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 WOODCRAFT
Appeal Nos IA/32788/2015 & IA/32789/2015

AND ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE PICKUP
Appeal No AA/03056/2014, [2014] UKAITUR AA030562014

		& C5/2016/0538 Royal Courts of Justice Strand, London, WC2A 2LL
		09/11/18

Lord Justice Hickinbottom:

Introduction

1. Article 3 of the European Convention on Human Rights provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

These two appeals concern the protection of article 3 against removal from the United Kingdom in cases where it is said that an absence of, or lack of access to, medical treatment in the receiving state will result in a decline in health of the foreign national it is proposed to return.

2. The test to determine when article 3 may prevent removal of a foreign national from the UK in a medical case was authoritatively settled so far as domestic law is concerned in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296 ("N"), as endorsed by the Grand Chamber of the European Court of Human Rights ("ECtHR") in N v United Kingdom (2008) 47 EHRR 39.
3. Prior to N, the leading case in the field was D v United Kingdom (1997) 24 EHRR 423 ("D"), an ECtHR case concerning the expulsion of a foreign national in an advanced stage of AIDS and very close to death who (it was found) would receive no comfort or moral support while dying if returned to his country of origin, in which the ECtHR held that article 3 prevented removal.
4. D was described later by the ECtHR as "very exceptional" (Amegnigan v The Netherlands (Application No 25629/04) (25 November 2004) (unreported, but cited by Lord Hope of Craighead in N at [47])). In N at [50], Lord Hope giving the leading speech set out the test for "very exceptional" in these circumstances as derived from the Strasbourg authorities, as follows:

"…. For the circumstances to be … 'very exceptional' it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. …"

To similar effect, see [69]-[70] per Baroness Hale of Richmond and [94] per Lord Brown of Eaton-under-Heywood. N also suffered from AIDS, and the evidence was that, if she were returned to Uganda where the treatment she needed was not available, she would die within one to two years; whereas, if she were to remain in the UK where that treatment was available, she could live for decades. The Immigration Appeal Tribunal found that the case was not "very exceptional"; and it refused her appeal. That decision was upheld by this court and the House of Lords.

5. The House of Lords well appreciated the difficulty in explaining the difference between D's case and N's case in purely humanitarian terms. As Laws LJ explained in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312 at [39] and [66], D represents a "deathbed" exception to the article 3 paradigm violation, namely an intentional act which constitutes torture or inhuman or degrading treatment or punishment. The rationale for the exception and its limitations were made clear in N. Lord Nicholls of Birkenhead said (at [15]):

"Is there, then, some other rationale underlying the decisions in the many immigration cases where the Strasbourg court has distinguished D's case? I believe there is. The essential distinction is not to be found in humanitarian differences. Rather it lies in recognising that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such 'medical care' obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened. But in the case of D, unlike the later cases, there was no question of imposing any such obligation on the United Kingdom. D was dying, and beyond the reach of medical treatment then available."

I have already quoted the relevant passage from the speech of Lord Hope (see paragraph 4 above), who considered that the speech of Baroness Hale was essentially in the same terms . Lord Brown agreed with Lord Hope. At [93]-[94], he said:

"93. The logical distinction between the two very different scenarios presented respectively by D and the later cases is surely this. D appeared to be close to death; paragraph 21 of the Court's judgment there records that at the hearing on 20 February 1997: 'according to his counsel, it would appear that the applicant's life was drawing to a close much as the experts had predicted' (a medical report of June 1996 having stated that D's prognosis was limited to 8-12 months). The critical question there was accordingly where and in what circumstances D should die rather than where he should live and be treated. D really did concern what was principally a negative obligation, not to deport D to an imminent, lonely and distressing end. Not so the more recent cases including the present one. Given the enormous advances in medicine, the focus now is rather on the length and quality of the applicant's life than the particular circumstances of his or her death. In these cases, therefore, the real question is whether the State is under a positive obligation to continue treatment on a long-term basis. It is precisely in this type of case that the Court's statement in D (para 54), that those subject to removal 'cannot in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state', has particular application.

94. What then must be established to bring a case of this nature within the category of very exceptional cases represented by D? I am content to adopt the test stated by my noble and learned friend, Lord Hope of Craighead: it must be shown that the applicant's medical condition has reached such a critical state, that there are compelling humanitarian grounds for not removing him or her to a place which lacks the medical and social services which he or she would need to prevent acute suffering."

6. When N was considered by the ECtHR, it endorsed the test applied by the House of Lords and echoed the observations of the House of Lords I have quoted. The Grand Chamber said:

"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] 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.

44.  … [I]nherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see [Soering v United Kingdom (1989) 11 EHRR 439 ("Soering") at paragraph 89]). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States."

7. In respect of article 3 medical cases, the decision of the House of Lords in N was therefore clear, principled and binding on all domestic courts and tribunals; and endorsed by the ECtHR.
8. However, the ECtHR has recently revisited the issue. In Paposhvili v Belgium [2017] Imm AR 867 at [183], the court said:

"The court considers that the 'other very exceptional cases' within the meaning of the judgment in [N]... 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…".

That guidance is clearly different from – and, to an extent, more relaxed than – that in N.

