England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE ALIS
AA104362104

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/07/2018

Lord Justice Flaux:

Introduction

1. The appellant is a national of the Occupied Palestinian Territories born on 24 December 1983, who arrived in the United Kingdom after leaving Gaza on 20 October 2013. He claimed asylum but his claim was refused in a refusal letter dated 13 November 2014. A decision was made to remove him on 18 November 2014, which he appealed to the First-tier Tribunal. By a decision promulgated on 13 April 2015, the First-tier Tribunal Judge dismissed his appeal on all grounds, finding that his claim that he was in need of international protection because of the risk of persecution on return to Gaza lacked credibility.
2. The appellant appealed to the Upper Tribunal and his appeal was heard by Deputy Upper Tribunal Judge Alis on 20 August 2015. The Judge found that there had been an error of law by the First-tier Tribunal Judge in considering Article 3 of the ECHR, in failing to engage with the country evidence which was before him and adjourned the appeal to a hearing on 12 October 2015 for further evidence and submissions. By his decision promulgated on 22 October 2015, the Judge remade the decision in respect of Article 3 and dismissed the appeal.
3. The appellant now appeals to this Court with the permission of Arden LJ.

The decision of the Upper Tribunal

4. The Judge identified the starting point in considering the risk to the appellant and his wife (also Palestinian and dependent on him) as being the position set out in the Country Guidance case of HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC), [221]-[222] of which he cited:

"221.  We do not see any material difference in this case between the level of risk and the nature of the risk to which the appellants are exposed in respect of asylum and Article 3 claims.  We note that it is not argued that Article 15(c) of the Qualification Directive is applicable in this case.

222.  Our assessment of the background evidence is that it clearly shows a harsh state of affairs in Gaza which reflects a deterioration beyond the situation prior to the Operation Cast Lead hostilities.  The infrastructure of Gaza is significantly depleted, and there are problems of access to electricity and clean water and there are limits on the amount of products that are brought into the territory.  We do not seek to undervalue the level of difficulty that the appellants in this case, and indeed other residents of Gaza, face in the territory.  But we consider that the tests set out in the Refugee Convention as applied in the case law and under Article 3 are set at a level of risk which is higher than that which would be experienced by the appellant and her family in this case on return."

5. At [6] of his decision the Judge said that to succeed the appellant would either have to demonstrate a significant worsening of the situation since that Country Guidance or some other factors that would lead the Tribunal to conclude that returning the appellant would be a breach of the appellant's rights.
6. The Judge then summarised the parties' submissions, referring first to the submissions of Ms Kerry Smith, then counsel for the appellant who submitted that the general situation facing Gaza citizens and general facts facing the appellant and his wife gave rise to a claim for protection under Article 3. She referred to the medical evidence in relation to the appellant's wife who was then 36 weeks pregnant, that there were serious concerns that her mental condition would deteriorate if the claim were refused. Ms Smith submitted that the situation on the ground was bleak, referring to the expert report of Dr George. The country evidence made clear the majority of the population were refugees and only a small proportion of promised funds had been delivered to the authorities by donating nations. Each case had to be considered on its merits and here the family issues tipped the balance in favour of the appellant.
7. The Home Office Presenting Officer accepted the conditions in Gaza were not good and the majority of the population were refugees. However, he relied upon the fact that the UNRWA was fully operational in Gaza and providing support for most of the population. Whilst the wife's health issues had to be taken into account, the medical evidence was not sufficient for the appeal to be allowed.
8. At [9] to [13] of his decision, the Judge then summarised the country evidence which had been placed before him. At [14] he summarised the medical evidence that the wife currently suffered depression and anxiety disorder and had suffered PTSD, being prescribed Fluoxetine. She was viewed as posing a high risk of deterioration. She had suicidal thoughts. The doctor concluded that her condition was exacerbated by the stress associated with the appeal and the threat of deportation and was likely to worsen if the appeal failed.
9. In the Discussion section of his decision, the Judge noted that the Upper Tribunal in the Country Guidance case of HS in 2011 considered the situation against the background of the infrastructure of Gaza being significantly depleted with problems of access to electricity and clean water and limits to products brought into the territory, but still considered the circumstances had not reached a level where Article 3 was engaged. At [16] the Judge commented that arguably little had changed since 2011 save for further conflict and destruction following a period of rebuilding and development. He said: "Events on the ground may have happened but in reality nothing else has changed". At [17] he noted that aid to rebuild the country was being brought in, albeit more slowly than anyone would like. He said: "For my purposes it matters little who is to blame as I am concerned with the position on the ground".
10. At [18] the Judge said that Ms Smith accepted that without any additional factors, the appeal on Article 3 grounds would fail but that the wife's medical condition tipped the decision in the appellant's favour. In relation to medical facilities available in Gaza the Judge noted that the country evidence indicated that medical facilities were affected, hospitals and clinics were still operating.
11. At [20], the Judge said that the bar in medical cases for an Article 3 claim was very high, relying on the decision of the House of Lords in N v SSHD [2005] UKHL 31 where the test laid down was whether the claimant's medical condition had reached such a critical stage (i.e. he was dying) that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services needed to prevent acute suffering whilst he was dying. That decision was upheld by the European Court of Human Rights: N v United Kingdom (2008) 47 EHRR 39 which said that in medical cases Article 3 only applied in very exceptional cases particularly as the suffering was not the result of an intentional act or omission of a State or non-State body. The Judge noted that in GS (India) [2015] EWCA Civ 40; [2015] 1 WLR 3312, this Court held that the case of a person whose life would be drastically shortened by the progress of natural disease if removed to his home state did not fall within the paradigm of Article 3.
12. The Judge noted at [21] that the appellant and his wife did have family in the Gaza Strip. Her family were UNRWA refugees and had access to healthcare facilities albeit criticisms of the facilities were made by the appellant in his witness statement. The Judge said at [22] that the country conditions were not good but did not in themselves engage Article 3. He said at [23] that Ms Smith accepted that the situation currently existing in the Gaza Strip did not reach the necessary threshold.
13. The Judge said at [24] that the appellant's wife's problems were supported by the medical evidence but he was not satisfied that they tilted the scales sufficiently in their favour so as to engage Article 3 of the ECHR or Article 15(c). The fact that medical facilities are better here does not mean the appeal succeeded. The wife was pregnant but pregnancy was not unheard of in the Gaza Strip. She may be depressed about their plight but that did not engage Article 3. The evidence was that there were medical facilities available albeit under different conditions. The appeal was dismissed.

