UK Court of Appeal: guidance on stays of removal in Article 3 ECHR cases with reference to Paposhvili v Belgium

Tuesday, January 30, 2018

On 30 January 2018, the England and Wales Court of Appeal ruled in case AM (Zimbabwe) & another v. the Secretary of State for the Home Department. The case concerned two appeals against the removal of foreign nationals from the UK where they are suffering from serious illness, raising a possible breach of Article 3 ECHR. The Court of Appeal considered to which extent the test for application of Article 3 ECHR should be adjusted in light of the ECtHR’s Grand Chamber judgment in Paposhvili v. Belgium.

According to the Court of Appeal, the ruling in Paposhvili relaxes the test for violation of Article 3 ECHR in the case of removal of a foreign national with a medical condition, but it does so only to a very modest extent. It advanced that the boundary in that test has been shifted from being defined by the imminence of death in the country of destination to being defined by the imminence of intense suffering or death in that country, which may only occur because of the non-availability of the treatment which had previously been available to that person. Therefore, according to the Court of Appeal, the ECtHR did not intend to reverse the effect of Grand Chamber’s ruling in N. v. the United Kingdom.

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