ECtHR Khaksar v. the United Kingdom (no. 2654/18)

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Country of Applicant: 
Afghanistan
Date of Decision: 
03-04-2018
Citation: 
Khaksar v. the United Kingdom (no. 2654/18), 3 April 2018
Court Name: 
European Court of Human Rights (First Section)
Headnote: 

The exhaustion of domestic remedies is a prerequisite for the admissibility of applications lodged with the ECtHR under Article 35 ECHR. Removal of individuals suffering from severe medical problems may not be considered inhumane in the meaning of Article 3 ECHR, when suitable treatment exists in the country of origin.  

 

Facts: 

The Applicant is an Afghan national seeking medical care in the UK, who subsequently applied for asylum claiming that the particularity of his medical condition precluded the possibility of him receiving treatment in Afghanistan. His claim was dismissed by the authorities on grounds of him not meeting the well-founded fear element of the Refugee Convention and, in any case, his condition not being critical enough to render his removal inhumane under Article 3 ECHR.

After unsuccessful appeals, submissions to the Home Office were made, where the Paposhvili case was invoked amongst allegations that his removal would violate Article 3 and 8 ECHR, which were also dismissed. The Applicant did not seek permission for judicial review before the High Court but complained before the ECtHR instead, that his removal to Afghanistan would violate his right to private life under Article 8 ECHR based on his medical condition, the necessity for treatment in the UK and the security situation in Afghanistan. He also mentioned Article 3 ECHR in the medical context complaining about his condition being assessed as not serious enough.

 

Decision & Reasoning: 

The Court held his application inadmissible because the Applicant had not exhausted all domestic remedies available to him. It was further explained that the UK Court of Appeal had instructed all domestic courts to apply the Paposhivili criteria for the assessment of the removal of individuals suffering from critical medical conditions. As the Applicant did not seek permission for review before the High Court, domestic courts have been unable to review his claim, therefore no violation took place.

 

Outcome: 

Application dismissed.

Observations/Comments: 

The case summary was completed by Odyssefs Platonas, LLM Student at Queen Mary University.

Case Law Cited: 

N v. Secretary of State for the Home Department [2005] UKHL 31

AM (Zimbabwe) & Anor v The Secretary of State for the Home Department [2018] EWCA Civ 64 (30 January 2018)

ECtHR - N v United Kingdom (Application no. 26565/05)
Other sources cited: 

 

 

Authentic Language: 
English
State Party: 
United Kingdom
National / Other Legislative Provisions: 
Nationality
Immigration and Asylum Act 2002 > Section 82(1)
Tribunals
Courts and Enforcement Act 2007 > Section 11
Immigration Rules > Paragraph 353