Information Note on the Court’s case-law 217
April 2018
Khaksar v. the United Kingdom (dec.) - 2654/18
Decision 3.4.2018
Article 35
Article 35-1
Exhaustion of domestic remedies
Judicial review to be exhausted in respect of decision refusing to grant stay on removal of seriously ill people: inadmissible
Facts – The applicant is an Afghan national who was injured in a bomb blast in Afghanistan, suffering serious injuries with complex medical repercussions. He left his country to seek medical care in the United Kingdom, claiming asylum upon entry. The Secretary of State for the Home Department refused the application, finding that the applicant’s medical condition was not at such a critical stage that it would be inhumane to remove him to Afghanistan.
All the applicant’s appeals to the domestic courts were dismissed. Following the decision of the Court in Paposhvili v. Belgium ([GC], 41738/10, 13 December 2016, Information Note 202), the applicant made further submissions, arguing that his Article 3 and 8 rights would be engaged and breached by return to Afghanistan. The Secretary of State considered that the submissions did not amount to a fresh claim, examining the applicant’s case under the principles applied throughout the previous domestic proceedings in respect of the threshold applicable to a breach of Article 3 in medical cases.
While the decision could not be appealed, the applicant did not apply for the available judicial review before the High Court.
Law – Article 35 § 1: Notwithstanding the refusal of the Secretary of State to reconsider the applicant’s case in light of the Paposhvili test, the Court noted that the Court of Appeal had recently provided formally binding guidance, based on the test set out in Paposhvili v. Belgium [GC], to all courts and tribunals below the level of the Supreme Court in respect of decisions taken regarding a stay on removal of seriously ill people. In this regard the applicant did not seek permission before the High Court for judicial review of the decision of the Secretary of State, to enable the domestic courts to consider the matter in accordance with the domestic law. Therefore, the applicant had failed to exhaust all domestic remedies available to him.
Conclusion: inadmissible (failure to exhaust domestic remedies).
(See also N. v. the United Kingdom [GC], 26565/05, 27 May 2008, Information Note 108)
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