The grounds of appeal

14. In summary the grounds of appeal are as follows:

(1) The Deputy Upper Tribunal Judge misdirected himself in law in applying the test in N v SSHD since (i) this was not a case where it was argued that the wife's medical condition per se rendered their removal a breach of Article 3. Rather the appellant's case was that whether the conditions in Gaza gave rise to a breach depends upon the characteristics of the individuals and a highly relevant characteristic was the state of the wife's health; (ii) the predominant cause of the humanitarian crisis in Gaza was the conflict between Israel and Hamas so that the N test is not applicable: see Sufi & Elmi v United Kingdom (2012) 54 EHRR 9;

(2) In considering whether the removal of the appellant and his wife would breach Article 3, the Judge failed to consider cumulatively all the relevant factors, instead finding the country conditions in themselves did not engage Article 3 and the wife's medical condition did not in itself engage Article 3.

(3) In concluding that in reality nothing had changed in Gaza since the Country Guidance case in 2011, the Judge failed to have proper regard to the country evidence before him, which demonstrated a significant deterioration in Gaza as a result of the conflict in 2014.

15. Arden LJ gave permission to appeal on all the grounds, saying: "Sufficiently arguable that the Upper Tribunal erred in law in not considering whether there was a real risk of a violation of Article 3 as a result of multiple factors taken together, and that as a matter of general principle this is required in Article 3 cases".

The Article 3 jurisprudence

16. Before considering the parties' submissions in a little more detail, I propose to summarise the law on Article 3 which is well-settled by two decisions of this Court: GS (India) v SSHD [2015] EWCA Civ 40; [2015] 1 WLR 3312 and SSHD v Said [2016] EWCA Civ 442; [2016] Imm AR 5. At [38] of GS (India) Laws LJ considered how the Court should address the issue of the ECHR being a "living instrument" whilst being loyal to the founders' agreement. He said:

"The notion that the modern scope of ECHR rights may be resolved by asking whether the States parties might have consented to this or that outcome suggested by circumstances which were or might have been beyond contemplation when the text was agreed is surely problematic. I think the best one can do is to confine any implication or enlargement to situations which have some affinity with the paradigm case; situations which are, so to speak, within the spirit of the paradigm case, whose identification therefore assumes a considerable importance."

17. At [39] he identified the paradigm case of a violation of Article 3 as an intentional act which constitutes torture or inhuman or degrading treatment or punishment. As Laws LJ noted later in his judgment at [46], the case of someone whose life will be drastically shortened by the progress of natural disease if he is removed to his home state does not fall within the paradigm. Accordingly in such cases, the Strasbourg Court had set a very high threshold as to when such a case would constitute a violation of Article 3, effectively limited to "deathbed" cases: D v United Kingdom (1997) 24 EHRR 423 and N v United Kingdom (2008) 47 EHRR 39. He cited at [50] of his judgment [42] and [43] of the judgment of the Strasbourg Court in N:

"42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles. Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.  In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country."

