This paper looks at the UK Supreme Court’s decision concerning deportation and how it could impact the rights of foreign criminals subject to deportation in the UK
Introduction
This paper will look into the recent decision of the Supreme Court of the United Kingdom[1] in AM (Zimbabwe) v Secretary of State for the Home Department (“AM”)[2] and how it – and Article 3 of the European Convention on Human Rights[3] – may apply to mentally ill deportees in the United Kingdom[4], and also whether the decision may afford mentally ill deportees greater protection and recognition than they had prior to AM.
AM is a recent landmark decision which answered whether it would, in light of the European Court of Human Rights[5] in Paposhvili v Belgium[6], violate Article 3 of the ECHR to deport a foreign criminal with a serious illness if doing so would mean that the foreign criminal would not receive the same standard of healthcare and would, as a result, die sooner.
Automatic Deportation
Deportation is the well-known “process whereby a non-British citizen can be compulsorily removed from the UK and prevented from returning”[7], where certain criteria are met. By the end of 2007, after public outcry against foreign nationals being released from custodial sentences without being considered for deportation – known as the ‘2006 foreign prisoner scandal’ – Parliament enacted the UK Borders Act 2007[8] which sets out, in section 32(5), that the Secretary of State for the Home Department must make a deportation order against a foreign criminal – thus introducing automatic deportation for foreign criminals.
A foreign criminal is also defined at section 32(1) of the UKBA as a person –
- Who is not a British Citizen;
- Who is convicted in the United Kingdom of an offence; and
- To whom condition 1 or 2 applies.
Condition 1, as mentioned in section 32(1)(c) UKBA, is that the person has been sentenced to a period of imprisonment of at least 12 months[9]. Condition 2 is for ‘specified offenders’[10] that have been sentenced to a period of imprisonment, but not for 12 months or more[11].
On the face of it, automatic deportation appears to be straightforward as any foreign criminal is liable to be automatically deported under the UKBA, however, automatic deportation is not entirely automatic as there are various exceptions upon which a foreign criminal may rely, as contained in section 33 UKBA. The most commonly used exception is where the removal of a foreign criminal would breach a person’s Convention rights under the ECHR[12], and the Convention right usually relied upon is Article 8[13], as Article 8 encompasses claims based on one’s private life[14], family life[15] or any other compelling circumstance[16] – including claims of mental health; although, Article 3[17] may also be relied upon in medical and mental health cases. The distinction between which Article should be used in medical cases will be dealt with further into this project, however, simply put, Article 3 is used where deportation would lead to real suffering and/or death and Article 8 is used in broader cases.
This paper will look into the section 33(2)(a) exception; however, I will be focusing particularly on the use of Article 3 as a result of the ECtHR decisions in Paposhvili[18] and Savran v Denmark[19] and the UKSC decision of AM.
Previous Legal Position
Before looking into AM, it is important to review the significant caselaw in relation to deportation and Article 3 claims of ill-health prior to AM from both the ECtHR and UK Courts, as outlined by Lord Wilson[20].
To begin with, the decision of the ECtHR in D v United Kingdom[21], held that the deportation of a man whose death was imminent to a country where he would have no access to adequate medical support would constitute a breach of Article 3 due to the late stage of the illness[22] and the “exceptional circumstances” and “compelling humanitarian considerations” in the case[23] – as Lord Wilson put it “… the essence of the decision was not the absence of treatment … but the inhumanity of, in effect, pulling a man off his deathbed”[24].
Next is the House of Lords decision in N v SSHD[25] in which the Court held that Article 3 only extends to deportees whose illnesses have reached such a “critical stage that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him … to an early death unless there is care available there to enable him to meet that fate with dignity”[26]. N v SSHD set a high threshold for Article 3 that almost required the consequence of a deportation to be a very imminent death; this judgment was affirmed by the Grand Chamber of the ECtHR in the later referral[27].
In Yoh-Ekale Mwanje[28], the ECtHR observed that the case was indistinguishable from N v UK[29], that it was ‘improbable that the applicant would obtain the necessary medication if removed and would likely die as a result’[30], however, the Court’s primary consideration was the condition of the applicant prior to removal[31] – which was stable.