9. The consequences of Paposhvili for medical cases in which there is reliance on article 3 were considered by this court in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64; [2018] 1 WLR 2933, in which Sales LJ gave the lead judgment with which Patten LJ and I agreed. For the purposes of the appeals before us, it is unnecessary to set out Sales LJ's comprehensive analysis in detail. The following, relevant to the appeals before us, can be drawn from the case.

i) Despite the guidance given in Paposhvili, as a result of the principle of stare decisis, i.e. the usual rules of precedent in this jurisdiction, the test in N remains binding on this court, and indeed all tribunals and courts in this jurisdiction, subject only to the Supreme Court using its power to overrule it (see [30]).

ii) Paposhvili at [183] relaxes the test for violation of article 3 in the case of removal of a foreign national with a medical condition (see [37]). As Sales LJ put it at [38]:

"… [T]he boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely 'rapid' experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state."

iii) However, whilst acknowledging that relaxation of the test, Sales LJ considered "it does so only to a very modest extent". The article 3 threshold in medical cases remains high. He said:

"41. It is true that if one read the phrase 'would face a real risk… of being exposed… to a significant reduction in life expectancy' in [183] out of context, it might be taken to indicate a very wide extension of the protection of article 3 in medical cases, since in very many such cases where a foreign national is receiving treatment at a higher level of effectiveness in the removing state than would be available in the receiving state (e.g. in the case of those suffering from AIDS) they would be able to say they would face a real risk of a significant reduction of life expectancy if they were removed. But this is not a tenable interpretation of [183] of Paposhvili, read in its proper context. [N] was itself a case where removal resulted in a very significant reduction in life expectancy (as was also noted in Paposhvili at [178]), in which no violation of article 3 was found, and the Grand Chamber in Paposhvili plainly regarded that case as rightly decided. [N] was itself a Grand Chamber judgment, decided by 14 votes to 3. It is impossible to infer that by the formula used in [183] of Paposhvili the ECtHR intended to reverse the effect of [N]. Moreover, the Grand Chamber's formulation in [183] requires there to be a 'serious' and 'rapid' decline in health resulting in intense suffering to the article 3 standard where death is not expected, and it makes no sense to say in the context of analysis under article 3 that a serious and rapid decline in health is not a requirement where death rather than intense suffering is the harm expected. In my view, the only tenable interpretation of [183], read in context, is the one given above.

42. In that regard, it is also significant that even on the extreme and exceptional facts of the Paposhvili case, where the applicant faced a likelihood of death within 6 months if removed to Georgia, the Grand Chamber did not feel able to say that it was clear that a violation of article 3 would have occurred for that reason had he been removed…".

iv) In respect of the correct approach and burden of proof, Sales LJ said this (at [16]):

"It is common ground that where a foreign national seeks to rely upon article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country: see, e.g., [Soering] at [91], which is reflected in the formulations in Paposhvili at [173] and [183]…. In Paposhvili, at [186]-[187]…, the Grand Chamber of the ECtHR has given guidance how he may achieve that, by raising a prima facie case of infringement of article 3 which then casts an evidential burden onto the defending state which is seeking to expel him."

10. In the two cases before us, the Applicants and Appellant – rightly – concede that (i) the test for article 3 medical cases set out in N as explained in AM (Zimbabwe) is binding on this court, and (ii) none of them is able to satisfy that test. However, they submit that, unlike the individual cases in AM (Zimbabwe), they each satisfy the test in Paposhvili; and this court, whilst bound to refuse their appeals, should give permission to appeal to the Supreme Court to enable that court to reconsider N in the light of Paposhvili.
11. Before us, David Chirico and Keelin McCarthy both of Counsel appeared for the Applicants MM and MK; Stephen Knafler QC and Charlotte Bayati of Counsel for the Appellant MV; and Lisa Giovannetti QC and Rory Dunlop of Counsel for the Secretary of State. I would like to thank them all for their helpful submissions.

MM & MK (Malawi): Background

12. The background to this appeal is set out in my earlier judgment in which I referred the matter back to the Upper Tribunal (Immigration and Asylum Chamber) ("the UT") for further findings of fact ([2018] EWCA Civ 1365). For present purposes, I can be relatively brief.
13. The Applicants are nationals of Malawi. The First Applicant, MM, entered the UK on 5 September 2002 on a student visa. The Second Applicant, MK, entered on 10 April 2004 on a visitor visa. They married whilst lawfully in the UK.
14. In 2010, MM was discovered to be HIV positive; and, since May 2010, she has been treated with antiretroviral ("ARV") drugs. Initially, she suffered considerable side effects, and her therapy was varied until her HIV infection was satisfactorily controlled with a combination of two drugs, Kaletra liquid (which comprises a combination of Lopinavir and Ritonavir) and Truvada dispersible tablets. MM cannot take these drugs in tablet form because, as a result of an oesophageal stricture unconnected to her HIV, she is unable to swallow solids. Her condition, and thus the drug treatment, is chronic.
15. The Applicants remained in the UK with valid leave until April 2011, when MK's application for leave to remain as a student was refused, MM by that stage being his dependent.
16. On 1 February 2012, the Applicants applied for leave to remain on human rights grounds. That was refused, and the refusal was maintained on an internal reconsideration on 30 September 2015. That decision had an in-country right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FtT") which was exercised.
17. In a determination promulgated on 18 May 2017 (by which time the ECtHR had handed down its judgment in Paposhvili), First-tier Tribunal Judge Walters allowed the appeal on several grounds, including the First Applicant's appeal on article 3 medical grounds. The Secretary of State appealed, and in a determination promulgated on 11 August 2017, Deputy Upper Tribunal Judge Woodcraft allowed the appeal from the FtT, and remade the decision dismissing the appeal from the Secretary of State's refusal on all grounds. He concluded that the UK would not breach its obligation under article 3 by removing MM to Malawi. In doing so, the Deputy Judge applied the criteria in N, which he was bound to do; although he appears in fact to have equated the test in Paposhvili with that in N. He also said this (at [33]):

