2020 05 MAY
Article 3 of the European Convention on Human Rights prohibits torture, and inhuman or degrading treatment or punishment.
Generally, Article 3 arguments can be raised by an individual in the cases where a person is claiming Asylum under the Refugee Convention of 1951. However, Article 3 arguments are also raised in medical cases. For Example – a person is suffering from an illness for which there is no treatment in their home country, and therefore they apply on the basis that removal, deportation to their home country would result in a breach of Article 3.
Where a person is suffering from such an illness and has a family in the UK, they can also raise Article 8 arguments for breach of family life.
The recent development from the case of AM (Zimbabwe) V. Secretary of State for the Home Department [2020] UKSC 17 has offered great hope for migrants who are seriously ill and are facing deportation.
The facts of the AM (Zimbabwe) included a Zimbabwean national who had been present in the UK for 20 years and had committed several criminal offences, including possession of a firearm for which he was also sentenced to 7 years.
Generally, criminal offences of this nature fall for automatic refusal under the general grounds of refusal provided under Part 9 of the Immigration Rules. However, the individual had aided, and the drug is provided by NHS in the UK was not available in Zimbabwe, which meant that he would not receive an effective treatment which would result in his untimely death.
The Supreme Court in the UK found the past approach in the case of N v SSHD [2005] UKHL 31 was an extremely difficult to meet and the person would need to be on a death bed to secure his/her immigration status in the UK.
The Supreme Court has held that the correct test in such Article 3 cases is to be adopted from Paposhvili V. Belgium, Application No. 41738/10, 13 December 2016, where the ECtHR held – Article 3 would be breached in circumstances
“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”. – Paragraph 183
The burden of proof still rests on the applicant and the evidence which would discharge such burden to prove that their medical records confirm that their illness is true of such a nature that it would amount to a breach of Article 3 if they are returned to their home country.
Immigration law will keep developing with new judgements from the ECtHR and the Supreme Court would lay new tests and approach to be followed, however, for now, Paposhvili will be an authority for Article 3 cases.
If you are looking for UK Immigration Advice and representations contact Visa and Migration on +44 (0)2034111261
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