[2023] UKUT 00164 (IAC)

Ground 3 contends that the appellant’s case does not meet the high Article 3 threshold and that, contrary to the findings of the FTT, section 5 of the respondent’s CPIN Zimbabwe: Medical treatment and healthcare demonstrates that adequate treatment is available to the appellant in Zimbabwe, albeit not at the level he receives in the UK. Section 5 of the CPIN spans six pages. The grounds make no attempt to particularise which paragraphs in the CPIN are relied upon or the nature of the treatment available in Zimbabwe. The respondent’s review offers no assistance on the topic either – it merely states that the relevant Article 3 threshold has not been met.

In AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC); [2022] Imm AR 1021, the UT panel gave guidance on the two questions in Article 3 health cases in relation to the initial threshold test following AM (Zimbabwe) v SSHD [2020] UKSC 17; [2020] Imm AR 1167 and Savran v Denmark (application no. 57467/15). These two questions were broken down as follows:

“(1)

Has the person (P) discharged the burden of establishing that he or she is “a seriously ill person”?

(2)

Has P adduced evidence “capable of demonstrating” that “substantial grounds have been shown for believing” that as “a seriously ill person”, he or she “would face a real risk”:

(i)

“on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,

(ii)

of being exposed to

(a)

a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or

(b)

a significant reduction in life expectancy”?”

There was ample evidence to support the FTT’s conclusions at [69] and [70] that this appellant is a seriously ill person and it is not in dispute.

The second question is multi-layered. Whilst the FTT has not approached the question in the same order suggested in AM (Zimbabwe) (UT) (supra), we are satisfied that each aspect has been adequately addressed. The FTT spent over two pages summarising the proper approach to Article 3 health cases by quoting extensively from Paposhvilli v Belgium [2017] Imm AR 867 and AM (Zimbabwe) (SC) (supra), and properly directed itself to the burden resting upon the appellant to adduce the evidence to establish a prima facie case – see the appropriate self-directions at [21], [25] and [26] of the FTT’s decision. Whilst we accept that a more concise and ‘user-friendly’ summary of the relevant law is to be found in AM (Zimbabwe) (UT), Ms Ahmed accepted that the FTT’s failure to refer to this authority does not constitute an error of law.

The FTT has not restricted its analysis to considering whether the appellant’s condition will worsen upon removal and concluded that this is one of the rare cases that satisfies Article 3. The FTT directly asked itself whether the appellant will “suffer a serious, rapid and irreversible decline in his mental health resulting in intense suffering” at [71], having already directed itself to the “very high” threshold to be met at [22]. The FTT answered this in the affirmative, by making express reference to the specific mental health evidence available: Ms Joliffe’s conclusion that the appellant is at high risk of a serious episode of psychosis if deported and Mr Gregory’s opinion that there is a very high risk of relapse if deported. This reasoning should not be considered in isolation but in the context of the specific evidence concerning this appellant’s mental health, the main features of which are summarised above.

The FTT was entitled to accept the appellant’s mental health decline in Zimbabwe would result in intense suffering. Indeed, the evidence points in one direction for this appellant: when he relapses to a serious episode of psychosis and becomes acutely mentally unwell he is subject to ‘intense suffering’. The 2021 FTT mental health decision clearly described the significant nature and extent of the appellant’s suffering when he is acutely unwell and the time, intensive care, support and treatment necessary to reverse the relapse. It is well-established that suffering associated with a deterioration in an already existing mental illness involving a relapse into psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning, could, in principle, fall within the scope of Article 3 – see Bensaid v UK (App no 44599/98) at [37], albeit whether the serious and detrimental effects are sufficient to result in intense suffering depends upon the strength of the evidence, in particular evidence of harm to self – see Savran (supra) at [143-144].

As Ms Ahmed pointed out, the fact that there is a real risk of relapse into psychosis in Zimbabwe such that the appellant will face intense suffering, is not the end of the matter. After all, he has faced significant mental health decline in the UK, even when compliant with medication and supported by mental health professionals. The Court observed in Bensaid at [38] that the applicant faced the risk of relapse even if he stayed in the UK given his long-term illness requiring constant management. For this appellant’s deportation to breach Article 3, his mental health decline resulting in intense suffering must be “on account of” or caused by the absence of appropriate treatment in Zimbabwe or the lack of access to such treatment. The FTT explicitly and accurately directed itself to the need to address causation at [72]:

“The serious rapid and irreversible decline in health leading to intense suffering and / or the significant reduction in life expectancy must be as a result of either the absence of appropriate treatment in the receiving country or the lack of access to such treatment.” (our emphasis)

The FTT found the appropriate mental health treatment for this appellant was not available in Zimbabwe in these terms:

“73.

Is there appropriate treatment in Zimbabwe for this appellant? I find that there is not. The CPIN dated April 2021 shows a significant shortfall in the level of care one would need to provide to this appellant to prevent his relapse or treat him properly. Firstly, the medication that the appellant currently takes and is prescribed is not available in Zimbabwe. There is no evidence that anything which is available is a sufficient or appropriate substitute. It is for the Respondent to lead this evidence and they have failed to do so.

74.

Secondly, the appellant has a system of care which is robust, reliable and meeting of his demands in terms of his Mental health. The appellant would not, I am satisfied, receive anywhere near the required level of care in Zimbabwe simply for the fact that such care does not exist and there is not the available systems to treat him. This is not an appellant suffering from mild depression or mild anxiety ( not that they are not of themselves difficult) but this is a man with significant and serious mental health problems.