"It is still unclear what the position is regarding the availability of treatment in Malawi. [MM] has put forward evidence to suggest that liquid form treatment is not available but clearly some treatment is available. Given the paucity of evidence before the judge, it was in my view a material error of law for the judge to find as he did that to return [MM] to her country of origin would be to breach her rights under article 3. In my view no such breach of this country's obligations will occur."

18. The Applicants applied to this court for permission to appeal. In particular, it was said that, given the inconclusive nature of the evidence, the Deputy Judge erred in placing the burden of proof where he did; but also that MM's case would satisfy the Paposhvili criteria.
19. On 9 February 2018, I gave directions for the parties to make submissions on whether MM's circumstances would satisfy the test in N and/or Paposhvili. The submissions confirmed that it is common ground that she does not satisfy the criteria in N. With regard to those in Paposhvili, it was contended on behalf of the Applicants that they were satisfied. The Secretary of State did not concede as much; but accepted that, on the evidence as it stood, it is arguable that they might be satisfied. Furthermore, from those submissions, as presaged in the tribunal's determination, it appeared that there was an issue between the parties as to whether there was sufficient evidence before the FtT to make a determination as to the availability of appropriate treatment in ingestible form in Malawi; and, if there was not, what should be done.
20. At the hearing of the application for permission on 12 June 2018, and at the instigation of the Secretary of State, I referred the matter back to the UT under CPR rule 52.20(2)(b) for further facts to be determined in relation to two matters in issue, namely (i) as to the ingestible ARV drugs that would be available to MM if she were returned to Malawi, and (ii) on the basis of the available ingestible ARV drugs, the likely impact of MM's removal to Malawi on her health.
21. I directed the parties to agree questions for the UT to consider and determine, which they did. Those questions were incorporated into the Order of this court dated 15 June 2018. I directed that the application for permission be adjourned pending the determination of those questions by the UT; and for it to be restored before a full court on a rolled-up basis. It was hoped and expected that the further findings of the tribunal would resolve the remaining issue between the parties.
22. The UT (the Chamber President (Lane J) and Upper Tribunal Judge Smith) heard the matter on 8 October 2018; and I am grateful for their prompt determination promulgated on 12 October 2018, which enabled the application in this court to be heard with the appeal in MV (Sri Lanka) which raises similar issues.
23. Before the UT in 2017, the Applicants had relied upon evidence from Dr Ade Fakoya, a physician who is Senior Disease Coordinator HIV at the Global Fund to Fight AIDS, Tuberculosis and Malaria based in Switzerland; and a letter from Stephen Iphrani, Programs Manager at Coalition of Women Living with HIV and AIDS in Malawi. In addition to that evidence, Dr Fakoya produced additional written evidence for the recent UT hearing. At that hearing, the Secretary of State relied upon, amongst other things, a Home Office Country Information Document, Response to an Information Request: Malawi: HIV Treatment, dated 17 September 2018.
24. The UT set out its conclusions with regard to the questions posed, as follows. The agreed questions are in bold, with the answers immediately following.

"(1) Which (if any) forms of ARV treatment are available in Malawi and would be appropriate for the treatment of MM's condition if she could access them?

Lopinavir/Ritonavir (which MM currently takes combined as Kaletra) is available in liquid and pellet form in Malawi. MM's specialist confirms that MM could take Lopinavir and Ritonavir separately, if she were unable to take Kaletra. Truvada is available in Malawi, albeit only in tablet and not dispersible tablet form.

(2) Which of those appropriate and available forms of treatment are accessible to MM – i.e. (a) they come free or at an affordable cost and (b) she is able to ingest them, whether by swallowing them (in tablet or pellet form), chewing them or crushing them and dissolving them in water, without their losing their effectiveness.

Lopinavir/Ritonavir is available in liquid and pellet form in Malawi but, as part of a standard regimen, only to children. The Malawi Guidelines provide, however, for a non-standard regimen to be administered to HIV patients and we consider it inconceivable that those ARVs would not be administered in either of those forms to an adult in that way, where the alternative is serious physical decline, leading to death. MM would be able to ingest either liquid or pellets. Truvada is available only in tablet form but that can be crushed and administered with a liquid/soft food, which is the way in which MM takes other medication. Crushing this tablet will not adversely affect its efficacy.

