Immigration Solicitors

Article 3 of the European Convention on Human Rights prevents removal from the UK to a country where there are substantial grounds for believing an individual will face a real risk of serious harm including torture, inhuman or degrading treatment or punishment.

For individuals who are suffering from serious or life-threatening illness and receiving treatment in the UK, the idea of being returned to a country where the treatment they rely on to keep them relatively healthy or prolong their life will be unavailable or not as effective would seem to meet the Article 3 test. However for the last 10 years, the courts have applied a very high threshold in these cases and since N v UK, to be permitted to remain in the UK, individuals have had to show their case was exceptional and the humanitarian considerations compelling, essentially that their illness was at a critical stage with death imminent and they would not receive any treatment abroad. A serious reduction in life expectancy and the inferiority of treatment was not considered exceptional in that case but there was no guidance provided as to what would be considered exceptional.

This year the European Court of Human Rights offered a glimmer of hope through the case of Paposhvili v Belgium Applcn No. 41738/10. Mr Paposhvili argued that Article 3 should offer more than a right to die with dignity and that his case reached the exceptional threshold. Sadly Mr Paposhvili, who suffered from multiple health issues including Leukaemia and TB died before his case was heard but the court went on to provide guidance on the health and social circumstances which would meet the test in N and held (§183):

“… that the “other very exceptional cases” within the meaning of the judgment in N v the United Kingdom (§43) which may raise an issue under 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.”

The Court also decided that the responsibility for assessing whether the care in the receiving state would be accessible and adequate should not be the applicant’s.

The clarification of the test is already benefiting our clients and this month, our clients R and N were granted leave to remain in the UK on medical and family life grounds. R is a long term sufferer of Cystic Fibrosis and her condition is now at an end stage. Her prognosis without a lung transplant is two years and her current treatment is designed to keep her sufficiently well to be able to undergo organ transplantation – which without status in the UK is unavailable to her. Even so, she spends weeks at a time in hospital with lung infections. Her husband never knows whether she will make it through each hospital admission. He is her principal carer and helps her clear her lungs at night with chest percussions, ensures she eats and makes her walk each day. When she is in hospital, he goes in to wash her hair. The couple receive psychological support and the psychologist reported that although both are used to dealing with R’s condition, one of the principal problems for them was coming to terms with the prospect of loss and separation. R’s doctors confirmed that she would be unable to take a flight to her home country without the real risk of a fatal lung collapse. The Home Office refused the couple’s application on the basis that R was not at imminent risk of death and there were other means of reaching South Africa other than a long haul flight, although they did not say what these were. It was difficult for the couple to face a Tribunal hearing. They were frightened by the prospect of failure but also struggled to articulate their feelings about the progress of R’s illness.

The Judge allowed the couple’s appeal, recognising that the risk of a potentially fatal journey would breach Article 3 and that medical evidence which confirmed that not all the medications relied on by R were available in South Africa or accessible to her within 12 months also indicated that return would lead to suffering which breached Article 3. Her husband succeeded under Article 8.

What R and N hope for now is that she can re-join the list for a lung transplant which will improve her life expectancy by a few years and that if her health improves, even in the short term, N can go back to work.

Immigration Director Zofia Duszynska and the Harrow Immigration team acted in this appeal.

Zofia Duszynska is a Director in the Immigration department at the Harrow office. Joining Duncan Lewis in 2015 she specialises in asylum working, representing victims of torture, human trafficking and gender-based prosecution alongside those excluded from protection under the Refugee Convention. She has established a reputation for obtaining international protection in the UK for adults and children trafficked for domestic servitude, sexual and labour exploitation and was a founder member of ATLeP (Anti-Trafficking Legal Project); an information network of lawyers and specialist practitioners assisting victims of trafficking.

Duncan Lewis Immigration Solicitors

Duncan Lewis operates the largest immigration team in the UK with a broad practice representing business and individual vulnerable clients at all levels in all aspects of personal immigration, asylum/human rights and nationality matters and is the dominant legal firm in the UK for the provision of publicly funded immigration legal services for asylum, immigration detention, bail, deportation appeals and EC law issues. The firm’s Immigration practice was recommended by Legal 500 UK 2016 as a Top Tier Immigration Practice in London and Wales and as a Leading Immigration Practice in the Midlands area respectively. With more than 200 specialised staff providing assistance in more than 70 different languages, all of Duncan Lewis’ Immigration lawyers are specialists in their respective fields under the Law Society's Immigration & Asylum Accreditation Scheme. Duncan Lewis Immigration lawyers provide specialist immigration services from offices throughout London and across the UK.