The eagerly anticipated judgment of the Supreme Court in AM Zimbabwe v SSHD  UKSC 17 was handed down yesterday. The law relating to breaches of Article 3 in situations where lack of medical resources in the receiving state is at issue has required clarification for some time.
On the one hand, the domestic threshold for establishing such a breach was set precipitously high in the case of N v SSHD  UKHL 31 (‘N‘). The ECtHR subsequently offered a different, potentially lower, threshold in Paposhvili v Belgium  Imm AR 867 (‘Paposhvili’). The question has lingered since whether, and to what extent, the two tests differ, and which test UK courts should apply.
On the other hand, courts have previously taken an inconsistent approach to suicide risk cases (where removal either risks causing suicide, or leading to an increased risk of suicide). The case of J v SSHD  EWCA Civ 629 (‘J’) drew a distinction between foreign and domestic cases; suggested that suicide risk cases will usually be both; and allowed that a lower test than that in N applied if suicide risk cases were argued on a domestic basis, whether or not also argued on a foreign basis. In practice, arguing such a case on a domestic basis involved focusing on any increase in the risk of suicide caused by the process of removal. This raised a prospect that practitioners could avoid the higher threshold by consistently framing suicide risk cases in those terms.
Subsequent cases, however, politely disregarded this aspect of J and assimilated foreign and domestic suicide risk cases in order to achieve consistency with the test in N. The result was to leave practitioners deeply unclear whether N, or for that matter Paposhvili, applied to a specific suicide risk case at all, or whether some other test was sometimes appropriate.
AM Zimbabwe v SSHD  UKSC 17 now upholds the test in Paposhvili as the domestic test – and confirms that it significantly moderates the test in N. AM also arguably vindicates the original promise, though not the original principles, of J. By affirming that exposure to a risk of a substantial decrease in life expectancy breaches Article 3, the door is re-opened to arguments that a substantial increase in the risk of suicide also breaches Article 3.
The result is that the cohort of medical cases, including suicide risk cases, potentially capable of succeeding on Article 3 grounds has significantly increased. This post therefore reviews the previous position below, and considers the full effects of AM.
Foreign and domestic cases
R (Ullah and Do) v SSHD  UKHL 26, as considered by Dyson LJ in J, established a fundamental difference between ‘foreign’, and ‘domestic’, cases:
- Domestic cases:involve a breach of human rights by a member state, within its own territory.
- Foreign cases:involve a breach of a returnee’s human right in the receiving state, albeit that breach is facilitated by a domestic action (i.e removal or deportation) by a removing state. Liability arises on behalf of the removing state because of its own peculiar causal contribution to the breach, and not under any accessorial principle.
Foreign cases come in two further types:
- Foreign intentional cases:the breach is caused by the receiving member state in its own territory, for example where a state tortures a claimant, or omits to adequately investigate a death.
- Foreign unintentional cases: the breach is not caused by the receiving member state, for example where a breach arises due to lack of adequate medical facilities in the country.
J applied a similar test to foreign intentional cases, as in domestic cases: requiring strong grounds for believing that there was a real risk of a substantial breach of Article 3. However a higher threshold was required for cases of the foreign unintentional type: very exceptional circumstances had to be shown, following the decision of D v UK (146/1996/767/964) .
‘Very exceptional circumstances’ were examined first in respect of medical cases. Medical cases turn on an argument that lack of medical facilities in a receiving country will cause a decline in physical health amounting to a breach of Article 3. This is a foreign unintentional situation to which a very exceptional threshold would consequently apply.
This threshold was famously defined in N. N emphasised that to succeed in a medical case objecting to removal on Article 3 grounds, the focus would be on the present medical condition of the individual, and in particular a requirement that the death of the individual be imminent, combined with an absence of care in the receiving country to enable a dignified death following removal.
Per Lady Hale, “69. In my view, therefore, the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (i.e. he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity.” Though ‘N’ had HIV, her condition unlike that of ‘D’ was evidenced to be stable, and so her objection to removal on Article 3 grounds was unanimously dismissed. This illustrated the sting in the test: it excluded cases where removal would all but place someone on their deathbed by vastly reducing their life expectancy, provided only that they had not already been terminal.
Two theories were ventured in N to justify this harsh result. Lord Hope, at , held that “the question on which the court has to concentrate is whether the present state of the applicant’s health is such that, on humanitarian grounds, he ought not to be expelled unless it can be shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state.”
