Chapter 5 End-of-chapter question guidance

1. How would you have decided the case of N? And how has Paposhvili changed the position in Article 3 medical cases?

This question does not invite only a personal opinion. N has been chosen because it raises contentious and difficult issues, and treats the economic interests of the state, at least implicitly, as relevant in deciding an Article 3 claim.

Begin by explaining the facts of N, the ratio of the House of Lords decision and the reasoning in the ECtHR. Read the case. It is easy to find the House of Lords decision at http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm and the ECtHR majority and minority decisions (Application no. 26565/05, Judgment given 27^th May 2008, http://www.echr.coe.int).

Consider your reaction to the case. Do you have a moral or emotional response to the decision? Notice this but do not as yet treat it as the answer. As you are asked how you would have decided it you are invited to examine whether you think these decisions are correct in law. You need to consider:

1. What kind of experience is covered by Article 3 – inhuman and degrading treatment or punishment. How has case law treated these concepts and how does what N faced in Uganda fit with this or not?
2. By what principle can the UK government be held responsible for what happens to N in Uganda?
3. What special factors are there to consider in a health care case? Are there any in actual fact? For instance, is it legitimate to consider the economic impact on the UK (a) of N’s remaining, (b) of others in her position remaining in the UK?
4. How similar is N to D v UK? Note the similarities and differences. Does this lead you to conclude that N should follow D or be distinguished from it?

What impact has the ECtHR judgment Paposhvili v Belgium and the UK Supreme Court’s judgment in AM (Zimbabwe) v SSHD [2020] UKSC 17 had on N v SSHD? Explain briefly the facts and ratios of Paposhvili and AM (Zimbabwe). Would N be decided differently if it were decided now? Do you agree with the development in the law? Explain your answer by reference to the factors you considered in relation to the N case.

2. Does it or should it make any difference to rights under Article 8 whether family life has been formed while waiting for an asylum claim to be processed or while spending time in the UK as, say, a student?

On the face of it the answer to this is a simple ‘no’. The immigration status in both situations is lawful, the quality of family life and strength of ties is not affected by the reason that the person is in the UK, or at least not in a predictable way that is relevant to the law. The question invites an examination of the case law to see whether there are any factors which affect the assessment of an Article 8 claim and which are related to the person’s status. Compare a selection of Article 8 cases with one another.

Consider in the light of the case law and statute how factors that might be relevant to each kind of application are weighed in the proportionality exercise.

3. Is proportionality really a question of law? How far has the integration of Article 8 considerations in the rules and statute constrained judicial discretion over the question of proportionality in individual cases?

Look at a few Article 8 cases, in the ECHR and in the UK, and consider:

1. The factors courts take into account in determining proportionality.
2. Whether courts reach a judgment on what is proportionate or whether it finds as fact that e.g. removal is proportionate.
3. To get more of a feel of what proportionality is, read what Lord Bingham says about proportionality in A v UK [2004] UKHL 56, and in Huang and Kashmiri [2007] UHL 11.
4. Explain briefly how the UK has integrated Article 8 proportionality considerations within the Immigration Rules and Statute.
5. Examine what this means, by reference to the case law, for judicial discretion in determining whether or not a decision to remove or exclude a person from the territory of the UK is proportionate.