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Split human rights court suggests lower threshold for resisting removal on medical grounds

Split human rights court suggests lower threshold for resisting removal on medical grounds

In Savran v Denmark (application no. 57467/15) the European Court of Human Rights has reinforced the importance, in Article 3 medical treatment cases, of the obligation on governments to obtain assurances where there is any doubt as to the impact of removing a seriously ill migrant to another country. 

The decision may also represent a significant lowering of the threshold for a violation of Article 3 in these cases, as set out in Paposhvili v Belgium (application no. 41738/10), but the court’s refusal to address the issue head-on will create significant difficulties for domestic courts trying to interpret this line of jurisprudence. The majority here brushed lightly past the question of what constitutes “a serious, rapid and irreversible decline [in the applicant’s] state of health resulting in intense suffering” (the test in Paposhvili), as a dissenting judgment pointed out. 

Background

Arif Savran is a Turkish national, born in 1985. He has lived in Denmark since 1991, when he was six years old and arrived with his mother and four siblings to join his father. In 2001 he was convicted of robbery, and in 2006 he committed a further offence of assault under “highly aggravating circumstances” (the victim died).

Following this latter conviction Mr Savran was ultimately sentenced to committal to forensic psychiatric care and to be expelled from Denmark with a permanent ban on re-entry. He was diagnosed with paranoid schizophrenia, mild intellectual disability, and cannabis dependence. The evidence before the court showed that:

  • The applicant had no social or family network in Turkey;
  • There was a high risk of failure of treatment and a worsening of the applicant’s psychotic symptoms if he did not receive sufficient follow-up and intensive outpatient therapy when discharged;
  • He needed to undergo regular blood tests as the drugs with which he was being treated could cause an immune disorder;
  • There were doubts about whether the applicant had a real possibility of receiving the necessary follow-up if returned to Turkey.

Mr Savran accordingly argued that his expulsion would be in breach of Article 3 of the European Convention on Human Rights.

Application of Paposhvili

Intense suffering

Following the test in Paposhvili, the court defined the test of whether a violation of Article 3 would occur as being a question of whether, if the applicant were unable to receive appropriate treatment in Turkey, he “would be exposed to a serious rapid and irreversible decline in his state of health, resulting in intense suffering” (paragraph 60). But it then said nothing about whether the applicant’s circumstances met such a test.

The court later found that the applicant was “suffering from a serious and long-term mental illness, paranoid schizophrenia, and permanently needs medical and psychiatric treatment” (paragraph 63). But at no point did it explicitly determine that should he not receive such medical and psychiatric treatment, the consequences would be such as to meet the test set out in Paposhvili. We are left to assume that it does. 

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This failure does not go unnoticed in the dissenting opinion. Three of the seven judges deciding the case criticised the four in the majority for having “seized the first available opportunity to further broaden the scope of Article 3 in this sensitive area”. They pointed out that the Grand Chamber had deliberately kept the terms of Paposhvili narrow, adding that the majority should have “relinquished jurisdiction in favour of the Grand Chamber” (paragraph nine, joint dissenting opinion).

There is considerable force to these objections. There was no evidence in the judgment itself that seems to me to meet the test in Paposhvili. There was evidence that were the applicant to receive inadequate treatment in Turkey he could resume substance abuse, have aggravated psychotic symptoms and become more aggressive. It is also implied that he could risk an immune condition, though the consequences of this are not clearly set out.

This is very far indeed from the deathbed cases that for so long typified this area of law, and also from Mr Georgie Paposhvili, who was so ill he died while his case was pending before the Grand Chamber. 

Assurances

In allowing the application, the court relied on the following points:

  • That even though there was no medical evidence on this point, the court could not ignore the impact of the absence of any social or family networks in Turkey and this made it all the more important that he be provided with the necessary follow-up treatment (paragraph 63);
  • “That it is unclear whether the applicant has a real possibility of receiving relevant psychiatric treatment, including the necessary follow-up and control in connection with intensive outpatient therapy, if returned to Turkey” (paragraph 65);
  • That where there are “serious doubts as to the impact of removal on the applicant” the returning state must either dispel the doubts, or obtain “individual and sufficient assurances from the receiving State” as to the appropriate treatment being “available and accessible to the persons concerned” (paragraph 66).

What is happening in the UK?

The Court of Appeal has taken a very cautious view of the Grand Chamber judgment in Paposhvili. The Supreme Court will have an opportunity to weigh in when it hears the appeal to the Court of Appeal decision in AM (Zimbabwe) [2018] EWCA Civ 64 at the beginning of December.

Meanwhile practitioners should continue to be assiduous in gathering relevant medical evidence about the consequences to their clients’ health if returned, the existence or otherwise of social or family networks in the receiving state, and the practical ability of their client to access what healthcare is available.

Bear in mind that, where evidence cannot be gathered, leaving uncertainty as to the impact of return, there is a positive duty on the Home Office to make inquiries and, if necessary, obtain specific guarantees that address that doubt.

Chai Patel

Chai Patel is Legal & Policy Director at the Joint Council for the Welfare of Immigrants (JCWI). Chai joined JCWI in 2015. Prior to that he was in the Human Rights department at Leigh Day, working on abuse and human rights claims, and on the death penalty team at Reprieve, focussing on international strategic litigation, casework, and investigation.

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