1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):
(1) Has the person (P) discharged the burden of establishing that he or she is ‘a seriously ill person’?
(2) Has P adduced evidence ‘capable of demonstrating’ that ‘substantial grounds have been shown for believing’ that as ‘a seriously ill person’, he or she ‘would face a real risk’:
[i] ‘on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy’?
2. The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.
3. The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is ‘intense suffering’. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.
4. It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran become of relevance – see [135] of Savran.
Citations:
[2022] UKUT 131 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 22 September 2022; Ref: scu.680532