Deportation - ill health

The appellant Zimbabwean, who had HIV, appealed against the dismissal of his appeal, concerning the respondent Secretary of State’s refusal to revoke a deportation order made against him, following his conviction of criminal offences. He alleged, before the Court of Appeal, Civil Division, that his deportation would be in breach of art 3 of the European Convention on Human Rights due to the unavailability of antiretroviral treatment in Zimbabwe.

The Supreme Court, in allowing the appeal, held that there was no question of it refusing to follow Paposhviliv Belgium[2017] ECHR 41738/10, concerning applications under art 3, in the light of which it should depart from the decision in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening)[2005] 4 All ER 1017. The court ruled that the Court of Appeal had erroneously interpreted the words ‘significant reduction in life expectancy’ in Paposhvili to mean a real risk of either intense suffering or imminent death in the receiving state.

The court held that the word ‘significant’ in that context meant, a ‘substantial’ reduction in life expectancy, and that the applicant had to adduce evidence capable of demonstrating that there were substantial grounds for believing that art 3 would be violated. The court further held that the Court of Appeal’s conclusion about the insufficiency of two medical reports, which the appellant had submitted to the First-tier Tribunal (Immigration and Asylum Chamber) in support of his claim under art 8 of the Convention, had been flawed, and that it had been inappropriate to have extracted those medical reports from the other evidence submitted in furtherance of the art 8 claim and to have asked whether they had crossed the threshold required of an applicant under art 3.

The appellant’s art 3 claim was remitted to the Upper Tribunal (Immigration and Asylum Chamber).

The judgment is available here 

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