Non-nationals, living conditions and disability: Situating S.H.H. v. United Kingdom within Strasbourg’s Article 3 case-law
This guest post was written by Elaine Webster. Elaine holds a PhD from the University of Edinburgh and is currently a lecturer and director of the Centre for the Study of Human Rights Law at the University of Strathclyde.
In S.H.H. v. United Kingdom a chamber of the ECtHR, by four votes to three, found that a real risk of inhuman or degrading treatment had not been established and found no potential violation of Article 3 ECHR. The applicant in this case sought and was refused asylum in the United Kingdom. It was argued that, as a result of his severe physical disabilities, return to his home country of Afghanistan would give rise to a violation of Article 3. The core question in this case was which line of the Court’s authorities was most appropriately aligned with the facts in S.H.H. The Court’s assessment of the applicant’s situation was entirely intertwined with the choice of applicable case-law authority – essentially, should the Court’s approach be based on the judgment in M.S.S. v. Belgium and Greece, or on the judgment in N v. United Kingdom? Both of these Grand Chamber judgments are well-known. The first concerned treatment suffered by asylum seekers in Greece, whilst the second concerned treatment that would be suffered by an applicant receiving medical care for serious illness who had been refused asylum and was to be expelled from the United Kingdom. The applicant and the United Kingdom government took different views on which line of authority should apply, as did the majority of the Court and the dissenting judges.
S.H.H. raises several important questions, including around vulnerability, the significance of family support, the impact of situations of conflict and violence, and the nexus between these issues and physical disability. The case also illustrates at a more basic level the centrality of identifying in a precise way what would constitute the inhuman or degrading treatment at stake before asking whether state responsibility is engaged. I will refer mainly to this point in the comment below. This is particularly so in cases concerning what might be seen as broader issues of justice, in this context of nationals of less well-resourced and/or less politically-stable countries who seek protection under the Convention (akin to what Lydia Morris describes in her book Asylum, Welfare and the Cosmopolitan Ideal as the “encounter between cosmopolitan ideals and exclusionary policies of control […]” (p. 21)). The N v. United Kingdom line of case-law is, in my view, notable for a lack of precision as to what it is about such situations that would be not just objectionable in some sense but inhuman or degrading, and a lack of clarity as to who or what would inflict the prohibited treatment. Assessing the persuasiveness of the approach taken in S.H.H. depends on how the potential Article 3 harm is actually identified in each alternative approach.
The applicant claimed that he had been injured in a rocket attack in his native Afghanistan four years before arriving in the United Kingdom in 2010, resulting in amputation of limbs and other serious injuries. Following rejection of an appeal against refusal of the applicant’s asylum claim before the national immigration tribunal the applicant argued in Strasbourg that return to his home country would give rise to a violation of the right not to be subjected to inhuman or degrading treatment. The core tenets of the argument were, firstly, that, as a disabled person, he would be particularly vulnerable within a situation of indiscriminate violence. And secondly, that the applicant would be particularly vulnerable within a situation of scarce resources and discrimination against persons with disabilities. It was stressed in this connection that the applicant had no close family community. The majority of the Chamber was not persuaded by either argument. Several sources of evidence were considered by the Court, including the national tribunal’s country guidance, in-country and NGO reports, and UNHCR guidelines in respect of asylum seekers from Afghanistan. The Court took the view that an enhanced risk of violence towards disabled persons as a group had not been substantiated, and focused to a greater extent on the second argument concerning conditions of scarce resources and discrimination.
Which line of authority?
Was the applicant’s situation analogous to M.S.S. v. Belgium and Greece, N v. United Kingdom, or neither of the two? Different approaches to this question can be seen in the arguments of the applicant and Respondent State, in the Court’s reasoning on its choice of applicable authority, and in the dissenting opinion.
The applicant argued that the living conditions he would face were analogous to those found in M.S.S. v. Belgium and Greece rather than those found in N v. United Kingdom: fear, homelessness, lack of access to sanitation facilities and lack of means to meet basic needs, rather than concerning a medical condition and a lack of sufficient home country resources to deal with this. The government took the opposite view, arguing that M.S.S. v. Belgium and Greece had no relevance because the role of the Greek authorities had been crucial to the finding of a violation in that case and this was not replicated in S.H.H. Rather, the present case was seen to concern health and social care for persons with disabilities and so the high threshold upheld in N v. United Kingdom should pertain.