Lord Nicholls, in contrast, doubted whether ‘humanitarian concern’ could justify differential treatment of someone beyond medical assistance on the one hand, and an HIV sufferer on the other hand, who is not yet beyond assistance, but would be rendered such, and would suffer a catastrophic reduction in life expectancy, if separated from their medical treatment by deportation. The humanitarian concerns raised by the former case are not obviously greater than those in the latter.
Lord Nicholls emphasised instead, at  that “the Strasbourg Court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state….This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened. But in the case of D, unlike the later cases, there was no question of imposing any such obligation of the United Kingdom. D was dying, and beyond the reach of medical treatment then available.”
That reveals the true policy motivation behind the test, situating it on the usual fault line between member state concerns about sovereignty, benefits tourism, and immigration control on the one hand, and human rights on the other.
Suicide risk cases
Suicide risk cases concern the risk of suicide caused by deportation. They differ from medical cases, because breaches arising in suicide risk cases are not solely caused by conditions in a receiving country, but are also potentially caused by the removal process itself, and thus by the removing state. Such breaches then have two plausible causes – both substantial, neither sole.
That raises the tricky question whether suicide risk cases concern foreign, or domestic breaches. In J, the Court of Appeal held that they raise both.
J v SSHD distinguished different phases of a deportation, to determine whether each might involve a foreign, or domestic breach. At each phase, the risk being considered was the risk of suicide. Taking a UK deportation scenario as the analogy, the court held that:
- In the UK, any risk of suicide caused by notification of the decision to deport constitutes a domestic breach of Article3, if unaddressed;
- In transit between the UK and the receiving country, any risk of suicide caused by the experience of transit also constitutes a domestic breach of Article 3 if unaddressed;
- Once in the receiving country, any risk of suicide caused by lack of facilities in the receiving country constitutes a foreign unintentional breach of Article 3.
In J, the Court of Appeal observed that the UK will usually have adequate facilities both in the UK, and in transit, to address any risk of suicide, precluding any domestic breach on that account. So far as risk of suicide is concerned, on one view the only arguable breach would therefore be a foreign unintentional breach relating to suicide caused by conditions in the receiving country, after deportation has occurred.
Increased suicide risk cases
However, granted that deporting someone may not result in their actually committing suicide either in the UK, or in transit, could it not severely damage their mental health, directly leading to them committing suicide shortly after arrival in the receiving country? If so would that be a foreign, or a domestic breach?
Answering this question involves drawing a distinction between a risk of suicide, and a risk of an increased risk of suicide:
- If there is a risk of suicide inherent in a deportation, that is a risk that the deportation will leave the complainant deceased. However with adequate facilities in place, before and during transit, that risk generally never arises.
- In contrast, if there is a risk of an increased risk of suicide, that is a risk that will leave the complainant alive, even if it eventuates. It is not a risk of suicide itself, and an increased risk of suicide is in fact identical to a risk of deterioration in mental health. An increased risk of suicide is a worsened state of clinical depression.
Given that distinction, any question as to whether a removing state is directly responsible for the suicide of someone after they arrive in a receiving state can be reduced to a different question: whether damaging someone’s mental health through the process of removal can be a breach in its own right.
Counsel for the claimant raised precisely that argument in J, but failed. Counsel relied on the promising dictum in Soumaroho v SSHD EWCA Civ 840 that “[i]f it was arguable on the evidence that there was a real risk of a significantly increased risk that, if she were removed to France, the appellant would commit suicide, then in our view her claim based on Article 3 could not be certified as manifestly unfounded”.
The Court of Appeal in J responded, however, that whilst not manifestly unfounded, such a claim (a) only arose in a scenario where there was pre-existing risk of suicide in the removing country, requiring a heightened risk over and above that baseline to be shown. The test articulated was specific to that sub-class of scenarios, and was not intended to apply to all suicide risk cases in general; and (b)in any event, there would usually be adequate reception facilities in the receiving country to allay even a heightened risk, preventing any breach in most cases.
But what if there are no sufficient facilities?
Confusing domestic and foreign cases
The Court of Appeal in J was spared this question, because as it noted at  the appellant conceded that there were adequate facilities in Sri Lanka to treat the appellant for depression, and there was no reason to suppose that his treatment would not be continued there. However on the logic of J, if the question had arisen, one would have expected responsibility to be analysed as domestic, because the cause of the harm arises during the ‘domestic’ phases of deportation, and predates reception in the receiving country.
