AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64
Another decision by the CA in which two Applicants, one who is HIV positive and on medication, amongst which there is a particular anti-retroviral treatment not available in his home country and the second who is suffering from cancer (albeit it was found that his home country could provide the relevant treatment), however wished to avoid the side effects which anti-cancer treatment in his home country resulted in.
The appellant, AM was a national of Zimbabwe, born in 1987 who became subject to deportation proceedings following several convictions. AM is HIV positive. The issue which arose was whether to return AM to Zimbabwe would violate his right under Article 3 not to be subjected to inhuman treatment, by reason of his medical condition. In an appeal, the First Tier Tribunal held that Article 3 did not prevent the deportation of AM; it was not satisfied that AM was at a critical stage of his illness nor that treatment for his condition would not be available for him in Zimbabwe if he were returned there, even though the specific ARV drug he was then taking (Eviplera) would not be available. The Upper Tribunal dismissed AM’s appeal, holding that the FTT had properly considered the medical evidence and that there was nothing in it to indicate that Eviplera was the only possible ARV drug which AM could take. The Upper Tribunal observed that the burden of proof was on the appellant and that it had been incumbent on him to show that he would be at risk of a significant deterioration in his health and possible death in Zimbabwe if he could not take Eviplera but could only take the other ARV treatments which were available in Zimbabwe. It was also considered that the FTT had not engaged in improper speculation but in light of the burden of proof and the evidence before it had come to a conclusion which was properly open to it.
Mr Nowar was a national of Jordan, born in 1986. Mr Nowar was diagnosed with cancer. In an appeal, the First Tier Tribunal found that Article 3 did not impose an obligation on an expelling state to provide individuals with a particular standard of health care. It was undeniable in this case that the appellant did receive sufficient health care in Jordan sufficient to put him into remission. The Judge could not construe any of the UK medical evidence before him to found the basis for a contention that either the Jordan treatment fell so below international standards that it could be said to have done him harm, or that he has shown that he would be denied treatment on return. The Judge was satisfied on the evidence before him that he would be able to avail himself of further treatment in Jordan and, equally importantly, that he would have the considerable support of his family and friends in doing so.
Court of Appeal holds that the Applicants ought to go back to their countries. Article 3 in light of Paposhvili v Belgium is not engaged, however, it was reflected that the Supreme Court should give consider the impact of Paposhvili. The test at p.183 of Paposhvili: “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.
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