HU173142018 -[2020] UKAITUR HU173142018- (17 December 2020)

Key Facts

Issues

• This issue addresses the procedural requirements under Article 3 ECHR post-Paposhvili, including the shifting burden of proof where the appellant must demonstrate substantial grounds for a health risk, and the Secretary of State must verify treatment availability/accessibility in Zimbabwe through country reports, MedCOI data, and individual assurances. The Tribunal evaluates if the respondent satisfied these obligations, particularly regarding cost, family support networks, and geographical barriers to accessing HIV treatment.
• The first issue is whether the appellant's medical evidence, specifically her reliance on Triumeq (a combination HIV drug unavailable in Zimbabwe), establishes a breach of Article 3 ECHR if she is deported. The second issue examines whether the Secretary of State adequately countered this evidence by demonstrating sufficient general treatment availability and accessibility in Zimbabwe, including verifying care through individual assurances as required by AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17.

Holdings

Remedies

• The appeal was allowed under Article 3 ECHR, as the appellant's deportation to Zimbabwe would expose her to a serious, rapid, and irreversible decline in health due to the unavailability of her essential HIV treatment (Triumeq). The Secretary of State failed to provide sufficient evidence to counter the medical case or secure an individual assurance from Zimbabwe.
• The previous decision of the First-tier Tribunal was set aside as it involved an error on a point of law following the Supreme Court guidance in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17.

Legal Principles

• The burden of proof under Article 3 ECHR requires the appellant to adduce evidence capable of demonstrating substantial grounds for believing that removal would expose them to a real risk of serious, rapid, and irreversible health deterioration or significant reduction in life expectancy. The returning state must then dispel any serious doubts raised by the applicant's evidence through close scrutiny of treatment availability and accessibility in the receiving country.
• The standard of proof under Article 3 ECHR necessitates that the returning state verify, on a case-by-case basis, whether general treatment in the receiving state is sufficient to prevent article 3 breaches. If serious doubts persist, the state must obtain individual assurances from the receiving country for appropriate treatment.

Precedent Name

Cited Statute

• UK Borders Act 2007
• Tribunal Procedure (Upper Tribunal) Rules 2008
• European Convention on Human Rights

Judge Name

Passage Text

• 39. On that basis, the appellant's Article 3 case is made out and, applying section 33(2) of the 2007 Act, Exception 1 applies to her. There is no obligation on the Secretary of State to make a deportation order.
• 40. I have reviewed the appellant's statements and the medical evidence. While the appellant's deportation is in the public interest, and the offence she committed was a serious breach of trust, on the facts of this appeal it is outweighed by the health risk to her if she is returned to Zimbabwe.
• 35. At section 8, the CPIN records that there are now a million people in Zimbabwe on HIV treatment, although 1.3 million are said to be living with HIV in 2016 and 2017. Deaths from AIDS-related illnesses fell from 61000 in 2013 to 22000 in 2017. A 'treat all' approach is taken. There is a list at 8.2.4 of available HIV anti-retroviral drugs, including most of the drugs which the appellant has taken, but no longer takes, either because of side effects or drug resistance. However, at 8.2.5, the CPIN says this: