Maha Sardar and Hannah Lynes of the Garden Court Immigration Team are instructed by Ben Cartwright, and Director Vilash Gami of Duncan Lewis Solicitors.
The below content has been reproduced from a Duncan Lewis press release.
In a recent judgment, the Court of Appeal has reiterated the Secretary of State for the Home Department’s (SSHD) duty to seek assurances from the country of origin in deportation and human rights cases involving serious medical claims under Article 3 of the European Convention on Human Rights (ECHR). This decision underscores the importance of proactive action by the SSHD in addressing risks to claimants with severe medical conditions.
Background
The case concerned RO, a national of Guinea who suffers from paranoid schizophrenia, a condition manifesting in psychosis and assessed as treatment-resistant. Initially, his condition was difficult to treat, but after forming a stable relationship with his medical team and receiving a regular depot injection, his mental health improved. However, prior criminal behaviour before receiving adequate treatment led to the Secretary of State for the Home Department (SSHD) initiating deportation proceedings against him in 2019.
After an initial dismissal by the First-tier Tribunal (FTT), the case was remitted for a fresh hearing, facts de novo. The appeal was eventually reheard on 25 September 2023.
Ahead of the hearing, expert evidence was gathered, including reports from the client’s treating consultant and information regarding the availability of medical treatment in Guinea. Crucially, the SSHD did not challenge this evidence before or during the hearing at the First-tier Tribunal.
First-tier Tribunal’s Decision
The First-tier Tribunal, in its decision of 13 October 2023, examined the core issues related to RO’s Article 3 claim in light of the AM (Zimbabwe) [2020]. The Tribunal assessed whether RO would face a real risk of serious harm due to the lack of treatment in Guinea, specifically whether his health would deteriorate rapidly or if his life expectancy would be significantly reduced without the necessary medical care being available to him.
The Tribunal found that RO had established a prima facie case that there was no effective medical treatment available in Guinea, and it was the SSHD’s responsibility to provide evidence to counter this. Although the Tribunal acknowledged the tension in case law regarding thresholds for Article 3 ECHR claims, it ultimately found that RO would face a serious reduction in life expectancy if deported, as without treatment, he would likely die within 12 months. The SSHD was found to have failed to meet its obligation to demonstrate that RO could receive appropriate care in Guinea.
The SSHD sought permission to appeal, asserting that the First-tier Tribunal had erred by reversing the burden of proof and failing to provide adequate reasoning for its findings under Article 3 ECHR. This appeal was brought before the Upper Tribunal in an error of law hearing.
Upper Tribunal’s Decision
In its decision on 23 April 2024, the Upper Tribunal dismissed the SSHD’s appeal, agreeing with the First-tier Tribunal’s findings. It confirmed that the Tribunal had properly applied the AM (Zimbabwe) test, and that the burden of proof had not been reversed as asserted by the SSHD. The Upper Tribunal criticised the SSHD’s application, stating that its grounds for appeal were not rationally objectionable, and noted that the SSHD had failed to challenge the expert evidence provided at the original hearing. The SSHD’s appeal was dismissed accordingly.
The SSHD sought to amend its grounds for appeal to the Court of Appeal, arguing that it had not been afforded the opportunity to obtain individual assurances from Guinea regarding our client’s treatment. The Upper Tribunal refused the SSHD’s application for permission to appeal on 12 June 2024, reminding the SSHD that, under the second appeals criteria, it was for the SSHD to demonstrate its grounds had a real prospect of success, raised an important point of principle or practice, or, alternatively, that there is some other compelling reason for the Court of Appeal to hear it. The Upper Tribunal submitted this test was not met and it was for the SSHD to raise the issue of assurances earlier in the process, which it had failed to do.
Court of Appeal
The SSHD subsequently applied to the Court of Appeal for permission to appeal. The Court of Appeal dismissed this application on 15 November 2024. The Court reiterated that under AM (Zimbabwe), it was the duty of the SSHD, not the Tribunal, to seek reassurances from the country of origin when there were doubts about the availability of medical treatment. The Court also emphasized that the SSHD had had ample opportunity to address the issue of assurances during the earlier proceedings but had failed to do so.
The Court of Appeal criticised the SSHD for attempting to re-litigate matters that had already been settled, particularly the failure to challenge expert evidence during the First-tier Tribunal hearing. The Court confirmed that the Tribunal’s decision was not flawed and that the SSHD was not entitled to a second chance to argue the same points on appeal. The Court of Appeal confirmed that parties to litigation are expected to put their whole case forward at the hearing of the appeal and are not entitled, as attempted in this case, to come back for a second time if they are not successful. The Court of Appeal reminded the SSHD that it was for them to evaluate the risk that RO would satisfy the threshold and, in such a case, to seek necessary assurances to rebut the Appellant’s case at the hearing.
RO now awaits the final resolution of his case, with the SSHD having been found to be in breach of Article 3 ECHR regarding his potential deportation to Guinea.
Significance of the Decision
This case underscores the SSHD’s duty to proactively address risks in deportation and human rights cases involving serious medical conditions. The Court’s judgment reinforces the principle that the burden lies on the SSHD to seek assurances when necessary and to substantively address concerns during initial hearings, rather than revisiting arguments on appeal. Ben Cartwright, Solicitor for the Appellant, said:
“It is hoped that this case will prompt a change in the approach of the SSHD to ensure that it no longer attempts to re-litigate matters that have already been decided when there is no merit in doing so.”