In subsequent cases, however, the Court of Appeal sidelined that logic in favour of treating cases of ongoing harm caused by deportation not as domestic cases but as foreign unintentional cases, on the basis that the determining factor is a lack of medical facilities to treat the harm, and thus the same policy considerations as give rise to the need for a higher test in medical cases, apply.
Thus the Court of Appeal in Tozlukaya v SSHD  EWCA Civ 629 held:
“Although the court’s approach in these mental health cases derives from D v United Kingdom, it was stated in J v. Secretary of State (at para 42) that the circumstances are not precisely analgous. One material difference is that the risk in the present context arises not just from the person’s removal to a place where the condition is likely to worsen, but from the direct impact on that person’s mental health of the decision to remove. Nonetheless the similarities are in my view more important than the differences.” 
Tozlukaya was approved in RA (Sri Lanka) v SSHD [EWCA Civ 1210], and RA was approved in Y and Z v SSHD  EWCA Civ 463. The entire line of cases was then robustly confirmed in AXB v SSHD  UKUT, closing the door on any alternative interpretation of J, and ensuring applicability of the more stringent test in N to cases which instead look suspiciously like domestic cases, exempt from it.
That approach is unfortunate for several reasons. First, it absolves removing states of responsibility for psychological harm caused by their removal processes, provided only that the effects are prevented from maturing until after an appellant has arrived abroad. At that point responsibility inexplicably offloads onto the receiving state, provided that it cannot treat the deleterious effects which the removing state has caused. It is in a troubling sense, a ‘scapegoat’ principle, and a receiving state could justly protest at being fixed with responsibilty for the suicide of a detainee, when all of the damage was caused by the removing state.
Second, it is hard to reconcile that approach with J, given the deep and fundamental difference between a foreign and a domestic claim drawn in J itself. The approach more plausibly leaves the distinction between foreign and domestic cases in tatters.
Third, it is regrettable that a fundamental distinction was blurred, simply to achieve a superficial alignment of suicide risk cases, and medical cases, for the purposes of the test in D. The policy considerations behind that alignment are surely less compelling than the need to distinguish rigorously between foreign, and domestic, bases of liability.
AM Zimbabwe v SSHD  UKSC 17
The significance of the legal issue with which the Supreme Court in ‘AM’ was tasked was well recognised by Lord Wilson in his opening paragraph:
“1. This appeal requires the court again to consider one of the most controversial questions which the law of human rights can generate… So considerations of public policy on the one hand and of what is said to be private existential need on the other clash like warriors; and upon the courts lies a heavy burden in determining which should, under the law, prevail.”
AM concerned an HIV positive appellant, who “if deported to Zimbabwe, […] would be unable to access the medication which, here in the UK, prevents his relapse into full blown AIDS.” The case was therefore a foreign intentional medical case.
The task for the Supreme Court was to consider what the test in Paposhvili was, whether it had been correctly incorporated by the Court of Appeal below, and if not, whether, within the tacit framework of the Pinnock principles, the ECtHR should be followed, or should be departed from.
The Pinnock principles, it will be recalled, state that it would be wrong for the Supreme Court not to follow any clear, and constant line of decisions by ECtHR, unless that line of decisions is either:
- inconsistent with some fundamental substantive or procedural aspect of UK law, or
- its reasoning appears to overlook or misunderstand some argument or point of principle.
A clear and constant line of decisions?
At - Lord Wilson summarised six key authorities: that of the ECtHR in D v UK; of the House of Lords and then of the Grand Chamber of the ECtHR in the case of ‘N’; of the ECtHR in Yoh-Ekale Mwanje v Belgium; of the Grand Chamber of the ECtHR in Paposhvili v Belgium; and finally that of fourth chamber of the ECtHR in Savran v Denmark (which case it was noted was pending further consideration by the Grand Chamber).
These cases were the candidates for the ‘clear and constant line of decisions’ required by Pinnock, and they respectively, pre-ambled, asserted, applied, remodelled and/or potentially defended the test in ‘N’, which had come to dominate the assessment of Article 3 medical and suicide cases.