75.

The availability of hospitals treatment is severely lacking in Zimbabwe, the funding for the same is severely lacking and the availability of appropriate medically trained staff with sufficient experience and skill to properly treat the appellant is severely lacking.

76.

I have no hesitation in finding that on account of the appellant’s significant and serious mental health problems he would suffer intense suffering which would be both serious and irreversible (irreversible in the sense that there would be no appropriate treatment available). This would be as a result of the appellant not having access to the appropriate and correct medical treatment.”

Ms Ahmed submitted that the FTT was not entitled to find an absence of treatment on the information available to it. She pointed to an absence of evidence in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in Zimbabwe. We note the guidance in AM (Zimbabwe) (UT) that clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful. However, the panel also highlighted that the nature and extent of the evidence as to the availability of and access to treatment in the receiving state that is necessary, will depend on the particular facts of the case. In this case the appellant relied upon the respondent’s CPIN. There was no dispute that the appellant’s prescribed medication is unavailable in Zimbabwe. This includes the anti-psychotic, Olanzapine. Mr Pipe took us to Annex A of the CPIN, which he said he also did before the FTT. This provides a list of the available medication in Zimbabwe. It does not include the appellant’s medication. Ms Ahmed drew our attention to AM (Zimbabwe) (UT) and the panel’s careful and detailed consideration of alternative ARV medication in Zimbabwe to treat HIV from [123]. This must be viewed in the context of that case, wherein a consideration of the suitability of alternative available ARV medication was a key issue in dispute.

In any event, and perhaps more importantly, the FTT clearly accepted that there would be an absence of the vital community mental health services relied upon by the appellant to prevent a psychotic relapse, given the significance and seriousness of his mental health problems. Ms Ahmed was unable to take us to any evidence inconsistent with the FTT’s conclusion that there would be no community mental health treatment available to this appellant, which on the evidence of the professionals was vital to maintain his fragile mental health. We note that the respondent’s own Zimbabwe country expert in PS, Dr Chitiyo, accepted that the appellant in that case would be “most unlikely to be able to access any social care or mental health treatment, given the very poor state of those facilities” in Zimbabwe – see [108] of PS. The CPIN describes the mental health treatment available in Zimbabwe, but this tends to be centred around a few government-run, hugely under-resourced institutions. By way of example, 5.1.12 of the CPIN quotes from the US State Department report for 2020 in which it was observed that “residents in these government-run institutions received cursory screening, and most waited for at least one year for a full medical review”.

We do not accept Ms Ahmed’s submission that the FTT engaged in unwarranted speculation in the manner warned against in Bensaid. The FTT’s conclusions on Article 3 are adequately based upon the evidence before it, including the appellant’s dependence upon medication and mental health community support in the UK, which would be absent in Zimbabwe, and; the professionals’ consistent assessment of likely impact of deportation to Zimbabwe upon the appellant, in the light of his own intense subjective beliefs (whether or not they are well-founded) regarding the Zimbabwean security agencies’ interest in him – a significant relapse in his mental health. By contrast, in Bensaid the evidence indicated that there was reasonable access to Olanzapine and hospital treatment, and the appellant’s claims that in practice these would be difficult to access, was speculative. In addition, the applicant in Bensaid did not rely upon evidence contained within the mental health professionals’ reports in this case, to the effect that deportation alone to the country of origin was sufficient to trigger a relapse in the light of past perceived trauma. Mr Bensaid’s case was a more nuanced one – he would not be able to access treatment, in the event his schizophrenia deteriorated in Zimbabwe.

Ms Ahmed also submitted that the FTT misdirected itself in law at [73] in purporting to place the burden of proof upon the respondent when the initial burden falls on the appellant to make out a prima facie case. The FTT clearly found the appellant’s medication was not available in Zimbabwe – that was not in dispute. We note headnote 4 of AM (Zimbabwe) (UT) - it is only after the threshold test has been met and thus Article 3 is applicable, that the returning state’s obligations summarised at [130] of Savran (supra) become of relevance. We set out the relevant parts of [130] of Savran for completeness (our emphasis):

We are satisfied that the FTT’s reference to the respondent leading evidence on alternative medication is probably a reflection of what often occurs in these types of appeals in practice. As here, the appellant relies upon evidence that he requires anti-psychotic medication, which the CPIN confirms to be unavailable in Zimbabwe. In many cases, the respondent seeks to adduce additional evidence on available medication, by providing a ‘MedCOI, response to information request’ (see the footnotes to Annex A of the CPIN). This did not happen in this case. The FTT was entitled to conclude that the appellant displaced the burden upon him given the evidence he led regarding the absence of medication and community mental health treatment in Zimbabwe.

When the FTT decision is read as a whole, we are satisfied that it properly directed itself to and applied the correct burden of proof. The FTT was clearly aware that the burden lay on the appellant to adduce evidence capable of establishing a prima facie Article 3 case, and was satisfied that this burden was displaced by him. The appellant having adduced that evidence, it was for the respondent to dispel any doubts raised by it. The respondent’s review manifestly demonstrates that the respondent did not raise any particularised concerns about the appellant’s prima facie case.

We are not satisfied that the FTT has erred in law in its consideration of Article 3.