Although a Court of Appeal decision, it is also worth touching upon the case of GS[32] as it was mentioned, obiter, that if there were a real possibility of a life-saving transplant occurring in the near future then there would be a question as to whether the removal of [the applicant] would violate Article 3 on the basis that “to deprive him of such an imminent and transformative medical recourse amounts to inhuman treatment”[33] and the Court also offered guidance stating that “removing someone with a serious mental … illness, to a country where their treatment may be inferior, may raise an issue under Article 3”[34] – suggesting the Court’s willingness to move away from a strict interpretation of very exceptional circumstances, insofar as able, 10-years after N v SSHD.
The next case to look at is Paposhvili. The ECtHR widened the test for Article 3 and ill-health claims beyond what had been previously decided in N v UK by stating at paragraph 183:
“… Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.”[35]
This decision of the ECtHR was a large change from the previous position as set by the House of Lords in 2005 and affirmed by the Grand Chamber in 2008 towards granting ill deportees greater protection under Article 3 as Paposhvili widened the Article 3 test from the applicant needing to face very imminent death if removed to the applicant needing to face a serious and rapid decline of their state of health if removed leading to a significant reduction in lifespan – the need for the applicant to die had, rightfully, been done away with in ECtHR jurisprudence, however, the UK was still following N v SSHD.
The final decision to look at before going into AM, is Savran. In this case, the ECtHR held that the applicant – a convicted man diagnosed with paranoid schizophrenia – could not be deported to Turkey because, although the drugs prescribed to treat his schizophrenia were available in Turkey, the fact that the applicant may not be able to have a regular contact person and a follow-up scheme for his overall supervision meant that he could relapse and become dangerous, thus his removal would violate Article 3. A request has been accepted by the Grand Chamber for referral of Savran, however, at the time of writing no ruling has been made beyond that of the chamber in 2019[36], therefore all references to Savran will be to the 2019 judgment. This decision is important for ECtHR jurisprudence, and for later discussion, as it widens the Article 3 test further than could have been reasonably foreseen in 2005 by holding that, in essence, removing a person with a serious mental illness could violate Article 3 if that removal could lead to a relapse – the need for an applicant to be facing certain death, as in N v UK, would appear to be draconian in comparison to Savran, which raises the question as to whether Savran is within the “letter and spirit of Article 3”[37] or whether it has gone too far in affording foreign criminals protection against deportation within Europe.
Whilst the ECtHR had been widening the test for Article 3, it is worth remembering that the UK was still following N v SSHD which is reflected by the Upper Tribunal’s judgment in EA[38], holding that Paposhvili was not applicable as it was contrary to judicial precedent, which delivered no surprises[39]. However, in 2018, the Court of Appeal heard AM[40] and held that Paposhvili did relax the Article 3 test but that it only did so “to a very modest extent”[41], and held that the test in the UK had shifted from “imminence of death” to “imminence of intense suffering or death”[42], however, the UK was still bound by N v SSHD.
Decision of AM
In April 2020, the UKSC delivered its judgment in AM, which held that the Court of Appeal’s interpretation of Paposhvili was wrong[43], the Court has departed from N v SSHD[44] and has embraced the ECtHR decision of Paposhvili and that the actual test to be applied in cases of Article 3 and ill-health is whether an applicant is at a “real risk of being exposed to a –
- Serious, rapid and irreversible decline in state of health resulting in intense suffering; or
- Significant reduction in life expectancy”[45].
Significance of AM
AM is a significant decision for deportation and claims of ill-health under Article 3 within the UK. It is the first major development for the law surrounding claims of ill-health under Article 3 in 15-years and the shift from N v SSHD to AM is not a small one as it moves away from the ‘deathbed’ cases and towards an approach where the removal of an ill applicant could violate Article 3 if there is simply a real risk of intense suffering or death – affording ill deportees greater protection within the UK and finally moving in-line with the ECtHR.
This may possibly lead to controversial debates among the public as there would be no surprise if the public voiced their objections to foreign criminals being given a further opportunity to avoid being deported, and even more so when it comes to those same foreign criminals being granted life-extending treatment on behalf of the National Health Service[46], and with immigration law repeatedly being drawn into the negative spotlight by the Home Office[47], it would not come as a surprise if the decision of AM could come under political and/or judicial scrutiny.
