The Judgement in the case of Paposhvilli v Belgium had a significant impact on the future of many applicants who argue that they should be allowed to remain in the United Kingdom because of their medical conditions. 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 Court (Grand Chambers 2016/ECHR1113).
The case represents a departure from the almost impossible threshold of the case of N v United Kingdom . In the case of N v UK the Court held that Article 3 of the European Convention of Human Rights will only protect migrants suffering from illness in exceptional cases. As a practitioner I know that it is almost impossible to meet the threshold because the fact the life expectancy would be reduced in the applicant’s home country does not engage with Article 3. Even if the life expectancy of our clients will be adversely affected, that is not a guarantee of being able to remain in the UK. So what is different about the case of Paposhvilli? In the case of Paposhvilli the Court referred to the cases post N v UK . The Judgement confirmed that it is the responsibility on the member state to assess the care generally available in the receiving state so as to prevent the applicant from being exposed to treatment contrary to Article 3 ie., inhumane and degrading treatment. The Court also held that the member state must assess whether the returnee could have access to care and facilities in their country. This would include the costs of medication and treatment, distance to access facilities and the existence of a support network. We welcome this decision because the implications of it for our clients is immense. The Home Office may wish to argue that the decision in Paposhvilli is not binding on the UK Courts or that the Courts may have regard to this decision, but have no obligation to depart from the case of N v UK. It is high time that a review of the threshold of severity, which an illness must attain in order to justify the granting of permission to remain in the UK on medical grounds, takes place.
Humanitarian grounds should be invoked in order to trigger the protection of Article 3 of the Convention, such as the risk of deterioration in the health of the applicant suffering from a serious illness as a result of the absence of appropriate treatment. It is regrettable that following this great success in this case the applicant himself died and his relatives expressed the wish to pursue the proceedings after his death. A Court normally permits the next of kin to pursue an application, provided that he or she has a legitimate interest where the original applicant has died after lodging the application with the Court.
The Court reiterated that the Judgement serves not only to decide those cases, but also to safeguard and develop the Rules instituted by the Convention, thereby contributing to the state’s observance of the engagements undertaken by them.