By Katherine Magee
The Supreme Court recently passed a significant judgement in the case of AM (Zimbabwe) v Secretary of State for the Home Department  concerning the application of Article 3 in deportation cases that involve severely ill foreign nationals. The case involved an HIV-positive Appellant (AM) who claimed that removal from the UK would breach his Article 3 right which prohibits ‘torture or inhuman or degrading treatment or punishment’. AM argued that if he were deported, he would be unable to access medication which prevents him from developing AIDS.
Prior to AM, the key Supreme Court judgement relating to Article 3 was N v Secretary of State for the Home Department  which provided a strict test for Article 3 health-related cases. The principle changes between AM and N are set out below:
One of the most controversial aspects of the decision in N is that there was no consideration of the practical difficulties of accessing treatment. Whilst the NHS is free to access in the UK, in other countries, medical treatment is considerably expensive. Additionally, the NHS has a high ratio of clinical staff to patients compared to many other countries. Consequently, under the test in N, a client who had no actual chance of accessing treatment in the country of return, due to expenses or lack of clinical staff, would still fail if there were treatment options in that country.
The case of AM endorses the approach of the European Court of Human Rights in the case of Paposhvili v Belgium . In summary, the test under N concentrated on the risk of imminent death if deported from the UK. The new test under AM concentrates on the risk of severe and rapid decline in health leading to intense suffering. This is a welcomed decision as it has a positive impact on some of the most challenging and distressing cases: where removal raises the risk of a reduction in life expectancy due to lack of suitable treatment in the country of return.