The main point of interest resulting from AM, and the focus of this paper, is how AM could apply to instances of mentally ill deportees – as has been done in Savran. Savran interpreted Paposhvili to find that deporting a mentally ill applicant could violate Article 3 – as shown by the Court referencing Paposhvili throughout their judgment and finding that removal would violate Article 3[48]. Whilst the question remains as to whether this interpretation is too broad within ECtHR jurisprudence, a question arises in UK jurisprudence as to whether a future legal challenge concerning Article 3 and mentally ill deportees could succeed on the same basis as Savran and if so, to what extent it may apply – would it apply only to those with the most serious and dangerous mental illnesses and would it apply only to those foreign criminals who would be unable to receive appropriate treatment for their mental illnesses in the receiving country?
Mental Health in Immigration: An Overview
Before discussing the potential impact of AM and the applicability of Article 3 to cases of mental illness, it is important to briefly view how mental illness is treated by the Home Office and immigration Courts pre-AM.
Home Office
As many immigration practitioners know, the Home Office does not have the best reputation when it comes to dealing with immigration issues; as shown notably with the Windrush Scandal[49], the introduction of the hostile environment[50] and even with the recent threats to make the Channel crossing “unviable”[51], therefore, it would not come as any surprise to find that the Home Office do not treat those will mental illnesses any better than any other migrant.
The Home Office must follow the legal framework and Immigration Rules, as outlined in their guidance: ‘Home Office, Criminality: Article 8 ECHR cases’[52] and ‘Home Office ‘Medical claims under Article 3 and 8 of the European Convention of Human Rights (ECHR)’[53]. However, despite this, their lack of care and compassion for mentally ill migrants can be shown over the last 5-years alone by their unlawful detentions[54], ignoring medical advice[55] and breaching the Equality Act 2010[56].
The Courts
Questions of mental illness is something that the Courts deal with on a regular basis and in most areas of law, that is because mental illness is extremely common as it is the leading cause of the overall disease burden worldwide[57] and one in six adults in the UK have a common mental disorder[58]. Questions of mental health are considerably more prevalent in the wider immigration context as it has been reported that asylum seekers are five times more likely to have mental health needs than the general public, with more than 61% likely to experience serious mental distress[59], and yet, they are less likely to receive support[60] – highlighting a wider issue with attitudes towards migrants and mental health.
In the deportation context, mental illness can fall into either the section 33(6) exception[61] for those with severe mental disorders requiring a hospital order or similar to be made, or into the section 33(2)(a) exception where the Article 8 ‘very compelling circumstances’ test for medium[62] and serious offenders[63] is to be satisfied. For those with severe mental illness falling within the section 33(6) exception – although not an absolute exception to deportation if the deportation were considered to be conducive to the public good[64] – there is positive news from MZ v SSHD[65] where the Upper Tribunal found that a person sentenced to a hospital order after a finding[66] is not a foreign criminal and is therefore not subject to section 117C nor paragraphs A398-399 of the Immigration Rules as he is excluded by section 117D[67]. However, for those without a severe mental illness and relying upon the very compelling circumstances test, it is not so straightforward. The very compelling circumstances test holds a high threshold for an applicant to pass and essentially requires a judge to carry out a ‘balance sheet approach’[68] considering all relevant factors[69]. On this balance sheet approach, applicants must demonstrate compelling circumstances in an attempt to outweigh the public good of deportation[70]; and mental illness or lack of capacity does not always satisfy that test[71], as demonstrated in El Gazzaz[72] and in the ongoing case of Osime Brown[73]. However, in looking at very compelling circumstances, a consistent approach can be seen to be taken by the Courts – and that is to look at what mental health support is available to the applicant in the receiving state. This appears to be a forceful consideration for the Courts that is used regularly; as when comparing a case where mental illness did amount to very compelling circumstances[74] with El Gazzaz, the key difference is the availability of mental health support in the receiving states. In fact, this was also a consideration for the ECtHR in Savran which raises the question as to whether the Courts have been viewing mental illness under Article 8 in the same way they would be required to under Article 3, AM and Savran.
