down. It was here that the role of precedent came into play. It was a cornerstone of the domestic legal system by which a degree of certainty in legal matters w as best achieved . J udges could give leave to appeal where they considered binding precedent was inconsistent with Strasb ou rg authority. The question arose whether the United K ingdom domestic rules of precedent should be modified and whether a C ourt should no longer be bound to follow a decision of a higher C ourt if it appeared to be inconsistent with the ruling in the court in Strasbourg. This question is set out in paragraph 40 of the opinion of Lord Bingham of Cornhill. In paragraph 43, he determined that issue by reference to establish ed case law that a degree of certainty w as best achieved by adhering, even in the context of an inconsistency with the Convention to the United Kingdom ’s rules of precedent. Whilst the duty to comply with the proper application of an individual’s Convention rights was not derogable , that duty w ould be discharge d if, in an appropriate case, the grant of permission to appeal were made. Lord Bingham, however, concluded by saying:

H ence, the determination of this preliminary issue depends upon whether the decision of the Court of Appeal in GS ( India ) [2015] 1 WLR 3312 operates as a binding precedent upon the Tribunal. Inevitably, this requires us to give consideration to the reasons that the Court of Appeal provided based upon it s understanding of the relevant decisions in the House of Lords in D v United Kingdom [1997] ECHR 30240/96; N v Secretary of State for the Home Department [2005] 2 AC 296 and N v United Kingdom (2008) EHRR 39.

Th e starting point in this part of the analysis is found in paragraph 50 of the decision of L aws LJ t o which Sullivan LJ gave his agreement. Although both Underhill and Sullivan dec lined to consider the Article 8 claims in respect of the three appellants as a matter of discretion rather than on the basis of a lack of jurisdiction , t his difference of opinion has no bearing on the judgment of Laws LJ on the matter relevant to our consideration.

The six appellants , all foreign nationals, were being treated in the United Kingdom for serious medical conditions. The Court of Appeal approach ed A rticle 3 by reference to the paradigm case of a breach of A rticle 3 being an intentional act by the state which constituted torture or inhumane or degrading treatment or punishment. Accordingly, the case of a person whose life would be foreshortened by the progress of natural disease if removed to his home state did not fall within the paradigm unless justified by a pressing reason to hold the state responsible for the claimant ’ s plight. Such an exception was justified in deathbed cases where the person’s illness had reached such a critical stage that it would constitute inhuman treatment to deprive him of the care he was currently receiving. In essence, the exception, referred to as the ‘D exception ’ arising from D v United Kingdom [ 1997 ] 24 EHRR 423 arose from what is surely the repellent prospect of a dying man forced onto an aircraft with the prospect of his death inevitable unless adequate care was in hand to enable him to die with dignity. It would be truly shocking if a state felt itself able to behave in such a way.

Such a circumstance was an extension of , or an exception to , the Article 3 paradigm of a person being subjected to an intentional act by the state which constituted torture or in human or degrading treatment or punishment. Hence, L aws LJ asked the question, in paragraph 50 of his judgment:

Laws LJ then set out paragraphs 42 to 45 of N v United Kingdom (2008) 47 EHRR 39 which is the section in the judgment entitled ‘ The principles to be derived from the case law ’ which we repeat here:

Laws LJ then went on to consider the associated case law as set out in MSS v Belgium & Greece (2011) 53 EHRR 2 , Sufi & Elmi v UK (2012) 54 EHRR 9 , SHH v UK (2013) 57 EHRR 18 and Tarakhel v Switzerland (Application No. 29217/12) . H aving examined these cases , he concluded in paragraph 62 that the jurisprudence upon Article 3 to be derived from them did not extend the reach of the departure permitted in D ’s case. Accordingly, he concluded in paragraph 63 that these cases cast no significant light on the approach to be taken by the Court of Appeal to the binding authority of N v Secretary of State for the H ome Department (Terence Higgin s T rust intervening) [2005] 2 AC 296 to which he then turned.

