Communicated on 12 November 2019
FIRST SECTION
Applications nos. 33636/19 and 42669/19
A.M. against the United Kingdom
and A.A.M. against the United Kingdom
lodged on 21 June 2019 and 19 July 2019 respectively
SUBJECT MATTER OF THE CASE
The first applicant was born in the United Kingdom to the second applicant on 3 March 2015 and is currently aged four years old. The second applicant is a Tanzanian national, born in 1992, who entered the United Kingdom as a student in September 2014 while pregnant.
The first applicant was diagnosed with congenital rubella syndrome upon birth as a result of maternal infection during pregnancy. She suffers from complex health problems, including chronic lung disease, global developmental delay with evolving motor disorder, bilateral cataracts with glaucoma, severely impaired hearing and vision, and gastro-oesophageal reflux disease. Medical reports indicate that she will never be able to live independently, has ongoing requirements for specialised medical care and services, and is unlikely to ever walk. She has a poorly coordinated swallow, meaning she is at risk of aspiration pneumonia which could be life-threatening. She is also vulnerable to chest infections. She takes a specialised milk product adapted to her needs.
A report provided in December 2016 set out that loss of access to specialist services available in the United Kingdom would lead to deterioration of the first applicant’s condition in the short term, and would certainly shorten her lifespan in the medium to long term.
The second applicant applied for leave to remain in the United Kingdom in January 2016 on the basis of her family life with the first applicant, in view of her various medical conditions. The application was also considered under Article 3 of the Convention. The application was refused by the Secretary of State for the Home Department on 19 December 2016. It was considered that suitable medical treatment was available in Tanzania and it had not been proven that the first applicant’s condition would rapidly deteriorate upon removal. It was concluded that removal did not breach the high threshold of severity to breach Article 3 of the Convention. The application was rejected in respect of both applicants under Article 8 of the Convention as well.
The second applicant appealed the decision before the First-tier Tribunal on Article 3 grounds. The First-tier Tribunal dismissed the appeal on 22 March 2018, finding that the first applicant was disabled with complex needs as distinct from being seriously ill. The tribunal found that the second applicant was able to care for the first applicant at home without professional help, and the main impact of removal would be that the first applicant would not be able to receive “optimal treatment” to catch up with developmental milestones. The tribunal considered Paposhvili v. Belgium [GC], no. 41738/10, 13 December 2016 but concluded there were not substantial grounds to believe that Article 3 of the Convention would be violated by requiring the applicants to return to Tanzania.
Permission to appeal the decision was refused by the Upper Tribunal on 30 July 2018. The applicants sought permission to apply for judicial review of the decision of the Upper Tribunal, which was refused on 28 September 2018. The High Court found that the Upper Tribunal had correctly directed itself on Paposhvili and that there was no evidence that the first applicant faced a real risk of rapidly experiencing intense suffering in Tanzania. The High Court considered that the applicants simply disagreed with the factual determination of the First-tier Tribunal.
The applicants sought permission to appeal to the Court of Appeal, which was refused on 15 February 2019. They asserted, among other arguments, that the Secretary of State did not satisfy the burden on him to show that an alternative to the specialised milk product (which is not available in Tanzania) would be available on return. The Court of Appeal concluded that there was no error of law in the decision that Article 3 would not be violated by requiring the applicants’ return to Tanzania.
The applicants complained that the refusal to grant them leave to remain was in breach of Article 3, due to the first applicant’s state of health.
QUESTION TO THE PARTIES
Would the applicants’ removal to Tanzania violate their rights pursuant to Article 3 of the Convention (see, inter alia, Paposhvili v. Belgium [GC], no. 41738/10, 13 December 2016)?
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