As demonstrated above, the Courts have not viewed mental illness nor lack of capacity as an absolute exception to deportation, even in cases where the reasonable person may conclude that it should – including cases involving severe and diagnosed mental illnesses. However, there can be a renewed sense of hope for mentally ill deportees, including those with less severe mental illnesses, as in DH[75], the Upper Tribunal found that a person living with a mental illness ‘may qualify as a member of a particular social group’[76], and that a person unable to attain a firm diagnosis of their mental illness ‘will not be denied the right to protection just because a label cannot be given to their condition’[77]. Whilst an asylum case and not directly related to deportation, this decision provides hope for mentally ill migrants, in my consideration, for two key reasons:
- It demonstrates that the Courts are moving towards a more compassionate stance on mental illness, one that gives more weight to mental illness and also one that affords greater protection to those with mental illness; and
- The decision that a person will not be prevented from obtaining protection just because their illness cannot be given a firm diagnosis provides hope to those with undiagnosed mental illness, those suffering with less severe mental illness[78] and those whose mental illnesses cannot be diagnosed – highlighting the flexibility of the Courts when dealing with mental health.
Though it should be questioned whether taking AM, Savran and DH together in future cases concerning mental illness could go too far and open the floodgates, especially in cases of undiagnosable mental illness, as expert evidence will likely be very limited in those cases, and possibly even unconvincing. How far should the Courts go into accepting undiagnosable illnesses before they inadvertently move towards allowing mental health to become a near-absolute bar to deportation?
Use of Article 3 and Mental Health post-AM
The important point of this paper is to examine how Article 3 could be used to resist deportations on the basis of mental illness in light of the decision in AM. As outlined above, the UK’s departure from N v SSHD towards Paposhvili marked a significant relaxation in the law as it allows ill migrants to avoid deportation if being deported would cause significant suffering or death.
Meanwhile, Savran extended Paposhvili further within ECtHR jurisprudence to cover instances of mental illness; whilst Savran does not bind the UK, it is persuasive authority and, given the UK’s intervening[79] in Savran in the Grand Chamber, I consider that Savran could influence a future challenge to deportation on the basis of Article 3 and mental illness.
Impact of AM
As outlined above, Article 3 has always been open to instances of mental health, however, it has been held to a high threshold along with physical health given the decision in N v SSHD, however, as further outline above, Article 8 has always been the preferred route for most mentally ill applicants as the very compelling circumstances test – although still with a high threshold – was lower than the N v SSHD threshold which required an applicant to face almost imminent death, which does not apply to all instances of mental illness, only those with a risk of suicide.
Pre-AM, in cases where there would be an increased risk of suicide, Article 3 would apply, but the threshold for suicide cases, as set by J v SSHD[80], was lower than that of N v SSHD[81] when argued on a domestic basis as it required an “increased risk of suicide caused by the process of removal”[82] and not almost imminent death as set out in N v SSHD. However, subsequent caselaw, in an attempt to be consistent with N v SSHD, was inconsistent and “unclear”[83], leading to a confusion amongst suicide risk and a higher threshold needing to be met.
AM, by embracing Paposhvili, has brought clarity into instances of increased suicide risk as all cases of suicide risk and Article 3 can follow the AM test of a real risk of being exposed to a significant reduction in life expectancy. The word “significant” was clarified by the Court and, in this context, means “substantial”[84]. The question of what a significant or substantial reduction in life is one that is open to argument, as stated in the judgment “even a reduction to death in the near future might be significant for one person but not another”[85], this is something that will likely be decided on a case-by-case basis and will include reference to other factors.
However, how does AM affect those who usually rely on Article 8? As AM allows an applicant to succeed if they can demonstrate a real risk of being exposed to a decline in their state of health that would lead to intense suffering, then it opens up Article 3 to more cases of mental illness. It may be argued that a person suffering from clinical depression or obsessive compulsive disorder would be exposed to a real risk of a decline in their state of health resulting in suffering if returned to a country with insufficient mental health resources[86] or with a culture that does not support and heavily stigmatizes mental illness[87] – such an argument, in my opinion, would have strength in light of AM, even without the persuasiveness of Savran, and how much of a role might Savran have in any future Article 3 and mental illness challenge is definitely an important question to consider for any immigration practitioner.
