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Strasbourg revisits approach to serious illness, medical treatment and Article 3

Strasbourg revisits approach to serious illness, medical treatment and Article 3

On 13 December 2016, the Grand Chamber handed down its much-awaited decision in Paposhvili v Belgium (Applcn No. 41738/10). The decision: (1) clarifies, widens and provides guidance on the circumstances in which an alien suffering from a serious illness can resist removal under art 3 ECHR; and (2) gives rise to serious questions as to whether the present UK jurisprudence is in step with the standards set in Strasbourg.

The circumstances of the case

The Applicant, Mr. Georgie Paposhvili, was a Georgian national, born in 1958, who had been living in Belgium with his wife and children, from November 1998. He claimed (and was refused) asylum in Belgium. From December 1998, the applicant committed a number of criminal offences for theft, robbery with violence and deception. In November 2005, he was sentenced to three years’ imprisonment.

In 2006, while the applicant was in prison, he was diagnosed with chronic lymphocytic leukaemia. In February 2008, it was reported that the condition was life-threatening and the applicant’s life expectancy was put at between three and five years. His illness continued to deteriorate after that time. The applicant also had pulmonary tuberculosis which became active again during 2008 and, in 2006, he was diagnosed with hepatitis C. Further, the applicant’s left arm was paralysed as the result of a stroke.

The applicant claimed that his expulsion to Georgia would put him at risk of inhuman treatment contrary to article 3. His contentions were (see at §§139-149, 194-197):

  • his leukaemia had reached the most serious stage requiring regular monitoring in a specialised setting;
  • his condition was further weakened by repeated secondary infections;
  • the treatments that he received (including the drug Ibrutinib) and hoped to receive, were expensive;
  • as soon as his overall condition permitted, it was planned to treat him with donor stem cell transplant (his only hope of cure – provided it was carried out within a short time-frame);
  • if the treatment presently being administered was discontinued, his life expectancy would be less than 6 months;
  • neither the treatment that he was receiving in Belgium, nor the donor transplant treatment was available in Georgia;
  • as to the other forms of leukaemia treatment that were in principle available in Georgia, there was no guarantee that the applicant would have access to them on account of shortcomings in the Georgian social insurance system.

The applicant complained under arts 2 and 3 of the ECHR, requested the Court to go beyond its findings in N v UK and to define a realistic threshold of severity that was no longer confined to securing a “right to die with dignity”, asserting that the Belgian courts had already distanced themselves from N and afforded more extensive protection. The applicant also pointed to his family circumstances in Belgium, together with his health situation, and raised a complaint under art 8.

The applicant died in Brussels on 7 June 2016 while his case was pending before the Grand Chamber. However, the Court decided not to strike his application out of the list. It recounted that although the primary purpose of the Convention system is to provide individual relief “its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights” and that, in the present case, there were “important issues at stake” concerning the expulsion of aliens who are seriously ill. Thus the Grand Chamber found that there were “special circumstances” which required it to continue the examination of the application in accordance with Article 37(1) (§§130-133).

The pre-existing Strasbourg case-law

In D v UK (1997) 24 EHRR 423, the ECtHR accepted that in “very exceptional circumstances”, it could consider a claim under art 3 where the source of the risk derived from a naturally occurring illness, rather than from factors engaging the responsibility of the receiving state (§§49, 53, 54). D was a ‘deathbed’ case in which a violation of art 3 was found. The “exceptional circumstances” inhered in the proposed removal of a person suffering from Aids, where he risked exposure to death under the most distressing circumstances without guarantee of any nursing, medical, family or social support (§§52-54).

The next land-mark Strasbourg case was N v UK (2008) 47 EHRR 885 [GC]. N was also living with Aids but, as a result of the antiretroviral treatment she was receiving in the UK, he conditions was not critical (§47). The rapidity of her deterioration if returned and the extent to which she might obtain treatment there involved a degree of speculation particularly given the evolving situation with regard to the treatment of Aids worldwide (§50). Neither the inferiority of treatment, nor the fact of a significant reduction in life expectancy, constituted “exceptional circumstances” (§42) and no violation was found (§51). In D and N, the ECtHR repeated that aliens who are subject to expulsion cannot in principle claim an entitlement to remain in order to continue to benefit from medical, social or other forms of assistance (D at §44, 54; N at §42).

A strong dissenting opinion given in N was picked up in Mwanje v Belgium (2013) 56 EHRR 1140, in which a joint partially concurring opinion of six judges applied N, but expressed the view that the extreme threshold was “hardly consistent with the letter and spirit of article 3” and hoped that the court “may one day review its case law in this respect”.