The ‘N’ test
Lord Wilson narrated that in ‘D’ the ECtHR had found a breach of Article 3 established in the case of an individual with HIV, whom the UK proposed to remove to his country of St Kitts following a series of convictions, on the basis of evidence the individual was “about to die; and the essence of the decision was not the absence of treatment on St Kitts but the inhumanity of, in effect, pulling a man off his deathbed.”
Lord Wilson noted the “obvious disquiet” of the Committee members in reaching the conclusion they did in ‘N’, citing in particular Lord Brown’s comment at §91 (“It is perhaps not, however, self-evidently more inhuman to deport someone who is facing imminent death than someone whose life expectancy would thereby be reduced from decades to a year or so.”); but who had however explained the principled basis for the decision, in the words of Lord Wilson, as follows: “the appellant in the N case contended for an interpretation of Article 3 which would cast upon the UK a positive obligation, namely to continue to treat her indefinitely; whereas, in the light of his imminent death, the applicant in the D case had secured an interpretation which had cast upon the UK only a negative obligation, namely not to deport him. Lord Brown also adverted in para 89 to the far-reaching consequences for contracting states if they were unable to remove foreign citizens with no other right to remain there just because treatment for their life-threatening conditions in their country of origin would be far less effective than that currently administered.”
Lord Wilson noted: “The Grand Chamber [in ‘N’] observed in para 34 that, since the judgment in the D case 11 years previously, the court had never held that removal of an alien would violate the Article on grounds of ill-health; in para 42 that in the D case the applicant had appeared to be close to death and that a reduction in life expectancy in the event of removal had never in itself been held to amount to a violation of article 3; in para 43 that, although there might be “other very exceptional cases in which the humanitarian considerations are equally compelling”, the high threshold for violation set in the D case should be maintained; and in paras 44 and 45, much as Lord Brown had suggested, that an obligation to provide free and unlimited treatment for a serious condition, if of a standard unmet in theapplicant’s country of origin, would place too great a burden on contracting states” [albeit that final point was the subject of “trenchant” objection in a dissenting opinion].
In Yoh-Ekale Mwanje v Belgiumthe ECtHR also applied the test set out in ‘N’. The case again concerned a person with HIV objecting to removal to her own country in reliance upon her Article 3 rights. No violation of the right was found on the basis that “the case was indistinguishable from the decision of the Grand Chamber in the N case; … that it was improbable that the applicant would obtain the necessary medication in Cameroon and that, without it, her survival in the short or medium term (later described as for more than a year) was in doubt; but … that the chief consideration was the applicant’s condition prior to removal, which was stable”.
Lord Wilson however also noted the genesis for the movement against the ‘N’ criteria with reference to the terms of the dissenting judgement in that case: “We believe however that such an extreme threshold of seriousness – to be nearing death – is hardly consistent with the letter and spirit of Article 3, an absolute right which is among the most fundamental rights of the Convention and which concerns an individual’s integrity and dignity. In this regard, the difference between a person on his or her deathbed and a person who everyone acknowledges will die very shortly would appear to us to be minimal in terms of humanity. We hope that the Court may one day review its case law in this respect.”
Paposhvili – consistent with the N test, or not?
In Paposhvili the Grand Chamber of the ECtHR was addressing another application by an individual objecting to expulsion on medical grounds relying upon the protection of Article 3, this time to Georgia. The individual in the case had chronic lymphocytic leukaemia, but their condition was stabilised subject to the continued administration of treatment/medication being received in Belgium.
Lord Wilson noted that the court ultimately proceeded to determine the case before it on the footing:
“183. The Court considers that the ‘other very exceptional cases’ within the meaning of the judgment in N v The United Kingdom (para 43) which may raise an issue under Article 3 should be understood to refer to situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy. The Court points out that these situations correspond to a high threshold for the application of Article 3 of the Convention in cases concerning the removal of aliens suffering from serious illness.”
Broken into its elements Lord Wilson agreed that the Paposhvili test found a breach of Article 3 in circumstances where:
- A person was seriously ill (although not at imminent risk of dying in the returning state);
- For whom appropriate treatment is absent or could not be accessed in their own country;
- And who would in consequence be exposed to the real risk of either (a) serious, rapid and irreversible decline in her state of health resulting in intense suffering or (b) a significant (meaning substantial) reduction in life expectancy.