Laws LJ then recorded the crucial opinions of Lord Nicholls, Lord Hope and Baroness Hale. Once again, these passages must be set out in full:

T hese citations represent the authoritative statement of United Kingdom domestic law. They are also consistent with, and an application of , the clear and constant line of authority of the ECtHR prior to Paposhvili . The words of Baroness Hale, set out above, permit no departure from the ‘ D exception’, that is , the death bed threshold.

More importantly, for our purposes, they underpin the reasons for the Court of Appeal’s decision in paragraph 66 in answer to the question Laws LJ had earlier asked himself in paragraph 50:

This is a binding precedent and the Tribunal is bound to follow it. It is not, as Ms Chapman suggested, a careless slip of the pen on the part of Laws LJ which the other judges overlooked and what he meant to say was that the D exception contained within it another category of cases that a decision maker might find exceptional. Indeed, there would be very little purpose in mentioning ‘ deathbed cases ’ if what he meant to say was ‘ exceptional cases ’ of which, of course, a deathbed case would undoubtedly be one.

It is not permissible for the Tribunal to depart from th is authorit y and, in particular, cannot do so by reliance upon the Paposhvili enlargement set out in paragraph 183 of the ECtHR’s judgment (see paragraph 6 above) . Hence, the recasting of Article 3 to include ‘ 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 ’ is not part of United Kingdom domestic law.

Furthermore, there is an internal logic in setting the threshold very high. Ms Chapman took forensic offence to the emotive language contained in paragraph 20 of Mr Hansen’s skeleton argument in which he quoted the expression that the parties to the Convention, including the United Kingdom, cannot be turned into ‘ hospitals for the world ’ . However, avoiding any emotive language, if the effect of a lowered threshold is to impose a burden that is disproportionate upon the receiving state such that it damages its own efforts to provide healthcare, accommodation and services then that disproportionate effect can properly be taken into account in construing what is meant by the humanitarian obligation not to cause suffering. Ms Chapman submitted that if th is is what is the nature of the obligation imposed by Article 3, then it matters not whether the effect is a burden too great to bear. We agree. But this begs the question as to what is the nature of the obligation. If the invaluable scheme of humanitarian protection is to operate, it must be made to work . It can and does work if a high threshold is maintained. Conversely, if the demands upon it cannot be met, it will not work. Further, it runs the risk of becoming arbitrary if the threshold is over - elastic and ill-defined. That is precisely why the Supreme Court and the Court of Appeal set the threshold at a level which is both high, intelligible and ascertainable, thereby avoiding the injustice of a test which is as long as the judge’s sleeve.

Whilst, for the reasons we have given, 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, it may in the event add very little to the debate, useful as it is in enlarging our understanding of these complex humanitarian issues. After all, the ECtHR concluded that the threshold was a high one with no suggestion it might become a routine argument based on disparities between healthcare – and access to it -across the world.

Our decision is consistent with the decision of Lavender J in Ismailov v Secretary of State for the Home Department (JR/3660/2016) to which we were referred by Mr Malik in fulfilment of his duty to the Tribunal to refer us to other relevant cases. In Ismailov , Lavender J accepted Mr Malik’s submissions made on behalf of the Secretary of State that GS (India) operated as a binding precedent permitting the Secretary of State to certify the claim as ‘clearly unfounded’.

I n EA’s case, from paragraphs 30 to 36, the First-tier Tribunal Judge considered the case law in A rticle 3 cases solely by reference to Paposhvili and co n cluded that the case law contained within the decisions of the Supreme Court deprived aliens who were seriously ill but whose condition was less than critical of the benefit of the provisions of Article 3. That suggests that the First-tier Tribunal considere d the UK jurisprudence including decisions of the Supreme Court and concluded these decisions were wrong in law as potentially violating the human rights of those concerned by limiting the application of Article 3 . In paragraph 36 he went on to find that , as a result of Paposhvili , the application of D and N principles

There are two matters that are immediately apparent. First, the determination contains no discussion as to the approach that has to be adopted to decisions of the E CtHR in cases which appear to run counter to decisions of the House of L ords or the Supreme Court. Second, the decision which was made on 31 March 2017 makes no reference to the decision in the Court of Appeal in GS ( India ) and its potential effect as a matter of judicial precedent.