Potential Impact of Savran
The relevance of Savran in this paper is that of how it applied Paposhvili in a case of mental illness in the ECtHR, and now given the UK’s adoption of Paposhvili it would be wise to discuss the impact Savran may carry into UK jurisprudence.
As explained above, Savran broadened Article 3 beyond that of Paposhvili by deciding that a person with paranoid schizophrenia could not be deported because he may not have a regular contact person or follow-up scheme which could lead to a potentially dangerous relapse. This decision, in my view, begins to move further away from a ‘real risk of suffering or death’ and to a standpoint that requires an even lower bar to reach – one where there is a real question as to whether the public good in favour of deportation has been outweighed. Three of the judges in Savran disagreed with the majority and said in their dissenting opinion “… the majority have seized the first available opportunity to further broaden the scope of Article 3 in this sensitive area, thus … pushing wide open the door …”[88]. The view of the dissenting opinion is agreeable; however, Savran still may be used as a persuasive authority in the UK Courts which could certainly widen the scope of Article 3 within the UK.
The dissenting opinion also stated that the “Grand Chamber [in Paposhvili] had both physical and mental illnesses in mind when it adopted and worded the new criterion to be applied in such cases”[89]. This opinion from the dissenting judges, in my view, is correct. As explained above when looking at AM, it is likely that an argument resisting deportation on the grounds that a person’s mental illness faces a real risk of serious decline leading to suffering would carry great weight before the Court so long as the appropriate medical evidence can support the argument that the person’s mental health would decline if returned to the receiving state and they would suffer as a result. Therefore, in my view, there is no need for the Courts to continue to widen the scope of Article 3; the test set out by Paposhvili and AM is within the ‘letter and spirit of Article 3’[90] – in fact, it would be my argument that Savran does not require a risk of inhuman and degrading treatment[91], but would simply require a risk of poor treatment.
How the Grand Chamber deal with Savran will certainly be interesting to see, particularly for how it may impact the scope of Article 3 and mental health.
Possibility of Parliamentary Intervention?
Deportation and immigration law issues have, in recent history, been issues that have been politicised and are often targeted by politicians and the general public on a regular basis around the world. With the discussion of AM leading to the idea that foreign criminals may be afforded greater protection by reason of Article 3 and their mental illness than they previously had, there will likely be some criticisms and calls for change, so it is important to briefly consider what, if any, intervention Parliament may take in relation to Article 3 and deportation.
As has been detailed above, Parliament has legislated on the impact of mental health in deportation but only to the extent that deportation may not breach the ECHR[92] and that in the event deportation may breach the ECHR then the deportee must show very compelling circumstances[93] if they choose to resist deportation. When looking at what very compelling circumstances are or how certain factors should weigh against the public good, Parliament has left that to the Courts, and it would be reasonable to assume that they would continue to do so.
With that being said, it appears as though Parliament may intervene under the new Fair Borders Bill[94] as it has been reported that Priti Patel will tell judges what ‘inhuman or degrading treatment’ is[95] – the idea of this being that Parliament will outline, in statute, what constitutes inhuman or degrading treatment to “reduce the scope for judges to answer philosophical questions”[96] and to provide clarity over questions of Article 3. Putting to one side the criticisms of such a Bill and restraints on judicial interpretation, it does appear as though Parliament would be willing to legislate on the use of Article 3 in deportation and if so, Parliament would likely steer away from Savran and may even go further to move away from Paposhvili and AM.
How it Looks in Practice
The final thing to explore after the discussion on the impact of AM and the application of Article 3 on mentally ill deportees is how AM may apply in practice.
Evidence
As with any legal case involving mental health and/or medical treatment, a medical expert[97] is best placed to aid the Court with determining the extent of the mental illness. Section 10 of the Practice Directions[98] outlines the requirements and obligations for a medical expert. Medical evidence is important in a hearing as it can help to explain an applicant’s “difficulty with giving evidence or recounting events”[99], “demonstrate the effect of expulsion on a person’s mental condition”[100] and also help to outline factors contributing to mental illness and any necessary treatment.
