5th May 2020 | Articles

Julia Lowis has written a blog for the Oxford Human Rights Hub on UK Supreme Court Relaxes the Test for Establishing a Breach of Article 3 in Medical Removal Cases.

On 29 April 2020, the UK Supreme Court handed down its judgment in the case of AM(Zimbabwe) v SSHD [2020] UKSC. This completes the domestic line of authority grappling with the ECtHR’s Grand Chamber’s judgment in Paposhvili v Belgium, which reformulated the applicable test where appellants allege that their proposed removal to a third country would be in breach of Article 3 ECHR as exposing them to inhuman or degrading treatment as a result of the unavailability of medical treatment there.

The background to the case and the European and domestic jurisprudence considered in it is set out in my earlier blog posts concerning EA in the Upper Tribunal and AM in the Court of Appeal.

AM’s appeal

Despite the scathing comments of Sales LJ in the CA regarding the apparent merits of his case, the SC considered that this was an appropriate vehicle for re-consideration of the ‘deathbed test’ which has been applied by domestic courts since the cases of D v UK (1997) and its slight modification in N v UK (2008).

Practically, the most important element of the Court’s unanimous decision (delivered by Lord Wilson) is that the test laid out by the Grand Chamber at para [183] of Paposhvili did expand the scope of Article 3 beyond that set out in N v UK. Para [22] of Lord Wilson’s judgment tacitly approves of the expansion, acknowledging the Convention as a living instrument, but he rebukes the Court for shying away from squarely acknowledging this:

‘The Convention is a living instrument and when, however appropriately, the ECtHR charts its growth, it may generate confusion for it to claim to be providing only clarification.’…..

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