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Staying in the UK on the basis of medical grounds

For Applicants

Some applicants wish to remain in the UK for extremely serious medical conditions.  A person may become sick once in the UK and become dependent on treatment in the UK.  Health conditions in the UK, even if a person would die soon after return to their home country without treatment have been found not to meet the high threshold set by the courts in meeting Article 3 ECHR. 

Article 3 ECHR states:

Article 3 – Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 3 is what is known as non-derogable right.  That means, that if it is found that there would be a breach of Article 3 on return to a country, then no-matter how abhorrent the person, or their previous acts, they cannot be returned to a country where there would be a breach of Article 3 ECHR.

What does immigration case-law history

The case-law history in medical healthcare cases is somewhat hard reading.  The European Court of Human Rights (ECHR) decided in D v United Kingdom (1997) 24 EHRR 423  that it would be a breach of Article 3 ECHR to return D who suffered from advanced stage AIDS to his home country.  Subsequently, in N v United Kingdom (2008) 47 EHRR 39 D was distinguished and it was found that the circumstances in which D existed, that was returning to street homelessness with no family, were not matched in N.  It was found that whilst life would be much shorter, N could still be returned. 

What about the Court of Appeal

The Court of Appeal’s stance in GS (India) [2015] EWCA Civ 40 was no less harsh and concluded that a case that didn’t meet the threshold in Article 3, couldn’t meet the same threshold by relying on Article 8 ECHR.  In  Paposhvili v Belgium [2016] ECHR 1113 a glimmer of hope seemed to be offered (although Paposhvili was argued in the grounds for permission to appeal to the Supreme Court in GS and permission refused). 

AM (Zimbabwe) & Anor v Secretary of State for the Home Department [2018] EWCA Civ 6 came next and interpreted Paposhvili as meaning that the protection of Article 3 will only apply in the following circumstances:

There is a risk of death in the receiving state; that risk must be of imminent death or a fast experience of intense suffering; and the risk must arise due to the non-availability of treatment in the receiving state that is available in the UK.

Savran v Denmark (application no. 57467/15) offers what appears to be a step down.  The requirement of returning governments to look into the treatment available in the receiving state is stated and there is an indication that the test outlined in Paposhvili above is too harsh. 

A difficult case

The reality of Article 3 ECHR medical cases is that they are almost impossible to succeed under.  A person making an application on the basis of the their health and treatment in the UK stands a much better chance of succeeding when argued within the Immigration Rules, in particular 276ADE(1)(vi) which states:

(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

An Applicant may have a better opportunity evidencing ‘significant obstacles to return’ under the Rules, than trying to rely on the much harsher tests contained within the case law relating to Article 3 ECHR medical grounds. 

Are you making a human rights case?

Westkin understands the difficulties in human rights cases and works tirelessly to provide clients the legal representation that they deserve. If you are worried about your right to remain in the UK, please contact us.

Call us at 020 7118 4546 or email us at info@westkin.com

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