Lord Wilson also noted:
“23. Its new focus on the existence and accessibility of appropriate treatment in the receiving state led the Grand Chamber in the Paposhvili case to make significant pronouncements about the procedural requirements of Article 3 in that regard. It held
(a) in para 186 that it was for applicants to adduce before the returning state evidence “capable of demonstrating that there are substantial grounds for believing” that, if removed, they would be exposed to a real risk of subjection to treatment contrary to Article 3;
(b) in para 187 that, where such evidence was adduced in support of an application under Article 3, it was for the returning state to “dispel any doubts raised by it”; to subject the alleged risk to close scrutiny; and to address reports of reputable organisations about treatment in the receiving state;
(c) in para 189 that the returning state had to “verify on a case-by-case basis” whether the care generally available in the receiving state was in practice sufficient to prevent the applicant’s exposure to treatment contrary to Article 3;
(d) in para 190 that the returning state also had to consider the accessibility of the treatment to the particular applicant, including by reference to its cost if any, to the existence of a family network and to its geographical location; and
(e) in para 191 that if, following examination of the relevant information, serious doubts continued to surround the impact of removal, the returning state had to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant.”
Lord Wilson took the view that the Court in Paposhvili had simply noted the approach in ‘N’ as part of its justified recitation of the jurisprudential history of the approach adopted by the ECtHR to Article 3 medical cases, rather than expressly or positively agreeing with it.
Looking at the terms of §183 it was not the case that Grand Chamber in Paposhvili was simply offering a summation of cases falling within “other very exceptional cases in which the humanitarian considerations are equally compelling” within the scope intended by ‘N’ itself: if that were the case, the application in ‘N’ would have been allowed. On the contrary, it was “explaining that, in cases of resistance to return by reference to ill-health, article 3 might extend to a situation other than that exemplified by the D case, …in which there was an imminent risk of death in the returning state”.
Lord Wilson regarded the utility of the verb ‘clarify’ used by the Grand Chamber in seeking to describe what Paposhvili did vis-a-vis the ‘N’ criteria as likely to confuse; finding that the court had in fact departed from the approach adumbrated in ‘N’ consistent with the Convention being a ‘living instrument’; and further noting that “the Grand Chamber’s pronouncements in the Paposhvili case about the procedural requirements of Article 3, summarised in para 23 above, can on no view be regarded as mere clarification of what the court had previously said; and we may expect that, when it gives judgment in the Savran case, the Grand Chamber will shed light on the extent of the requirements.”
Crucially, however, Lord Wilson stopped short of finding that Paposhvili did not form part of a clear and consistent line of cases.
Wrong to follow Paposhvili?
As to the remaining Pinnock criteria, Lord Wilson noted at : “This court is not actively invited to decline to adopt the exposition of the effect of article 3 in relation to claims to resist return by reference to ill-health which the Grand Chamber conducted in the Paposhvili case. Although the Secretary of State commends the Court of Appeal’s unduly narrow interpretation of the Grand Chamber’s exposition, she makes no active submission that, in the event of a wider interpretation, we should decline to adopt it. Our refusal to follow a decision of the ECtHR, particularly of its Grand Chamber, is no longer regarded as, in effect, always inappropriate. But it remains, for well-rehearsed reasons, inappropriate save in highly unusual circumstances such as were considered in R (Hallam) and R (Nealon) v Secretary of State for Justice (JUSTICE intervening)  UKSC 2,  AC 279. In any event, however, there is no question of our refusing to follow the decision in the Paposhvili case. For it was 15 years ago, in the N case cited at para 2 above, that the House of Lords expressed concern that the restriction of article 3 to early death only when in prospect in the returning state appeared illogical: see para 17 above. In the light of the decision in the Paposhvili case, it is from the decision of the House of Lords in the N case that we should today depart.”
The Court of Appeal’s interpretation of the Paposhvili test
Lord Wilson had earlier considered whether the Court of Appeal had correctly followed the Paposhvili test. He excerpted the Court of Appeal’s gloss:
“38 […] This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (ie to the Article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of Article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (ie likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”
Playing spot the difference, the appellants in AM pointed out that “the Grand Chamber was addressing exposure ‘to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”, not exposure to a serious, rapid and irreversible decline resulting in intense suffering or in a significant reduction in life expectancy.
Lord Wilson concluded that: “[t]here is, so I am driven to conclude, validity in the criticism of the Court of Appeal’s interpretation of the new criterion”.
