On appeal from: [2018] EWHC Civ 64

This appeal related to the UK’s ability to deport a Zimbabwean citizen who, whilst being lawfully resident in the UK, had committed serious crimes. He sought to challenge the decision to deport him on the basis of ECHR, article 3. Being HIV positive, he argued that if deported he would be unable to access the medication he receives in the UK and which prevents his relapse into AIDS.

He appealed to the Supreme Court, asking it to depart from N v Secretary of State for the Home Department [2005] UKHL 31 by reference to the ECtHR decision in Paposhvili v Belgium [2017] Imm AR 867 and to remit his application for rehearing by reference to article 3.

The Supreme Court unanimously allowed the appeal and remitted the claim under article 3 to be heard by the Upper Tribunal on up-to-date evidence properly directed to the substantive and procedural requirements set out by the Grand Chamber of the ECtHR. The Court reasoned that in N v United Kingdom (2008) 47 EHRR 39, the ECtHR held that a high threshold for violation of article 3 should be maintained. In Paposhvili v Belgium [2017] Imm AR 867, however, the ECtHR reconsidered what “other very exceptional cases” were. In that case, the ECtHR found that they should now be taken to include cases in which there were substantial grounds for believing that the applicant, while not at imminent risk of dying, would face a real risk in the receiving country of being exposed either to a serious, rapid and irreversible decline in health resulting in intense suffering, or to “a significant reduction in life expectancy”. In the present case, the UK Supreme Court found that the Court of Appeal had been mistaken in taking the ECtHR’s phrase “a significant reduction in life expectancy” to mean “the imminence of death. “Significant” was to mean “substantial”. The Supreme Court held that Paposhvili had modified the interpretation of article 3 in N v UK and the court should only refuse to follow a ECtHR decision in highly unusual circumstances.

For judgment, please download: [2020] UKSC 17

For Court’s press summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing please visit: Supreme Court website, 4 December 2019 morning and afternoon session.