ARV therapy in Malawi is free in public health facilities and subsidised in private health facilities. Even if payment is required for the specialist involvement in the administration of a non-standard regimen, we have no evidence that such payment would be unaffordable for MM.

(3) Having regard to (1) and (2) above, to what extent (if any) would return to Malawi cause (a) a decline in MM's medical condition; (b) physical and mental suffering; and/or (c) a shortening of MM's life expectancy.

In the light of our answers to questions (1) and (2), there is no real risk that returning to Malawi would cause a decline in MM's physical health. Her life expectancy would not be affected. MM's mental health condition could be managed as it is in the UK.

(4) Having regard to (1) to (3) would MM succeed if the principles in [Paposhvili] were applied?

In the light of our response, in particular to question (3), our conclusion is that MM would not succeed."

25. Therefore, in short, on the findings of fact made by the tribunal, the UT concluded that MM's appeal would fail even under the Paposhvili test.

MM & MK (Malawi): Discussion

26. The application for permission to appeal has now been restored in this court.
27. Given that it is a second appeal, the test for the grant of permission is that set out in CPR rule 52.7(2), namely that:

"(a) the appeal would –

(i) have a real prospect of success; and

(ii) raise an important point of principle or practice; or

(b) there is some other compelling reason for the Court of Appeal to hear it."

28. It is common ground that the appeal would have no prospect of success in this court, because MM cannot satisfy the criteria in N which this court is bound to apply. The only issue for this court is whether there is some other compelling reason for us to hear the appeal, namely that, although not satisfying the criteria in N, MM satisfies the criteria in Paposhvili; and consequently this court should grant permission to appeal and refuse the appeal, but grant permission to appeal to the Supreme Court or, at least, give the Applicants an opportunity and perhaps even encouragement to seek such permission from that court.
29. The findings of fact by the UT appear to undermine such a course; but, Mr Chirico submits, those findings are not fatal.
30. He has abandoned the Applicants' Ground 4 (article 8). However, he formally seeks to maintain Grounds 1 and 2, which are put in terms of a requirement for the guidance of this court on two matters, namely:

"1. Whether the 'very exceptional circumstances' test for article 3 medical claims identified in D, and applied domestically in N…, must be construed by the domestic courts compatibly with the decision of the ECtHR in Paposhvili to extend beyond 'deathbed' cases?

2. If the 'very exceptional circumstances' test is to be modified compatibly with Paposhvili, whether there are 'very exceptional circumstances' if a necessary drug is available, but not in the form that [the applicant] is able to ingest?"

However, those questions are answered – and sufficient guidance given – in AM (Zimbabwe) which, although he does not concede that it is correct, Mr Chirico accepts is binding on this court. Unless and until the Supreme Court holds otherwise, the domestic courts are bound to follow N as explained in AM (Zimbabwe). If a particular therapy is unavailable in the receiving state, then that may be sufficient to satisfy the criteria in N and/or Paposhvili; but that will always be a fact-specific question.

31. That leaves Mr Chirico with his Ground 3, which currently reads as follows:

"Whether the UT was correct to find that the judge at First-tier erred in finding that there is an investigative burden on [the Secretary of State], as articulated in Paposhvili, and, if a burden exists, what are its contents and the implications of [the Secretary of State's] failure?"

32. That too was considered, and guidance upon it given, in AM (Zimbabwe) (see paragraph 9(iv) above). But Mr Chirico now seeks permission to amend that ground, to replace it with the following:

"In its decision of 11 August 2017 and further reasons of 12 October 2018:

3(a) The UT on 11 August 2017 materially erred in overturning the FtT's determination on the grounds that the FtT had placed an investigative burden on the [Applicants]; the FtT approach, rather than that of the UT, is consistent with that required in the light of the judgment in Paposhvili. The decision of the FtT should be reinstated.

3(b) The UT on 12 October 2018 materially errs in its approach to the burden and standard of proof as between the parties and the onus of enquiry. In particular, the UT:

(i) Makes findings about the availability and accessibility of HIV treatment in Malawi which are not sustainable on the evidence before the UT and which are based upon speculation.

(ii) As a consequence, fails to identify that there are 'doubts' raised by the evidence provided by the [Applicants] within [186] of Paposhvili and that these doubts cannot rationally be said to have been 'dispelled' within [187] of Paposhvili by the evidence adduced by the Secretary of State.

(iii) In consequence or further, fails to identify that 'serious doubts' persist following examination of the relevant information and fails to direct itself under [191] of Paposhvili to the duty that thereby falls upon the Secretary of State to obtain 'individual and sufficient assurances from [Malawi], as a precondition for removal'.

(iv) Alternatively, places the burden of proof squarely on MM, rather than treating the onus as shared.

3(c) Further or alternatively, fails to take account of relevant evidence, takes account of irrelevant considerations, and/or reaches findings on the basis of no evidence, when determining the likely consequences of MM's removal to Malawi."

