The judgment in Paposhvili v Belgium - 41738/10 (Judgment (Merits and Just Satisfaction): Court (Grand Chamber) [2016] ECHR 1113 was handed down on 13 December 2016. It is likely that the significance and impact of the principles which arguably underpin the decision, will take some time to digest. So far the Home Office has not issued guidance on the approach she will take on medical cases in light of the observations made by the Grand Chamber in this case. In the immigration law context, the decision is almost ancient since judgements affecting immigration policy and practice are handed down almost on a daily basis. Practitioners in this field are comparable to financial analysts monitoring the stock exchange with gritted teeth.
Thus far, the Home Office has not overtly or publicly grappled with Paposhvili and its implications. The case represents a departure from the almost insurmountable threshold elucidated in N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008). In N v UK, the court held that Article 3 of the European Convention on Human Rights would only protect migrants suffering from illness in exceptional cases. The fact that life expectancy would reduce in an applicant's home country was unlikely to automatically engage Article 3. The European Court concluded that despite the argument advanced on her behalf, that her life expectancy and life would be adversely affected if she were returned to Uganda (due to her HIV) she was not at the time of the proceedings "critically ill". There were not "very exceptional circumstances" in this case, therefore the level of severity in Article 3 was not engaged. The court in N v UK did observe that there may be other "very exceptional cases" which include compelling features that in turn render removal unlawful.
In paragraph 179 of Paposhvili, the court referred to cases post-N v UK, in which applications raised similar arguments unsuccessfully. These cases involved a wide variety of ailments including severe mental health problems. In Aswat v. the United Kingdom 2013 (no. 17299/12, paragraph 49) however, the court reached a different conclusion finding that extradition to the America where he would be prosecuted for terrorist activities was likely to aggravate his paranoid Schizophrenia. In the circumstances of this case, Article 3 was engaged. The Grand Chamber reiterated the need for the Convention to be applied in a manner which is "practical and effective" and noted that post-N v UK, there has not been clear guidance on what constitutes a "very exceptional case" [181].
In Paposhvili, the applicant was a Georgian national who claimed asylum in the company of his wife and child (his other 2 children were born in Belgium). Prior to the hearing in the European Court, the applicant died. He had a number of criminal convictions including an offence of robbery. He made several applications for regularisation of his status in Belgium which were refused. His wife and children were granted indefinite leave to remain after more than 10 years residence. The applicant was diagnosed with chronic lymphocytic leukaemia. He had a bout of tuberculosis which recurred. He developed obstructive pulmonary disease and Hepatitis C. Additionally, he suffered a stroke.
Despite his serious health concerns and medical evidence confirming those ailments being served to the Belgian authorities, his requests for leave to remain were denied. In 2012, the Belgian Aliens Office served in effect a deportation order. The applicant had applied for a stay on his removal under Rule 39 of the Rules of the Court. The court concluded that Article 3 was engaged and would be breached by his removal.
In paragraph 183, it was held that the "other very exceptional cases" should be understood to include seriously ill returnees who although not at imminent risk of dying, can demonstrate that they would be exposed to treatment which would engage and ultimately breach their rights under the Convention.
In paragraphs 189-192 of the judgment, the court reiterated that it is incumbent on Member States (the "returning state") to assess the care generally available in a receiving State so as to prevent him or her from being exposed to treatment contrary to Article 3. The court also held that the member states must assess whether the returnee would have access to care and facilities in their country. This would include the cost of medication and treatment, distance to access facilities, and the existence of a support network.
As stated above, the implications of this case are far reaching and wide. There is likely to be some published guidance setting out her stance on the principles herein. The Home Office may argue that the decision is not binding on UK courts (as per Manchester City Council v Pinnock [2011] UKSC 6 paragraph 48). As such, it may be argued that UK courts may have regard to the decision but there is no obligation to depart from N v UK. There may be an argument that the case does not involve the UK so is not instructive. The latter argument would fall flat in my view. Whichever way it is argued and approached, for those representing applicants, the judgment is very welcome.