18. Laws LJ then reviewed the decisions of the Strasbourg Court in MSS v Belgium and Greece and Sufi & Elmi v United Kingdom (2012) 54 EHRR 9. The latter is of particular relevance in the present context. The case concerned Somalian nationals who had committed criminal offences in this country. The Secretary of State was proposing to deport them to Somalia, which was resisted on the grounds that the dire humanitarian conditions in Somalia were such that their return would be a breach of Article 3. The Government contended that the appropriate test for assessing whether the dire humanitarian conditions reached the Article 3 threshold was that set out in N v United Kingdom so that humanitarian conditions would only reach the threshold in very exceptional cases where the grounds against removal were compelling.
19. The Strasbourg Court rejected that contention in the particular circumstances of that case because the humanitarian crisis in Somalia was predominantly due to the direct and indirect actions of the parties to the conflict there, so that the "very exceptional circumstances" test in N was not applicable. At [282]-[283], the Court said:

282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State's lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N v the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population… This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab's refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis are living in a situation of serious deprivation…

283. Consequently, the Court does not consider the approach adopted in N v the United Kingdom to be appropriate in the circumstances of the present case. Rather, it prefers the approach adopted in MSS v Belgium and Greece, which requires it to have regard to an applicant's ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame (see MSS v Belgium and Greece, cited above, paragraph 254)."

20. Laws LJ commented on that case and MSS in [57]-[59] of his judgment:

"57. There appears to be a fork in the road, on the court's own reckoning, between the approach in N v UK on the one hand and MSS on the other. It is on the face of it difficult to find any governing principle, applied across the learning, which provides a rationale for departures from the Article 3 paradigm. There are, however, certain strands of reasoning. In MSS it is to be noted that Greece (unlike Belgium) was not impugned for breach of Article 3 on account of anything that would happen to the applicant in a third country to which Greece proposed to remove him, but by reason of his plight in Greece itself. One may compare the case of Limbuela [2006] 1 AC 396, in which the House of Lords was concerned with the dire straits to which certain asylum-seekers in this country were reduced for want of access to public funds, and held that there was a violation of Article 3. In MSS a critical factor was the existence of legal duties owed by Greece under its own law implementing EU obligations: paragraphs 250 and 263 which I have cited; and it is clear that the court attached particular importance to the fact that the applicant was an asylum-seeker.

58. In Sufi & Elmi the court avowedly followed MSS (paragraph 283). In this case the critical factor was that the "crisis is predominantly due to the direct and indirect actions of the parties to the conflict": paragraph 282. This is closer to the paradigm than the ill-treatment in question in MSS, for it must have involved deliberate acts.

59. Thus in MSS and Sufi & Elmi the court looked for particular features which might bring the case within Article 3, and found them – in Greece's legal duties and the applicant's status as an asylum-seeker, and in the nature of the crisis in Somalia."

21. Said concerned a Somalian national who had received a sentence of 5 years imprisonment for rape in 2009 and was thus subject to the automatic deportation provisions under the UK Borders Act 2007. He resisted deportation relying inter alia on Article 3. The Upper Tribunal upheld his appeal from the First-tier Tribunal, holding that following the Country Guidance case MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) he would be at risk of being destitute and finding himself in a camp for internally displaced persons (IDP) where conditions were poor. The Upper Tribunal Judge found that he suffered from depression and PTSD and was thus a vulnerable individual who would be unable to cope with the stress of living in an unstable environment and had little prospect of a livelihood on return.
22. In the main judgment, given by Burnett LJ, as he then was, the Article 3 jurisprudence summarised above was set out and the conclusion reached at [18]:

"These cases demonstrate that to succeed in resisting removal on article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the D and N cases."

23. This Court evidently considered that the Country Guidance case showed that the conditions in Somalia, although harsh, could no longer be attributed to the direct and indirect actions of the parties to the former conflict so that the N test applied to the applicant's case and he could not satisfy that test, hence the Secretary of State's appeal succeeded.

