Can seriously ill persons be returned to their home country?

by Caoimhe Flanagan on Jun 9, 2020

The judgement delivered by the Supreme Court on 20th April 2020 in AM (Zimbabwe) v SSHD [2020] UKSC 17 provided long awaited clarity on the correct threshold to be applied when considering a breach of Article 3 ECHR in cases concerning the return of seriously ill persons to their home country. Article 3 is an absolute right prohibiting inhuman and degrading treatment in all circumstances. This means that the state must not act in such a way that would result in a breach of this obligation.

In this case AM, who is a national of Zimbabwe and suffered from HIV, argued that any removal from the UK would breach his Article 3 rights due to inadequate access to medical treatment upon his return. He argued further that such insufficient care would result in a relapse causing his condition to worsen into AIDS.

The Supreme Court overturned the decision of the Court of Appeal who had held that the threshold of a breach was only met ‘if intense suffering or death was imminent.’ This was deemed “unduly narrow” and mistakenly interpreted from ECtHR’s judgement. The Supreme Court ruled that applicants in such cases must instead demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. Once the applicant has evidenced this then the burden shifts to the SSHD to challenge or counter it. The court outlined that each case must be considered individually and on a case by case basis and consideration should be given to a number of conditions. These include access and availability of treatment, any assurances of treatment and the support available to the individual if returned.

This case marked a departure from the long held judgement of N v Secretary of State for the Home Department and provided guidance on how Paposhvili v Belgium should be applied by English courts. Lord Wilson ruled: "there is no question of our refusing to follow the decision in the Paposhvili case … In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart."

The Supreme Court unanimously allowed the appeal.