Guest post – Lewis Graham: ‘The Supreme Court, Human Rights and Strasbourg ‘Clarifications’’

The Supreme Court recently handed down its judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, concerning the circumstances under which deportation can be resisted under Article 3 ECHR. The case was brought by an individual who challenged his deportation on the ground that, as he was HIV-positive, his health would deteriorate significantly if removed from the UK to his home country of Zimbabwe. To analyse some of the wider implications of the development of the law in this field, I am delighted to publish this guest post, authored by Lewis Graham of the University of Cambridge (his details, here). Lewis has a growing list of publications on UK-Strasbourg relations, and the interaction between national judiciaries and Strasbourg.

The Supreme Court recently handed down its judgment in AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, concerning the circumstances under which deportation can be resisted under Article 3 ECHR. The case was brought by an individual who challenged his deportation on the ground that, as he was HIV-positive, his health would deteriorate significantly if removed from the UK to his home country of Zimbabwe.

Before 2016, his case would have failed. This is because according to Strasbourg (see N v UK), deportation could only be resisted on medical grounds where circumstances were truly “exceptional” – in reality, where death was imminent and guaranteed, a standard which even the most tragic cases routinely failed to meet (see here, here, here and here). In 2016, however, in a case named Paposhvili, the Grand Chamber widened the circumstances under which removal could be challenged: if removal would result in a serious, rapid and irreversible decline in health (rather than imminent death), Article 3 could come into play. For more on the substantive law, see the expert analysis of Loudres Peroni here and Adrienne Anderson here.

The simple question for the Supreme Court in AM was: should it continue to follow the old law, or depart from it in light of Paposhvili? The Court, unanimously, took the latter course. But in order to do so, it was necessary to recognise, in the first place, that through Paposhvili the law had underwent a significant development.

The problem is that the Strasbourg Court very rarely acknowledges this directly. Certainly, it is very uncommon for it to directly overrule its previous case law or to direct that one of its previous pronouncements should no longer apply. As Lord Wilson rightly said (para 22), when Strasbourg takes a leap forward, it often frames this as a mere clarification of the existing law. That was certainly the language used in Paposhvili (see para 182).

Two examples may illustrate Lord Wilson’s point. The first is Vinter v United Kingdom. In that landmark case, the court considered the requirements of the Convention in the field of whole-life sentences (that is, sentences which, on their face, continue indefinitely, and which offer no realistic prospect of release for the detained). Although in Vinter the court made no reference to developing the case law or introducing any new legal principles, it is self-evident that this is exactly what it did. In particular, from Vinter onwards, in order to comply with Article 3, all prisoners must be able to access some review mechanism which gives them a chance, however remote, to reduce or end their sentence under certain conditions, and those conditions must not only relate to dignity and rehabilitation, but should be knowable to the prisoner from the imposition of their sentence. These were significant developments (indeed, the life sentences system in Bulgaria met the pre-Vinter standard but not the post-Vinter standard; ditto the system in Hungary) but the weight of such developments went completely unacknowledged.

The second example is Ibrahim v United Kingdom. Whereas the court in Vinter underplayed the extent to which its judgment expanded the requirements of the Convention, the court in Ibrahim underplayed the extent to which its judgment rowed back on its previous case law. To put it shortly, in the cases prior to Ibrahim, the court insisted that if an individual was not provided with access to a lawyer, and the state could not provide ‘compelling reasons’ for this restriction, this would result in an automatic breach Article 6 of the Convention. In Ibrahim, the court changed its mind, holding that whilst a lack of ‘compelling reasons’ would be a weighty consideration in an assessment of whether Article 6 was breached, such a breach would no longer automatically arise. However, the court did not acknowledge that it has made any change to the law. In fact, it claimed to be seeking to “clarify” its earlier law, and to provide “guidance” as to what it had “intended” the law to mean in its earlier pronouncements. This is about as unconvincing as legal reasoning can get – as Judges Sajó and Laffranque straightforwardly put it in their additional judgment, Ibrahim “departs from the standards of a fair trial as determined in Salduz, under the guise of interpreting it” (for more in-depth analysis on this saga – please forgive the shameless plug – see my case comments on Beuze (2019) 3 Crim LR 230 and Abdurahman (2020) 5 Crim LR 453).

As such, dubious “clarifications” are not all uncommon in the Strasbourg case law (although that Court is not alone in adopting such a practice; the UKSC might be just as guilty). Regardless, Strasbourg’s reluctance to admit what it was doing in Paposhvili may have been one of the reasons why the Court of Appeal in the present case adopted such an “unduly narrow interpretation” (AM, para 34) of the law. Sales LJ suggested that Strasbourg had sought “only to clarify the approach set out in N v United Kingdom… not to effect any major change to what had been authoritatively laid down in that case”. The court could not have intended to effect a significant departure from its previous case law, he reasoned, else it would have used language stronger than ‘clarify’ and would have been more explicit about departing from its previous case law. Since it did not do so, the impact of Paposhvili could only have been minimal.

By contrast, the Supreme Court looked beyond this formalistic analysis, and rightly held that “the Paposhvili case… can on no view be regarded as mere clarification of what the court had previously said” (para 32). It considered what the Court had done rather than what it had said it had done. By comparing the statements of law in Paposhvili with those set out in N, it was clear, at least for Lord Wilson, that the older, strict test had been replaced by a (comparatively) more humane one. As a result, he allowed the appeal and sent back AM’s case for determination in line with this new standard.

It is surely perfectly legitimate for the Strasbourg court to depart from its previous case law and adopt a new position – the Convention is, after all, a living instrument, and the Strasbourg Court is tasked with “chart[ing] its growth” (AM, para 22). But given that it is far from the first time that the court has modified the law under the guise of ‘clarification’, it may be useful to ask: why might Strasbourg be reluctant to accept that it developed the law in practice, even if this is clearly fictitious?

One reason may be that a decision purporting to merely clarify the existing law may attract comparatively less scrutiny than a volte-face. Given that Strasbourg seeks the harmonious implementation of the Convention across states, framing a decision as something of a ‘soft’ development may be more likely to result in a positive (or at least less critical) reception by national courts and politicians. Were the court to nakedly declare that it was departing from its long-held position (especially if it is then taking up a position which widens the scope of rights and places a greater burden on states), this would also raise alarm bells about the propriety of the court’s activism and its role in contested political decisions (meddling not just by unelected judges, but a human rights court, and a foreign one at that!)

Further, UK courts have quite rightly insisted that they have no obligation to follow Strasbourg jurisprudence which is not “clear and constant” and have refused to follow cases believed to be out of step with the general jurisprudence. Cases where Strasbourg departs from its previous position, by their very nature, constitute departures from a constant line of jurisprudence. As such, were Strasbourg to insist that it was departing from its previous position, this may allow states to choose not to follow it on consistency grounds (indeed, this is exactly how the Upper Tribunal sidelined Paposhvili in an earlier case).

Therefore, Strasbourg is caught is something of a Catch-22: if it frames its decision as a mere ‘clarification’ of its previously-held principles, national courts might refuse to recognise and give effect to the full weight of its judgment. But if it identifies its decision as a new development or departure from its previous position, national courts might refuse to give effect to it because it does not form part of a consistent line of case law!

[authored by Lewis Graham of the University of Cambridge (his details, here).]

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