33. This application is very late – but the Secretary of State takes no objection to it on that ground. Ms Giovannetti submits that the grounds simply have no merit.
34. I agree: I do not consider there is force in any of these restated grounds.
35. Ground 3(a) contends that the UT erred in overturning the decision of the FtT, which should consequently be restored. As I understood his submissions, Mr Chirico accepts that this court cannot properly interfere with the UT determination on this ground. In any event, I do not consider that it is arguable. The key submission in support of Mr Chirico's proposition is that in its determination of 11 August 2017 the UT failed to conduct a full enquiry into the availability of ARV drugs in Malawi, as required by Paposhvili, because the Applicants had adduced evidence that such treatment might not be available and readily accessible in Malawi such that the Secretary of State had the evidential burden of rebuttal. However, in its determination, the UT applied the principle of stare decisis and (rightly) followed N rather than Paposhvili. Having done so, it did not conduct any further enquiry into the availability of ARV drugs in Malawi, because it did not have to do so – it could make no difference to the application of the criteria in N which MM did not satisfy. That further factual investigation was not performed until I directed the UT to conduct it to assist in the determination of the Applicants' putative application for permission to appeal to the Supreme Court. Therefore, the UT made no error in setting aside the determination of the FtT: indeed, it was bound to set it aside. Now that the UT has made factual findings upon which the inevitable conclusion is that the Paposhvili criteria are not satisfied, this submission is, in my view, not only wrong in law but perverse.
36. Grounds 3(b) and 3(c) are a courageous submission that the UT, particularly tasked with making findings of fact on the basis of the shifting burden of proof as described in Paposhvili and AM (Zimbabwe), adopted an incorrect approach and/or made perverse findings.
37. However, as Ms Giovannetti submitted, the tribunal clearly had the shifting burden of proof well in mind – they expressly refer to it in [70] of their determination – but, in the event, their determination did not turn on the burden of proof. They said (at [70]):

"We do not need to decide what Ms McCarthy [Counsel for the Applicants] calls the 'threshold issue' (in other words the standard to which the [Applicants] need to establish real risk) or at what point the burden passes to the [Secretary of State] to dispel serious doubts contained within the [Applicants'] evidence. Whether our conclusion is seen as being a rejection of the [Applicants'] evidence as meeting the necessary threshold or as accepting that the [Secretary of State's] evidence has dispelled any serious doubts arising from the [Applicants'] evidence, our findings are the same. There are no substantial grounds for believing that MM would be exposed to a serious, rapid and irreversible decline in her health on account of lack of availability or inaccessibility of treatment for her health condition."

38. In my view, the UT did not arguably err in its approach to its task. Indeed, this paragraph is phrased in appropriate terms. As Sales LJ explained in AM (Zimbabwe) at [16] (quoted at paragraph 9(iv) above), whilst the legal burden of proof is on an applicant to show that article 3 would be infringed if he were removed from the UK to the proposed receiving country, where he shows there are substantial grounds for believing that he would face a real risk of being subjected to treatment proscribed by article 3, then the burden moves to the Secretary of State to dispel that risk. In this case, Mr Chirico accepts that the availability and accessibility of Truvada is no longer in issue, as a result of the UT's factual findings. In respect of Kaletra, as set out in paragraph 24 above, the UT found that its component parts (Lopinavir and Ritonavir) are available in liquid and pellet form in Malawi, although only available in a standard regime to children. However, Malawi prescribing guidelines allow for a non-standard regimen to be administered to HIV patients and it is inconceivable that those ARVs would not be administered to MM where the alternative would be a serious decline in health leading to death. It found that MM would be able to ingest liquid or pellets; and that the drugs are available for free in public health facilities, but in any event MM would be able to afford the modest costs of the drugs if necessary. That is, at the very least, a clear finding that, insofar as the Secretary of State had any burden, any doubts raised by MM that she would risk suffering treatment proscribed by article 3 had been dispelled. In fact, the tribunal doubted whether MM had shown that there were substantial grounds for believing that she would face a real risk of being subjected to treatment proscribed by article 3. On the evidence and facts as the tribunal found them to be, I do not find that surprising. The tribunal did not arguably err in law in its approach.
39. Consequently, these sub-grounds could only succeed if any of the relevant findings of the UT were perverse. However, in my view, there is no realistic prospect of the Applicants establishing that any were perverse, essentially for the reasons set out in paragraph 35 of Ms Giovannetti's skeleton argument.
40. The tribunal's findings criticised by Mr Chirico are as follows.

i) He submits that the UT erred in finding that MM could ingest Kaletra pellets. However, that was a finding clearly open to the tribunal on the evidence. The evidence was that the pellets are so small that a baby would be able to take them in a feeding cup with milk. Mr Chirico referred to a warning that babies might aspirate pellets; but that is a different issue, not that they are too big to swallow, but that they are so small that they might be breathed in. There was no evidence before the tribunal that aspirating food was a problem or risk for MM. In any event, the finding concerning MM's ability to ingest pellets was immaterial to the tribunal's conclusion, because they found that the component parts of Kaletra (i.e. Lopinavir and Ritonavir) were available in liquid form in Malawi (see [36]); and, although only standardly available to children, they would be made available to MM in Malawi if she required them in that form (see [39] and following).