The Practice Directions and Best Practice Guide[101] set out the evidence that should aid the Court, which, as it stands, is fairly straightforward, however, there is a risk that this could become more complex as a result of DH, especially in cases of undiagnosed or undiagnosable mental illnesses as expert evidence will likely be very limited in those cases, and possibly even unconvincing.
As for now, it is important to continue to collate robust medical evidence, and in the event that a deportee’s mental illness is undiagnosed or undiagnosable then DH should be remembered and may potentially be persuasive on the Court. It is also worth noting the Home Office Guidance[102] at page 32 which outlines how the Home Office are to treat medical evidence and how medical evidence should be presented.
Other key evidence is referred to in Home Office Guidance[103], which includes evidence relating to cultural and social issues and the care and treatment available in the receiving state – how mentally ill deportees may be viewed by the wider community in the receiving state and what help is available to the deportee is an extremely important aspect to a deportation appeal and therefore strong evidence must be collected in relation to this point. This includes using Home Office Country Information documents, expert witnesses from the receiving state who can attest to the cultural and social issues and the care available in that country and any other credible information that can be found on these points.
Article 3 and the Application of AM
When it has been established that the deportee has a mental illness then it must be considered whether they fall within the exception under section 33(2)(a). If so, it must be established whether it is in the deportee’s best interests to rely upon Article 3 or Article 8 – although in practice it is likely both will be relied upon, for the purposes of this only one will be considered.
Whilst Article 8 is still an option, I do consider it to be less favourable than using Article 3 in cases of mental health as the very compelling circumstances test holds a very high threshold that not many with mental illness satisfy, as demonstrated with El Gazzaz and Osime Brown meaning that it would be futile to attempt to go down the Article 8 route with the Article 3 route having been widened by AM.
Article 3 was not always the route to go with unless the deportee faced a real risk of suicide, although the law surrounding suicide cases and Article 3 became confused and inconsistent. However, since the law has been clarified and the test for Article 3 in health cases has been relaxed slightly, it is most definitely the best route for a mentally ill deportee as arguments can be made (1) in relation to a real risk of suicide, and (2) in relation to a real risk of a decline in condition resulting in suffering. Both elements have been relaxed since 2005 as the question regarding death will usually turn on the significance of the reduction in lifespan – there is no definition of what reduction would be “significant” as it appears to mean substantial to the person[104], which on the face of it would be a much easier threshold to pass for a person at risk of suicide as the potential suicide would not have to be almost imminent. Further, the question regarding a real risk of decline resulting in suffering is far wider than the test of N v SSHD as detailed above. This means that there is more hope for deportees with a non-fatal mental illness as they may be afforded protection under Article 3 so long as they can show that they face a real risk of mental decline which would result in suffering.
Conclusions
As a result of AM, the use of Article 3 in deportation appeals has changed significantly to cases of ill-health. The Courts are moving away from the draconian test as set out in N v SSHD and have moved towards a more compassionate and lenient test requiring an applicant to show a real risk of being exposed to serious decline in condition leading to suffering or a real risk being exposed to a significant reduction in life – as has been outlined above, and can be clearly seen from the words alone, the decision in AM marks a significant change to the application of Article 3.
Whilst it is clear AM applies to physical illness, there is a question as to whether it applies to mental illness and how it would do so. As discussed above, it is likely that mental illness is also implicitly covered by AM and it would likely apply in a similar way to physical health – affording applicants with mental illnesses greater protection within the UK, and there is a possibility that applicants with mental illnesses may be afforded further protection depending on how Savran may be applied in future cases within the UK. At this current time, regardless of Savran, any deportation appeals regarding Article 3 and mental illness will likely be held to the AM test and criterion[105]. There are potential threats and criticisms of AM, namely by the Home Office and Parliament who may attempt to legislate on Article 3 in the immigration context by way of the Fair Borders Bill. Whilst there will be criticisms of this Bill and possibly even challenges against it, it is important to keep an eye on its developments as it does hold the potential to drastically change the application of Article 3 in cases of ill-health.