This has inevitably skewed the Article 3 assessment, the sole ground on which the appeal was allowed by the First-tier Tribunal Judge.

In the course of the hearing, we invited Ms Chapman to consider whether , on the basis of our findings on the preliminary issue, we should list the appeal for further hearing to consider whether the determination contained a material error of law. S he was content that we go on to consider that issue on the basis of the findings made by the judge and her submissions. We are satisfied that, as a result of our decision on the preliminary issue, there is no arguable case that the appellant can put forward in support of the First-tier Tribunal ’s approach both as to error and the materiality of the error . In these circumstances, we allow the appeal of the Secretary of State and set aside the decision of the First-tier Tribunal .

In the course of the hearing w e raised the practical effect of a remittal to the First-tier Tribunal . Such an order ends the Upper Tribunal’s jurisdiction in the appeal. In accordance with the decision of AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (11 July 2017) the appellant is permitted , if so advised, to appeal the Upper Tribunal ’s decision without having to a wait the outcome of the remaking of the decision by the First-tier Tribunal . This distinguishes the case of VOM (Error of law when appealable) Nigeria [2016] UKUT 410 (IAC) wh ere the Upper Tribunal decides to re-make the decision itself. A successful application to the Court of Appeal would operate as a stay on the appeal before the First-tier Tribunal. Such a remaking would, in accordance with our findings and as things presently stand , be conducted on the basis that the Paposhvili principle has no application in light of the Court of Appeal’s decision in GS (India). Were we to be wrong on this issue, the remaking of the decision would then have become a wasteful exercise. Were an application to be made for permission to appeal to the Court of Appeal, we would be minded to grant permission to appeal.

The Upper Tribunal has already found an error on a point of law in the First-tier Tribunal’s determination in M O ’s appeal and set aside the First-tier Tribunal Judge’s decision dismissing the appeal on Article 3 grounds and allowing the appeal on Article 8 grounds. The further disposal of the appeal was adjourned . We remit the case to the First-tier Tribunal for it to be re-made. Once again, the effect of this direction is to permit the appellant to appeal to the Court of Appeal without having to await the outcome of the re-making of the decision. Suffice it to say that , without a viable Article 3 claim based on health grounds, the appellant’s claim to remain on the basis of Article 8 as found by the First-tier Tribunal is not adequately reasoned. It fails to take into account the limitations in the operation of Article 8 in health cases identified by Underhill LJ in paragraph 111 of GS ( India ) :

We see no material that the First-tier Tribunal Judge identified in paragraphs 47 to 57 as amounting to additional factors that weighed in the balance of the sort envisaged by the Court of Appeal.

The Secretary of State has agreed – and we place that agreement on record - that the appellant should have been granted leave under paragraph 10 of Appendix B. If this has resulted in the grant of further leave to remain, this may already have operated to require the appeal to be treated as abandoned by operation of law, s.104 of the 2002 Act. However, we dismiss the appellant’s appeal against the finding that Mr Rashid’s circumstances were not such as to meet the high threshold set in D and N . As the First-tier Tribunal Judge properly found, absent a successful Article 3 health claim, there was no room for the appeal to succeed under Article 8.

EA: The determination of the First-tier Tribunal revealed an error on a point of law and we remit the appeal to the First-tier Tribunal for it to be re-made.

O : The determination of the First-tier Tribunal revealed an error on a point of law and we remit the appeal to the First-tier Tribunal for it to be re-made.

Rashid and Ashrifin: By concession, the appeal is allowed under the Immigration Rules.