ii) Mr Chirico submitted that the UT could not have properly found that Kaletra (as opposed to its component parts) was available in Malawi, because the evidence of Mr Iphrani was that it was not. However, the tribunal dealt with that issue, noting that Mr Iphrani had spelled the drug incorrectly ("Coletra"), and the response from his source in the Malawi Ministry of Health may not have been rightly focused. In any event, the Applicant's own expert, Dr Fakoya, conceded that the availability of Kaletra did not matter, if its component ingredients were available in Malawi as the tribunal found they are.

iii) Mr Chirico also criticises the finding of the tribunal that, if removed to Malawi, MM would be prescribed liquid Lopinavir and Ritonavir which, in that form, is only standard for children. He relied upon paragraph 7 of the statement of Dr Fakoya dated 21 September 2018, in which he says that the Malawian healthcare profession is highly regulated "and doctors are not allowed to operate outside manufacturers' recommendations". It would be regarded as unethical to prescribe for an adult a formulation recommended only for children. However, the Malawi Guidelines for Clinical Management of HIV in Children and Adults – which were before the UT, and referred to by the tribunal in its determination – make clear that non-standard regimes can be prescribed "for complicated cases" (page 45) into which category this case would appear to fall. As Ms Giovannetti emphasised, the tribunal did not merely find that MM could be prescribed the liquid forms, but that she would be. Indeed, at paragraph 64(2) of its determination the tribunal said that it was "inconceivable" that she would not be. Mr Chirico suggests that that was not a proper finding, because liquid medication is, or may be, in short supply – but there is no evidential basis for that assertion. There is no evidence that shortages of supply (as opposed to other factors such as lack of social support or difficulties of access in particularly rural areas) explain the reference in the Malawi Country Information factsheet to only 49% of children with HIV in Malawi having access to ARV drugs. Indeed, Dr Fakoya said that the relevant medication was "readily available" in Malawi. There was no evidence that, by giving MM a liquid form of treatment, there would be any denial of treatment to a child or children. The evidence was that MM would have the support of her family in Malawi, and there was no evidence that she would have difficulty accessing appropriate clinics.

iv) Lopinavir and Ritonavir require refrigeration. Mr Chirico criticised the tribunal's finding that MM would "no doubt" find a solution to any problem caused by regular power cuts in Malawi. However, there was no evidence as to the prevalence, frequency or length of power cuts in Malawi such as to cast doubt on the efficacy of the drugs remaining in a fridge with the power off or cool bags. Dr Fakoya's evidence was that the liquid forms of the drugs could be kept outside a refrigerator for 42 days. No criticism of the tribunal's determination in this regard is arguably warranted.

v) Finally, Mr Chirico criticised the tribunal's conclusion that the drugs would be accessible, although MM might have to pay for them. However, the evidence was that ARV drugs are provided free of charge at public hospitals in Malawi, and are subsidised in private facilities such that the drugs would cost $3.50 per month. The findings of the FtT were that MK has a skilled trade and could find employment in a garage in Malawi; and that MM and MK had financial support from family and friends. There was therefore no real doubt that MM could afford the drugs privately, even if they were not accessible from a public hospital.

41. Consequently, I do not consider there is any ground upon which the factual findings of the tribunal are arguably challengeable. In those circumstances, its conclusion that there is no real risk that returning to Malawi would cause a decline in MM's health or any reduction in her life expectancy – and thus no real prospect of satisfying the Paposhvili criteria – is unimpeachable. The reformulation of Ground 3 therefore does not assist the Applicants.

MM & MK (Malawi): Conclusion

42. The Applicants seek permission to amend the grounds of appeal, and then permission to appeal on those amended grounds. Given my views on the merits of the proposed grounds, I would refuse permission to amend the grounds of appeal and I would refuse permission to appeal.

MV (Sri Lanka): Background

43. The Appellant MV is a Sri Lankan national, who arrived in the UK without leave on 17 October 2013. He claimed asylum, which was refused on 24 April 2014. He appealed to the FtT, raising human rights claims under articles 3 and 8.
44. MV claimed that he was a forced recruit of the Liberation Tigers of Tamil Eelam ("the LTTE"), who was detained by the Sri Lankan military four times, (i) in February 2009 for about six months, (ii) in February 2011 for a week, (iii) in June 2011 for about a month, and (iv) in November 2012 for five months. During his third period of detention, he claimed he was sexually abused; and, during the fourth period, his back was burned. The Secretary of State accepted that he was a low-level member of the LTTE having been forcibly recruited, and that he had been detained for the first two but not the later two periods.
45. In support of those claims, MV relied upon a report of a consultant psychiatrist, Dr Robin Lawrence, dated 7 August 2014. On the basis of MV's reportage, he diagnosed him as suffering from PTSD and severe secondary depression. At that stage, MV was being treated by his doctor with low dose antidepressants. He had not been referred to a psychiatrist. Dr Lawrence considered he should be prescribed different antidepressant drug therapy, and also referred for guided psychotherapy. If he were returned to Sri Lanka, he said that drug therapy would be available, but psychotherapy would not. He considered that MV was not currently at suicide risk, because his aunt managed his medication and he lacked all motivation; but the risk would definitely be increased if he did not have such support and "if he were returned to the source of the threat".
46. The FtT (First-tier Tribunal Judge Eban) dismissed the appeal. With regard to article 3 and the risk of suicide on return, the judge at [40] directed herself in accordance with the guidance of this court in J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409, which confirmed that the test to be applied for an article 3 suicide case was not whether the individual had established "a significantly increased risk of suicide" but whether there was "a real risk of suicide" which imposes a more stringent test than merely that the risk must be more than "not fanciful" (see 25]). In addressing that issue, the court set out the correct approach in [26]-[31] of the judgment of Dyson LJ (giving the judgment of the court), which Judge Eban set out in full, as follows:

"26. First, the test requires an assessment to be made of the severity of the treatment which it is said that the applicant would suffer if removed. This must attain a minimum level of severity. The court has said on a number of occasions that the assessment of its severity depends on all the circumstances of the case. But the ill-treatment must "necessarily be serious" such that it is "an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment"….

27. Secondly, a causal link must be shown to exist between the act or threatened act of removal or expulsion and the inhuman treatment relied on as violating the applicant's article 3 rights. Thus in Soering at [91], the court said:

"In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."(emphasis added).

See also [108] of [Vilvarajah v United Kingdom (1992) 14 EHRR 248] where the court said that the examination of the article 3 issue "must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka…"

28. Thirdly, in the context of a foreign case, the article 3 threshold is particularly high simply because it is a foreign case. And it is even higher where the alleged inhuman treatment is not the direct or indirect responsibility of the public authorities of the receiving state, but results from some naturally occurring illness, whether physical or mental. This is made clear in [49] of D and [40] of [Bensaid v United Kingdom (2001) 33 EHRR 10; [2001] INLR 325].

29. Fourthly, an article 3 claim can in principle succeed in a suicide case ([37] of Bensaid).

30. Fifthly, in deciding whether there is a real risk of a breach of article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in the receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of article 3."

47. In respect of this fifth consideration, Judge Eban expressly took into account the fact that a genuine fear, even if without objective foundation, may create risk of suicide (as emphasised by Sedley LJ in Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362; [2009] HRLR 22 at [7]).
48. Continuing with the considerations set out in J:

"31. Sixthly, a further question of considerable relevance is whether the removing and/or the receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that removal will violate his or her article 3 rights."

49. Applying those criteria, Judge Eban held that the risk of suicide would not place the UK in breach of article 3 if it was to return MV to Sri Lanka (see [42]). In doing so, she found as follows.

i) MV had been detained for the first three periods he described. However, MV's account of how he came to be incarcerated for five months from November 2012 and how he came by his burns was not credible and was not accepted (paragraph 40(5)).

ii) MV had suffered ill-treatment in Sri Lanka in 2011; but things had changed since then (paragraph 40(11). MV's fears of return to Sri Lanka "are not well-founded" (paragraph 40(5)).

iii) Antidepressant medication would be available in Sri Lanka (paragraph 40(1)).

iv) There was no evidence that MV had received psychotherapy in the UK (paragraph 40(8)). It was highly improbable that such help would be available in Sri Lanka (paragraph 40(9)).

v) MV would not be alone on arrival in Sri Lanka, but rather his family would be "there for him" (paragraph 40(6)).

50. The UT (Deputy Upper Tribunal Judge Pickup) refused MV's appeal, endorsing Judge Eban's analysis and her view that this case was "not so severe as to amount to a breach of article 3 on the basis of a risk of suicide" (paragraph 17). On 27 September 2016, on the papers, Elias LJ endorsed that paragraph, and refused permission to appeal to this court
51. However, at the oral renewal on 2 November 2017, Floyd LJ gave permission to appeal on one ground, namely that Judge Eban and in his turn the Deputy Judge had erred in applying the criteria in N rather than those in Paposhvili (see [10]). He said that it was possible that the evidence did not meet that reduced threshold; but he considered that that was a matter which should be considered by the full court. He continued (at [11]):

"It seems to me that it is seriously arguable that applying the less severe test to article 3 might on the evidence available have caused the FtT and the UT to reach a different result."

MV (Sri Lanka): Discussion

52. Given the binding nature of N on this court, on 19 February 2018, I invited the parties' views on (i) whether MV's appeal should be dismissed and (ii) the directions that should be given.
53. In his response, drafted by Counsel, the Appellant submitted that the appeal should not be dismissed, because it had a real prospect of success under the Paposhvili criteria, because:

i) There is an "absence of appropriate treatment" in Sri Lanka, because although the Appellant will be able to secure drug therapy, he will not be able to secure the psychotherapy he needs.

ii) If he were removed to Sri Lanka, as a result of the absence of this treatment, there were substantial grounds for believing that he would be exposed to (a) a serious, rapid and irreversible decline in his state of health resulting in intense suffering and/or (b) a significant reduction in life expectancy by reason of the increased risk of suicide.

54. The Secretary of State contended that the appeal should be dismissed because:

i) This court is bound by N, and it is common ground that MV does not satisfy the criteria in N.

ii) But in any event, MV does not satisfy the Paposhvili criteria: if returned, the FtT found that he will receive exactly the same treatment as he was receiving at the time he saw Dr Lawrence and administered under the care of a relative. There is no evidence as to any change in that treatment regime since.