The difference is extremely important. The Court of Appeal sought to run the two different possible ways of satisfying the test into one by requiring that reduced life expectancy be a consequence of rapid and irreversible decline. But life expectancy can be significantly reduced by loss of medical treatment without any necessary immediate decline in health, and Paposhvili allows it to constitute a breach of Article 3 in its own right.
Further guidance followed from Lord Wilson:
- At  that a ‘significant’ reduction in life expectancy means at least a ‘substantial’ reduction;
- At  that “the requisite capacity of the evidence adduced by the applicant is to demonstrate “substantial” grounds for believing that it is a “very exceptional” case because of a “real” risk of subjection to “inhuman” treatment. All three parties accept that Sales LJ was correct, in para 16, to describe the threshold as an obligation on an applicant to raise a “prima facie case” of potential infringement of Article 3. This means a case which, if not challenged or countered, would establish the infringement: see para 112 of a useful analysis in the Determination of the President of the Upper Tribunal and two of its senior judges in AXB v Secretary of State for the Home Department  UKUT 00397 (IAC). Indeed, as the tribunal proceeded to explain in para 123, the arrangements in the UK are such that the decisions whether the applicant has adduced evidence to the requisite standard and, if so, whether it has been successfully countered fall to be taken initially by the Secretary of State and, in the event of an appeal, again by the First-tier Tribunal”.
Bringing the mountain to Mohammed
Previously, practitioners have sought to avoid classification of cases as foreign intentional, to avoid the high threshold in N. AM has now lessened that need considerably by moving the thresholds of foreign intentional, and domestic cases, closer. Many more medical cases will now succeed where previously they would have failed under N, or under the Court of Appeal’s now overruled interpretation of Paposhivili.
In summary, the Paposhvili test has now been domestically incorporated. The procedural requirements as to burden of proof apply, at least until further guidance is given in the case of Savran, pending before the Grand Chamber. Unsurprisingly, the UK has applied to intervene in that case.
Practitioners can of course expect increased efforts from the Secretary of State to portray receiving countries as having adequate medical coverage. CPINs will become more contentious as the purported medical capabilities of developing countries dubiously skyrocket. But at least appellants will be spared the absurdity of having to argue that they are beyond medical hope before any argument relating to the fatal effects of withdrawing their essential medical treatments can be raised.
Suicide risk cases have also long wanted for a principled approach,attributing ordinary Article 3 responsibility to a removing state where their deportation process destroys a deportee’s mental health, without having to satisfy a ‘higher threshold test’ based on a fiction of foreign responsibility.
Now the higher threshold test has arguably been lowered to the requisite level instead, achieving the same effect. On a sensible view, if a deportation process severely compromises a deportee’s mental health, so that suicide becomes substantially more probable, then that deportee’s life expectancy has been substantially reduced. The burden now falls onto the Secretary of State to produce convincing reasons why this equivalence should not hold. Absent such reasons, suicide risk cases face renewed prospects of success.
Shuyeb Muquit and Alex Bennie
 How similar is a matter for debate. Whilst the court suggested that the phrase ‘real risk’ imposed a more stringent test than merely that the risk must be more than ‘not fanciful’, it also held that all but one of the 6 factors enumerated at  –  applied in domestic, and foreign cases alike. The factor (Factor 3) which did not apply to both, moreover, largely concerned foreign intentional cases, more than foreign cases in general.
 This distinction is not itself beyond criticism. One could frame scenarios where a deportee commits suicide shortly after arrival in a receiving country, as ones where the suicide indeed resulted from the deportation process. However there is some conceptual difficultly in separating that claim from the claim, with some weight behind it, that it was the fact of being in the country of return which resulted in the suicide. In any event, however, AM now renders it unnecessary to litigate this particular point, by allowing success even if the distinction holds, in cases where suicide would postdate arrival.
 Experience shows, however, that almost all viable suicide risk cases fall into this sub-class, not least because evidence of pre-existing vulnerability is all but essential to quantify and demonstrate the risks posed by deportation.
 At , where the line of case law is set out as follows: J v Secretary of State for the Home Department  EWCA Civ 629, para 42; R (Tozlukaya) v Secretary of State for the Home Department  EWCA Civ 379, para 62; AJ (Liberia) v Secretary of State for the Home Department  EWCA Civ 1736, para 15; and CN (Burundi) v Secretary of State for the Home Department  EWCA Civ 587, paras 25-26.