The majority accepted that the line of authority based in N was the more appropriate one. The Court, having outlined its case-law on ‘humanitarian conditions’, stated that although S.H.H. did not concern a naturally-occurring illness or a lack of medical treatment, in both cases the source of the harm would not be the authorities of the receiving State but a paucity of resources, whether directed towards medical treatment or welfare support. It emphasised that responsibility could not be directly attributed to the receiving State authorities. In distinguishing the present case from M.S.S. the Court stressed, as had the Respondent State, that responsibility of the Greek authorities was engaged because of their own inaction. The source of the harm and the attribution of receiving State responsibility were thereby seen to be of critical importance in determining which line of authority was most appropriate. The Court also distinguished the current case from Sufi and Elmi v. United Kingdom, concerning expulsion to a situation of generalised violence in Somalia where the risk derived from parties to the on-going conflict, which had itself followed the approach in M.S.S. Again the focus was on who was responsible for the potential prohibited treatment.
The dissenting judges were of the view that the current case fell in-between the two lines of authority and as such raised a substantively new issue for the Court to consider. A preferable approach, it was stated, would have started with a primary focus on the nature and impact of the applicant’s particular disabilities.
The favoured approach in S.H.H. led the Court to find no violation of Article 3. This is in common with other cases that have failed to meet the high threshold maintained in N (such as Yoh-Ekale Mwanje v. Belgium). The Court was not satisfied that the applicant had demonstrated that he could not make contact with remaining family members, which had been a core part of the argument on behalf of the applicant. Furthermore, the Court placed significant weight on the fact that the applicant had received support and medical treatment in the period between suffering his injuries and arrival in the United Kingdom. As the majority was not persuaded that the applicant’s disabilities could not be appropriately accommodated in his home country, even if the court had proceeded on the basis of a different authority it is unlikely that its conclusion would have been different. Although the reasoning of the Court is on the whole transparent it would have been positive had it been slightly more explicit about the significance of the key disability dimension. A particularly interesting aspect of the argument was that Article 3 of the Convention should be informed by the UN Convention on the Rights of Persons with Disabilities and the Court was open to this, although did not elaborate upon it. It concluded that, even taking this into account, the Article 3 threshold had not been met. Presumably the particular disabilities of the applicant must be the key factor in a relative assessment of whether the threshold of inhuman or degrading treatment has been reached however the harm is articulated.
Was the Court’s choice of the appropriate line of authority convincing? The Court acknowledged that although S.H.H. did not concern a lack of continuing access to life-sustaining medical care the situation was nevertheless comparable. This raises the question of what the N-type cases are really about. The Court seemed to suggest that N was about a lack of social provision by the receiving State, and also identified this as the harm in S.H.H. The form of harm in N-type cases, however, is perhaps not quite so straightforward. This category of case displays a lack of a clear, consistent preference between treatment that would be suffered in the receiving state and treatment inflicted by the expelling state. For example, are these cases really about a lack of resources in the home country whether or not there is an illness/medical care dimension, or about the deprivation via expulsion of life-sustaining medical care? Different possible interpretations are evoked by the dissenting judges in N v. United Kingdom (see paras. 20-23). I think the most coherent way of characterising the harm in such cases is as yet unsettled.
Application of the N v. United Kingdom authority is also questionable in that the Court, in rejecting the analogy with M.S.S, focuses on the fact that responsibility could be directly attributed to the Greek authorities. M.S.S is indeed fundamentally different to S.H.H. because of the mode of state responsibility in play – in the first responsibility derived from the inaction of the Greek authorities whereas in the latter it would have been engaged by the act of expulsion. Nevertheless, the form and source of the harm – a situation brought about by the state institutions – should have been a prior question to that of state responsibility. In sum, the way the harm is articulated will influence one’s view of how the two lines of authority should be distinguished and indeed the extent to which they should be seen as concerning distinct situations at all.