[1] Hereafter, “UKSC”
[2] [2020] UKSC 17; Hereafter, “AM”
[3] Hereafter, “ECHR”
[4] Hereafter, “UK”
[5] Hereafter, “ECtHR”
[6] [2016] ECHR 1113; Hereafter, “Paposhvili”
[7] Ian Macdonald and Ronan Toal, Macdonald’s Immigration Law & Practice (9th edn, Lexis-Nexis Butterworths 2014) at Chapter 16
[8] Hereafter, “UKBA”
[9] UKBA, Section 32(2)
[10] ‘Specified offenders’ means those whose offences have been specified by order of the Secretary of State under Section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002
[11] UKBA, Section 32(3)
[12] Ibid at Section 33(2)(a)
[13] ECHR, Article 8
[14] Immigration Rule 399A
[15] Immigration Rule 399
[16] Nationality, Immigration and Asylum Act 2002, Part 5A, Section 117C(6)
[17] ECHR, Article 3
[18] Op. Cit., n6
[19] [2019] ECHR 651; Hereafter, “Savran”
[20] Op. Cit., n2 per Lord Wilson at [13] to [26]
[21] (1997) 24 EHRR 423; Hereafter, “D v UK”
[22] Ibid at para 51
[23] Ibid at para 54
[24] Op. Cit., n2 per Lord Wilson at [14]
[25] N v SSHD [2005] UKHL 31
[26] Ibid, per Lady Hale at [69]
[27] N v UK (2008) 47 EHRR 39
[28] (2013) 56 EHRR 35
[29] Ibid at para 80
[30] Ibid at para 81
[31] Ibid at para 83
[32] GS (India) v SSHD [2015] EWCA Civ 40 at [70]
[33] Op. Cit., n7 at Chapter 7
[34] Ibid
[35] Op. Cit., n6 at para 183
[36] Op. Cit., n19; Note the Grand Chamber held a hearing on June 24, 2020
[37] Op. Cit., n28 at para 6 of the Common Partly Concurring Opinion
[38] EA (Article 3 Medical Cases – Paposhvili not applicable) [2017] UKUT 445
[39] Nathan P, ‘Implications of AM (Zimbabwe)’ (2020)
[40] [2018] EWCA Civ 64
[41] Ibid, per Sales LJ at [37]
[42] “Supreme Court Judgment in AM (Zimbabwe): Paposhvili Finally Applied in the UK – One Pump Court” (OnepumpCourt.co.uk, 2020)
[43] Banner QC C, Nathan P, and Vanderman Y, ‘Supreme Court Decision in AM (Zimbabwe) v SSHD – Deportations, Medical Illnesses and Art 3 ECHR Webinar’ (2020)
[44] Op. Cit., n2 at [34]
[45] Op. Cit., n2 at [29]
[46] The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017; Guidance on Overseas Visitors Hospital Charging Regulations 2015
[47] Both the ‘hostile environment’ and recent remarks by Priti Patel have led to further hostility in immigration issues, see example: Mark Townsend, “Top Ministers Urged Priti Patel to Stop Attacks on ‘Activist Lawyers’” (the Guardian, October 18, 2020)
[48] Op. Cit., n19 at paras 66 and 67
[49] “Windrush Scandal | UK News | The Guardian” (the Guardian, October 14, 2020)
[50] Colin Yeo, “Briefing: What Is the Hostile Environment, Where Does It Come from, Who Does It Affect? | Free Movement” (Free Movement, May 2018)
[51] Chantal Da Silva, “British Government Willing to Do ‘Whatever It Takes’ to Prevent Migrants from Reaching Shores” Forbes (October 12, 2020)
[52] (13 May 2019)
[53] (19 October 2020).
