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A New Approach in Health-Based Cases


This is a brief overview of the impact of the April 2020 Supreme Court decision in AM (Zimbabwe) (known as AM). This decision is a welcome change from previous precedent set down in the case of “N”.

AM, like N before it, deals with possible human rights breaches when removing seriously ill foreign nationals from the UK. The key changes between AM and N are set out below:

 

 The old position under NThe new position under AM
A person’s human rights will be breached if:

 

Their death is imminent; or there is no treatment at all in the country of return.There will be a serious, rapid and irreversible decline in their health leading to intense suffering.

A person’s ability to effectively access treatment is now a consideration.

A person’s human rights will not be breached if:

 

There is some treatment available in the country of return; and they are not facing imminent death.  Whether the person would actually be able to effectively access treatment is not a consideration.The Home Office can show, or if the person fails to establish in the first place to a standard of proof below balance of probabilities, that they will not face intense suffering in the country of return.
Evidence required to support an application:

 

Detailed medical reports commenting specifically on the imminence of the person’s death.Detailed medical reports detailing the treatment received in the UK, the availability of treatment in the country of return and the likely effect on the person if their treatment is stopped or become unavailable. Reports from the treating clinician and a country expert would be best used in conjunction.

 

As immigration lawyers, we often help clients who have poor mental or physical health. Coming to, and remaining in, the UK can be difficult and stressful. It takes a toll on many who wish to make the UK their home. Some of our clients have really serious health problems; they would likely die if they didn’t receive regular, life saving treatment.

Since 2005, it has been incredibly difficult to remain in the UK on grounds of ill health alone.  N was decided by the House of Lords (now the Supreme Court) and was therefore binding on all other courts in the UK. The Judges in N had to wrestle with an incredibly difficult question – “How ill does someone need to be before their basic human rights will be breached if they were removed?”.

One of the difficult things about the decision in N is that it did not account for the practicalities of accessing treatment. In the UK, the NHS is free at the point of use. In many other countries, medical treatment is cripplingly expensive. Furthermore, the NHS generally has an excellent ratio of clinical staff to patients. In other countries, a single psychiatrist might deal with 200,000 mental health patients. A client who stood no chance of actually accessing treatment in their home country, because of cost or numbers of clinicians to patients, would still fail if there was at least some treatment available in that country.

The case of AM now endorses the approach of the European Court of Human Rights in the case of Paposhvili. A succinct summary would be to say that the test under N focused on a person’s imminent death if removed from the UK.  The new test under AM, based on Paposhvili, focuses on the risk of a person’s serious and rapid decline in health leading to intense suffering.  Personal factors, such as age, come into play for the first time.

This is by no means an easy test to meet but it is much easier than that in N. It is, overall, a very welcome decision from the Supreme Court.