William Hansen and Matthew Wyard in important public law appeal for UK asylum-seekers

23rd October 2023

Two of 3PB’s public law barristers, William HansenWilliam HansenCall: 1992 and Matthew WyardMatthew WyardCall: 2014, pictured left to right, both appeared in the important appeal of THTN v Secretary of State for the Home Department (“THTN”) which was handed down on 20th October 2023. The appeal has clarified what an appellant must demonstrate in Article 3 medical claims following the Supreme Court’s decision in AM(Zimbabwe) [2020] UKSC 17 (“AM (Zimbabwe)”).

The key point of principle arising in THTN concerned whether [33] of the judgment in AM (Zimbabwe) meant (as the appellant submitted) that an appellant did not need to adduce any evidence as to the availability of medical treatment in the Receiving State, or, (as the SSHD submitted) whether it was incumbent on the Appellant to adduce prima facie evidence to that effect as part of demonstrating that there are substantial grounds for believing that there is a real risk of subjection to inhuman treatment on their return.

The Court of Appeal found that:

“48. … Stage one of the process requires the applicant to provide strong evidence of the seriousness of the illness including the treatment involved and the consequences of removal of treatment. Those are matters which will only be within the knowledge of the applicant. She also must provide sufficient evidence to cast doubt on the availability or accessibility of treatment in the receiving state. The SSHD (or on appeal the F-TT) will be well capable of determining whether sufficient evidence has been adduced to cast doubt on the receiving state’s medical facilities. This is reflected in the discussion at [32] in AM (Zimbabwe). The passage at [33] on which Mr Jafferji relied must be read in that context.

49. In AM (Zimbabwe) the Supreme Court anticipated that Savran would shed light on the procedural requirements. I am satisfied that Savran confirmed the position. The threshold test set out at [134] clearly requires evidence from the applicant about the position in the receiving state before there is any obligation on the returning state. The Strasbourg court does not use the term prima facie case since that is not a concept commonly in use at that court. However, it is the term used by Sales LJ (as he then was) in the Court of Appeal in AM (Zimbabwe). It is a concept familiar in this jurisdiction and more than capable of being applied in relation to applications of this kind.”

The Court of Appeal has therefore given clarity on a question which has troubled those practising in asylum law since the handing down of AM (Zimbabwe) by the Supreme Court. It has now been confirmed that in cases where an applicant is running an Article 3 medical case, the applicant must adduce evidence to cast doubt on the availability or accessibility of treatment in the receiving state. It is not entirely a matter for the SSHD as many had previously believed.

Permission to appeal was also granted on the question of whether the “assessment” section of a Country Policy and Information Note (CPIN) was to be treated in essence the same as the historic Country of Origin Information Service (COIS) reports, or whether it was akin to the historic Operational Guidance Notes (OGN).

The Court of Appeal at [42] of THTN confirmed that a CPIN was neither the same as a COIS report or OGN, rather, it was a combination of the two: “The UT found that a CPIN was the same as a COIS. It was not an Operational Guidance Note. Insofar as it matters, the UT was wrong in so finding. Previously there were two types of report in cases such as this, namely a COIS and an Operational Guidance Note. The CPIN in effect combined the two.”

William Hansen and Matthew Wyard represented the Secretary of State in the Court of Appeal.

William Hansen is a public law practitioner on the Attorney General’s A Panel of Counsel to the Crown with a particular interest in immigration and asylum matters. He sits as a High Court Judge in the Chancery Division, a Deputy Judge of the Upper Tribunal, a Recorder and a Deputy Chancery Master.

Matthew Wyard is a public law practitioner on the Attorney General’s C Panel of Counsel to the Crown. He has a wide ranging public law practice focusing on all matters of local government law focusing on immigration and asylum, judicial review, education, community care and planning dispute.

To instruct William, Matthew or any of 3PB’s Administrative and Public law team then please contact Sam Collins on [email protected] or 020 7583 8055.