[54] “Home Office Admits Unlawful Detention of Mentally Ill Man | News | Garden Court Chambers | Leading Barristers Located in London, UK” (GardenCourtchambers.co.uk, 2019)
[55] “Home Office Systematically Ignores Medical Advice to Keep Mentally Ill Immigrants in Detention” The Independent (November 25, 2017)
[56] R (ASK) v SSHD [2019] EWCA Civ 1239
[57] Global Burden of Disease Study 2013 Collaborators, “Global, Regional, and National Incidence, Prevalence, and Years Lived with Disability for 301 Acute and Chronic Diseases and Injuries in 188 Countries, 1990–2013: A Systematic Analysis for the Global Burden of Disease Study” (2015) 386 The Lancet 743
[58] “Adult Psychiatric Morbidity Survey: Survey of Mental Health and Wellbeing, England, 2014 – NHS Digital” (NHS Digital, September 29, 2016)
[59] “Mental Health Statistics: Refugees and Asylum Seekers” (Mental Health Foundation, March 12, 2018)
[60] Peter Aspinall and Charles Watters, “Refugees and Asylum Seekers, a Review from an Equality and Human Rights Perspective” (Equality and Human Rights Commission 2010)
[61] UKBA, Section 33(6)
[62] NA (Pakistan) v SSHD [2016] EWCA Civ 662; Medium offenders are those sentenced to a term of imprisonment of at least 12-months and up to 4-years
[63] Op. Cit., n16; Serious offenders are those sentenced to a term of imprisonment of at least 4-years
[64] “How Can a Man with Asperger Syndrome Who Grew up in Britain Be Deported? | Free Movement” (Free Movement, March 11, 2020)
[65] MZ (Hospital Order: Whether a ‘Foreign Criminal’) Pakistan [2020] UKUT 225(IAC)
[66] Criminal Procedure (Insanity) Act 1964, Section 5(1)(b)
[67] Nationality, Immigration and Asylum Act 2002, Part 5A, Section 117D
[68] Hesham Ali (Iraq) v SSHD [2016] UKSC 60 at [82] to [84]
[69] SSHD v Garzon [2018] EWCA Civ 1225 at [28]
[70] MS (s.117C(6): ‘Very Compelling Circumstances’) Philippines [2019] UKUT 122 (IAC); Nationality, Immigration and Asylum Act 2002, Part 5A, Section 117C
[71] Op. Cit., n64
[72] El Gazzaz v SSHD [2018] EWCA Civ 532
[73] Veron Graham, “Family of Autistic Man Appeal His Deportation to Jamaica – Voice Online” (Voice Online, March 5, 2020)
[74] KE (Nigeria) v SSHD [2017] EWCA Civ 1382
[75] DH (A Particular Social Group: Mental Health) Afghanistan [2020] UKUT 223 (IAC)
[76] Ibid at para 2 of the headnote
[77] Ibid at para 3 of the headnote
[78] ‘Less severe’ meaning those that are on the lower end of the respective Psychiatric and Clinical Rating Scales
[79] Op. Cit., n2 at [26]
[80] J v SSHD [2005] EWCA Civ 629
[81] “Bringing the Mountain to Mohammed: Article 3 Medical Cases and Suicide Cases after AM Zimbabwe v SSHD [2020] UKSC 17 | 1 MCB” (1 MCB, April 30, 2020)
[82] Ibid
[83] Ibid
[84] Op. Cit., n2 at [31]
[85] Ibid
[86] See example: Home Office Country Policy and Information Note, Ethiopia: Background Information Including Internal Relocation, 10.2.1
[87] See example: “Mental Health Is Dismissed within My Culture” (Time to Change, January 15, 2018)
[88] Op. Cit., n19 at para 9 of the Joint Dissenting Opinion
[89] Ibid at para 7
[90] Op. Cit., n28
[91] Op. Cit., n17
[92] UKBA, Section 33(2)(a)
[93] Immigration Rule 398
[94] Redefyne, “Priti Patel Unveils New Laws on Asylum Seekers – EU Today” (Eutoday.net, 2020)
[95] Edward Malnick, “Judges Reined in on Using Human Rights Laws to Block Deportations” (The Telegraph, October 17, 2020)
[96] Harry Howard, “Judges Will Be Told What Constitutes ‘inhuman or Degrading Treatment’ in Deportation Cases” (Mail Online, October 18, 2020).
[97] A ‘medical expert’ is the term used to describe all expert evidence on mental conditions, including doctors, psychologists, psychiatrists and those experts on medical facilities in the receiving states
[98] Practice Directions of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, Section 10
[99] Mark Henderson, Rowena Moffatt and Alison Pickup, “Best Practice Guide to Asylum and Human Rights Appeals” (Electronic Immigration Network 2020)
[100] Ibid
[101] Ibid
[102] Op. Cit., n53
[103] Op. Cit., n53 at p.28 to 34
[104] Op. Cit., n2 at [31]
[105] Op. Cit., n2 at [23], [32] and [33]
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