55. Before us, as I have already indicated, Mr Knafler accepted that N as explained in AM (Zimbabwe) is binding on this court, and MV could not satisfy its criteria. The appeal must therefore be dismissed. The real issue is again whether, because MV satisfies the criteria in Paposhvili, this case might be an appropriate vehicle for the Supreme Court to revisit the criteria in article 3 medical cases.
56. It is my firm view that it is not.
57. Mr Knafler submitted that Sales LJ in AM (Zimbabwe) had misconstrued [183] of Paposhvili, by reading it as requiring any "significant reduction in life expectancy" to be linked to (indeed, to result from) exposure "to a serious, rapid and irreversible decline in [the applicant's] state of health…". Properly read, if there was a risk of a significant reduction in life expectancy as a result of removal, he submitted that that satisfied the criteria in that paragraph. Mr Knafler accepted that AM (Zimbabwe) was binding on this court; but, he submitted, MV ought to be allowed an opportunity to argue before the Supreme Court that the construction adopted by this court in AM (Zimbabwe) is wrong. Whilst what might amount to a "significant reduction in life expectancy" would be a fact-specific question, Mr Knafler accepted that it would have to be substantial, e.g. that life expectancy was reduced to, say, one to two years.
58. Of course, I was a member of the constitution in AM (Zimbabwe), and I agreed with Sales LJ's judgment. Like him, I see difficulties in the construction suggested by Mr Knafler, which appears to emasculate the alternative limb expounded in D and N and endorsed in Paposhvili, i.e. that there would be an imminent risk of dying. Nevertheless, I do not suggest that Mr Knafler's favoured construction is fanciful or even unarguable.
59. However, I do not consider that this court should give permission to appeal to the Supreme Court (or, indeed, give any encouragement to MV to apply to that court for permission) in this case because of its facts.
60. Mr Knafler based his submissions on both limbs of Paposhvili, namely that removal of MV to Sri Lanka would result in (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering and (ii) a significant reduction in life expectancy as a result of an increased risk of suicide. The evidence upon which Mr Knafler's submission was based, in respect of each limb, is restricted to that of Dr Lawrence. It is very thin.
61. In respect of (i), Dr Lawrence considered that MV's depression was "severe", and that his PTSD needed psychotherapeutic intervention which he had not received to the date of his report. At the time of the report, MV was on low dose antidepressants and no psychotherapy. There is no evidence as to whether he has subsequently had his drug regime changed, or undergone any form of psychotherapy; or, if so, whether they have been beneficial. Whilst the report indicates that MV's mental health symptoms would worsen if he were to be removed to Sri Lanka ("the source of the threat"), Dr Lawrence does not appear to consider the position if (as the tribunal found) he would be at no objective risk in Sri Lanka if returned. In my view, there is no evidential basis for the proposition that, if he were to be returned, excluding the risk of suicide, he would suffer a serious, rapid and irreversible decline in his state of health resulting in intense suffering. Nothing in Dr Lawrence's report suggests that to be the case. There is no evidence as to the potential effect of an increased drug regime (available both here and in Sri Lanka) upon MV's symptoms and state of mind.
62. With regard to (ii), Ms Giovannetti submitted that the approach to an article 3 suicide risk case has always been different from the approach to an article 3 medical case; and Paposhvili has left intact the jurisprudence in relation to suicide cases. Although Mr Knafler referred us to MP v Secretary of State for the Home Department (Judgment 24 April 2018) (Case No C-353/16), in which the Court of Justice of the European Union recently referred to [183] of Paposhvili in the context of a suicide risk case, I see the force in those submissions.
63. However, again, it is unnecessary to determine any such issues here. Whatever the true test might be in suicide risk cases, the only evidence in this case as to suicide risk is restricted to two paragraphs in Dr Lawrence's report. He states that, at the time of his report (i.e. whilst MV was on low dose antidepressants, and before he was given any higher dose drugs or psychotherapy which Dr Lawrence advised), MV was at no risk of suicide whilst he was in the UK (see page 22 of his report); but, if he were returned to Sri Lanka, whilst suicide in a particular case (he said) is notoriously difficult to predict, "removal from this caring environment and especially return to the source of threat would significantly increase the risk that he may successfully take his own life" (page 24). However, (a) the FtT found that he would be in a similarly caring family environment if removed to Sri Lanka, and (b) Dr Lawrence does not seek to quantify how great the risk of suicide would be in Sri Lanka with an appropriately high dose of antidepressant drug therapy.
64. The FtT found that any increase in risk would be insufficient to meet the test in J. In my view, the available evidence falls far short of showing any real risk that MV's life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka.

MV (Sri Lanka): Conclusion

65. For those reasons, I would not only refuse MV's appeal, but I would refuse permission to appeal to the Supreme Court. Even if the Supreme Court were to revisit the criteria in N in the light of Paposhvili, in my view that would not assist MV whose application for leave on article 3 grounds, on the evidence before us, would be bound to fail in any event.

Lord Justice Newey :

66. I agree.

Lord Justice Henderson :

67. I also agree.