The parties' submissions

24. On behalf of the appellant, Mr Manjit Gill QC submitted that the Deputy Upper Tribunal Judge by applying the N test had applied the wrong test. Given that the dire humanitarian conditions in Gaza were a result of the direct and indirect actions of the parties to the conflict in Gaza, the Judge should have applied the test enunciated at [282] and [283] of Sufi & Elmi. The Judge had also erroneously assumed that this was just a medical case whereas the appellant's case was and had been that they faced inhuman and degrading treatment in Gaza as a result of the dire humanitarian conditions there and their personal circumstances, including her mental health, the fact that she was pregnant (the child is now nearly 3) and that the appellant's family home in Gaza had been destroyed and the family lived in difficult conditions without electricity or clean water.
25. Mr Gill QC relied upon evidence of the country conditions which had been before the Upper Tribunal for two purposes. First, he submitted that the consequences of the Israeli military operation known as Protective Edge in 2014 had been far more devastating in terms of the destruction of and damage to homes and infrastructure than previous military operations and had caused difficulties for UNRWA. Conditions were particularly bad for women and children. Second, he submitted that that evidence demonstrated that the predominant cause of the dire humanitarian conditions in Gaza was the ongoing conflict between Israel and Hamas. However, he submitted, the Judge had simply not analysed this country evidence properly. If he had done, he could not have concluded that little had changed in Gaza since the Country Guidance case in 2011. Furthermore, if he had analysed the country evidence properly, he could not have dealt with the case on the basis that the N test was applicable.
26. On behalf of the Secretary of State, Ms Julie Anderson submitted that after the appellant's persecution case had been rejected as incredible, this had only been put forward as a medical case. She submitted that the point now relied upon by reference to Sufi & Elmi had simply not been argued before the Upper Tribunal, certainly not in the clear way it was now put. Although in her written submissions she had suggested that this Court should therefore not allow the point to be run, she accepted in her oral submissions that the Court had jurisdiction to allow points to be argued which had not been raised in the Court or Tribunal below, although the jurisdiction should be used sparingly.
27. She submitted that the decision of this Court in Said demonstrated that it was only in very narrow circumstances that the Court would allow an Article 3 claim which departed from the paradigm. If there was to be such departure, it had to be on the basis of principle which here was that the approach adopted in Sufi & Elmi only applied where there was an element of intentionality on the part of the parties to the conflict. There al-Shabaab, an extremist organisation was corralling the population in certain areas and refusing them access to international aid. The situation in Palestine was not comparable not least because of the permanent presence of UNRWA to protect the refugee population. If the Sufi & Elmi approach were applied here, it would apply to other receiving states where there were dire humanitarian conditions.
28. She relied upon the decision of the Strasbourg Court in SHH v United Kingdom (2013) 57 EHRR 18. That case concerned an Afghan national who was disabled in a rocket launch attack and came to the United Kingdom some four years later. The Court held that the N test applied to his Article 3 claim and distinguished Sufi & Elmi holding at [91] that although the situation in Afghanistan was very serious, it could not be attributed to the ongoing conflict. Ms Anderson submitted that the same conclusion would have been reached here even if the Sufi & Elmi point had been raised.

Analysis and conclusions

29. I was unimpressed by Ms Anderson's submissions to the effect that the matters raised by the grounds of appeal were not argued before the Upper Tribunal. First and foremost, Arden LJ gave permission for all the grounds to be argued before the full Court so that, even if the points now raised had not been argued, I consider that this is a case in which the court should permit these points to be argued before us. Second, whilst it is unclear whether Sufi & Elmi was specifically referred to by Ms Smith, it does seem tolerably clear that she was urging on the Upper Tribunal what might be described as a holistic approach based on Pretty v United Kingdom (2002) 35 EHRR 1, not the narrow, exceptional circumstances approach of the medical cases such as N.
30. In my judgment, whether the case was cited before him or not, the Deputy Upper Tribunal Judge failed to have regard to the approach adopted in Sufi & Elmi and therefore failed to consider properly what test should be applied to the facts of the present case. He only considered and applied the N test and therefore misdirected himself.
31. As noted above, Ms Anderson submitted that, even if we reached that conclusion, we should dismiss the appeal because, as SHH and Said demonstrated, the less stringent Sufi & Elmi test would not apply in the present case as it could not be said that the dire humanitarian conditions in Gaza were such as were attributable to the direct and indirect actions of the parties to the conflict in Gaza or that the element of intentionality was present.
32. Having considered the country evidence to which Mr Gill QC referred the Court, I consider that it is sufficiently arguable that the conditions in Gaza are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of [282] of Sufi & Elmi and that there was an element of intentionality if that is a necessary ingredient before the approach in that case will be adopted. I also consider that the Deputy Upper Tribunal Judge failed to have proper regard to the country evidence, in particular the evidence as to the seriously worsened position after the Israeli military operation in 2014.
33. Accordingly, I would allow the appeal and remit the case for reconsideration of the evidence and the law by a differently constituted Upper Tribunal. Whether the case is one to which the Sufi & Elmi approach should apply will be a matter for that Upper Tribunal to decide.
34. Finally, our attention was drawn to the fact that the Country Guidance in HS not only pre-dates the decision in Sufi & Elmi but is also dealing with the position as it was up to 2010, some years before the 2014 military operation with its serious impact on the population and the infrastructure. Counsel suggested that perhaps a new Country Guidance case on Gaza should be considered. Ultimately that is a matter for the Upper Tribunal, not this Court, although I can see the sense of the suggestion given that, on any view the Country Guidance in HS is somewhat out of date.

Lady Justice King

35. I agree.