Decision of the Grand Chamber in Paposhvili

Paposhvili fulfils the aspiration for a positive review expressed in Mwanje. The Grand Chamber first observes that, notwithstanding that in N (at §43), the ECtHR had left open that, in addition to circumstances in D (in which death was imminent), there may be other exceptional cases where the considerations were equally as compelling, an examination of the jurisprudence since N revealed no such examples (§§178-179). Accordingly, the effect since N had been to deprive aliens, who are seriously ill, but whose condition is less critical, of the benefit of art 3. The ECtHR had not provided detailed guidance as to the “very exceptional” cases referred to in N thus it was necessary to clarify the correct approach (§§181-182).

Accordingly, the Grand Chamber held (§183):

“… that the “other very exceptional cases” within the meaning of the judgment in N v the United Kingdom (§43) which may raise an issue under Article 3 should be understood to refer to situations 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. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness”

The above constitutes the key guidance given by the Court for future cases. Very significantly the Grand Chamber has lifted the restrictive practice applied by the Court since N. It is now clear that non ‘deathbed’ health cases may be “very exceptional” where there is a risk of a decline of the quality described which either results in “intense suffering” or a “significant reduction in life expectancy”.

In addition to this re-calibration of the overall test, the Grand Chamber, made the following further significant points including as relevant to procedural protections:

  • Although it is for applicants to adduce evidence to show the risks they face, there is a certain degree of speculation inherent in the preventive purpose of art 3 such that it is “not a matter of requiring the persons concerned to provide clear proof of their claim” (§186) (contrast the approach to speculation in N at §50).
  • Where such evidence is adduced, it is for the authorities of the returning state to dispel any doubts raised by it (§187) and to verify whether the care generally available in the receiving state was sufficient and appropriate in practice (§189).
  • The state must also consider whether the person will actually gain access to what facilities are available having regard to accessibility, cost, the existence of a social and family network and distances to be travelled (§190).
  • Where serious doubts remain, the returning state must, before removal, obtain individual and sufficient assurances from the receiving state as to access to appropriate treatment (§191; see further Tarakhel v Switzerland at §120).
  • Where the return is to an ECHR contracting State, the preventive duty of the returning State under art 3 is not excluded on the basis that the applicant could apply to the ECtHR after their return (§193).

The Grand Chamber has nevertheless re-iterated that: the bench-mark for what care is “sufficient and appropriate” is not that which exists in the returning State; the exercise is not one of conducting comparisons; there is no right to specific treatment in the receiving state which is not generally available; and there is no obligation on the returning state to alleviate disparities between its health-care system and those overseas (§§189, 192). The only question is whether the act of removal will expose the applicant to an art 3 risk as described in the guidance given above (§192).

In Paposhvili’s instant case, the Grand Chamber found a violation of art 3 because the Belgian authorities had failed to conduct any assessment of the risks in the light of the information concerning the applicant’s state of health and access to treatment in Georgia (§205). The failure to comply with the procedural obligation also led to a violation under art 8 (§224). The Court found it unnecessary to examine the complaint under art 2 (§207).

Impact of Paposhvili upon UK jurisprudence

In the end-stage kidney disease / dialysis cases, GS (India) v SSHD [2015] 1 WLR 3312, the Court of Appeal found that the departures from the art 3 “paradigm” of an “intentional act” constituting treatment contrary to art 3 (§39), were circumscribed. In the other ‘non-intentional act’ cases (MSS v Belgium and Greece (2011) 53 EHRR 28 [GC] – breach of legal duties regarding reception of asylum-seekers; Sufi & Elmi v UK (2011) 54 EHRR 209 – crisis in Somalia caused by the nature of the internal conflict) where art 3 was engaged, there existed “very pressing reasons to hold the impugned state responsible for the claimant’s plight”. But in a health case, the boundaries for departure from the paradigm were strictly set by D and N (§§62-63).

As a result, the Court of Appeal in GS adhered strictly to the approach of the House of Lords in N v SSHD [2005] AC 296 (Lord Nicholls at §15; Lord Hope, §36; Baroness Hale, §69), declaring that the “D exception is confined to deathbed cases” (§66).

It follows from the above analysis of Paposhvili, that if the approach in the UK is to remain in step with Strasbourg, the decision in N v SSHD (or certainly its application in GS (India)) will need to be re-visited.

Duran Seddon

Duran is a barrister at Garden Court Chambers. He has been involved in a range of high profile, significant cases over many years, including at the Supreme Court. He is the main author and editor of JCWI’s Immigration, Asylum and Nationality Handbook of JCWI’s Guide to the Points Based System.

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