Title:	D.E -v- The Minister for Justice & Equality & ors
Neutral Citation:	[2018] IESC 16
Supreme Court Record Number:	104/17
High Court Record Number:	2016 678 JR
Date of Delivery:	03/08/2018
Court:	Supreme Court
Composition of Court:	Clarke C.J., O'Donnell Donal J., McKechnie J., MacMenamin J., O'Malley Iseult J.
Judgment by:	O'Donnell Donal J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Clarke C.J. Link O'Donnell Donal J., McKechnie J., MacMenamin J., O'Malley Iseult J. O'Donnell Donal J. Link

Clarke CJ
O’Donnell J
McKechnie J
MacMenamin J
O’Malley J

Between/

Judgment of O’Donnell J delivered the 8th day of March 2018

1 I fully agree with the judgment of the Chief Justice in this matter. I wish to add some observations in particular on the submissions made in respect of the relatively recent decision of the Grand Chamber of the European Court of Human Rights in Paposhvili v Belgium (41738/10) in which judgment was delivered on the 13th of December 2016. On behalf of the appellant, counsel argues that Paposhvili represented a significant development in the Article 3 jurisprudence in respect of deportation or removal of individuals suffering from serious medical conditions, and had significantly expanded the type of case in which Article 3 would be violated by such deportation or removal. On behalf of the State authorities, counsel contended that Paposhvili was merely a clarification of the existing case law most notably N v The United Kingdom [2008] 47 HRR 39, itself clarifying the landmark decision in D v The United Kingdom (1997) 24 EHRR 423. In my view both can claim to be correct at least to some extent.

2 The starting point must be the Article 3 prohibition on being subjected to torture or inhuman and degrading treatment or punishment. It is clear that Article 3 is, and is required to be, absolute and unqualified in its terms. On its face it relates to activities by others; state actors and also those for whom it can be said the contracting state is responsible. This is clear from the concepts of being “subjected to”, “torture”, and “punishment”. An initial reading of Article 3 might suggest that “inhuman and degrading treatment” should also be read in the same way particularly since it is clear that the phrase inhuman or degrading qualifies both “treatment” and “punishment”: the Article does not provide that “no one shall be subjected to punishment”. However, the Convention is a document to which there are now 47 participants, and is not easily amended by the contracting parties, and perhaps requires a certain flexibility in interpretation. Certainly the European Court of Human Rights considers that Convention has evolved through interpretation by the court in its case law and that the court has “extended the rights afforded and has applied them to situations that were not foreseeable when the Convention was first adopted”: The ECHR in 50 Questions, (Publication of the European Court of Human Rights) The extension of rights afforded is however a delicate task, making demands on a court’s reserves of legitimacy, and requires rigour in the court’s analysis. This is an essential component particularly where Article 3 is concerned, which once engaged, is unqualified.

3 The European Court of Human Rights does not apply the strict principles of stare decisis familiar in the common law world, and it is a mistake to read decisions as if they were binding authority rather than as part of a continuum of jurisprudence. Nevertheless the traditional techniques of case law analysis can be of assistance in illustrating what has been decided, and the implication of a decision for other cases. It is important therefore to understand Paposhvili first against its own facts, and second against the existing case law which it sought to clarify.

4 In Paposhvili a Georgian national living in Belgium convicted of a criminal offence was diagnosed with serious illnesses, Hepatitis C, Tuberculosis, and most importantly Chronic Lymphocytic Leukaemia. His wife and three children had been granted indefinite leave to remain in Belgium. Accordingly, deportation to Georgia as a criminal, would separate him from his family. However, the critical feature of any deportation was that while in Belgium he was being treated for his leukaemia with an expensive drug Ibrutinib without which it was likely he would die in six months. The treatment in Belgium was to stabilise his condition with a view to possibly permitting a donor transplant which remained his only prospect of survival, if carried out within a short time scale. The drug treatment was not available in Georgia and although treatment for lymphocytic leukaemia was available there, the applicant maintained there was no guarantee it would be available to him. As set out above, he would in any event be deprived of family support in Georgia. Nevertheless, the fifth section of the European Court of Human Rights, by a majority, dismissed his claim but the case was referred to the Grand Chamber. Further medical evidence was available at that stage. The seriousness of the applicant’s condition is illustrated by the fact that by the time the Grand Chamber heard his case he had died.

5 It is important to note that the applicant’s claim that deportation to Georgia would breach Article 3 was not considered by any domestic decision maker in Belgium. It appears that his initial application to remain on medical grounds was rejected on domestic law grounds which did not themselves require consideration of Article 3, because refusal did not lead directly to deportation. His challenge to the decision to remove him, where the issue of Article 3 might have been considered, was rejected because he did not attend the hearing and was not represented. The net effect was however, that a deportation order was made of a seriously ill man without any consideration of the Article 3 issue or indeed any other issue under the Convention. Furthermore, it followed that Belgian procedures permitted deportation to be effected without a consideration of Article 3 no matter how urgent and compelling the factual situation. Accordingly it is clear that the procedural issue was central to the decision of the European Court of Human Rights. This indeed was emphasised both by the terms of the concurring judgment of Judge Lemmens and from the fact that the Grand Chamber did not itself purport to determine , even on the considerable evidence available to it, that deportation was a breach of the applicant’s Article 3 rights in fact. Instead, it held that the Belgian procedures were insufficient to permit the Article 3 issue to be addressed and consequently there was a breach of the Convention. This emphasised furthermore the principle of subsidiarity, that is, that it was for the national institutions to make primary decisions on the question.

6 There is no doubt however, that some of the language at paragraph 183 in particular, if taken in isolation might suggest a broader application of the jurisprudence:

“181 The Court concludes from this recapitulation of the case-law that the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N v The United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision. As a corollary to this, the case-law subsequent to N v the United Kingdom has not provided more detailed guidance regarding the “very exceptional cases” referred to in N v the United Kingdom, other than the case contemplated in D v the United Kingdom ......

183 The Court considers that “other very exceptional cases” within the meaning of the judgment in N v The United Kingdom … 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.”

8 From a broader perspective, this interpretation is also consistent with the approach of the ECtHR as I understand it. It must be recognised that if the Court considers, correctly in my view, that a “very high threshold” is appropriate where the alleged breach of Article 3 will emanate not from the intentional acts or omissions of public authorities or non state bodies, “but instead from a naturally occurring illness, and a lack of sufficient resources to deal with it in the receiving country” (D v United Kingdom para. 43), that it is important to maintain that threshold, and not to blur the distinction between treatment an applicant experiences as a result of intentional actions of public authorities or others, and a naturally occurring medical condition. It follows that the cases in which Article 3 will be violated because of a natural occurring illness and the lack of sufficient resources in the receiving country, must remain exceptional. That indeed is illustrated by the facts of this case. Ireland, like other European countries has a well developed health system, at least when compared with many other countries in the world. It must be recognised however, that this necessarily means that health outcomes are likely to be better here and in comparable countries, than in many countries of origin. It is inescapable therefore that individuals with serious health conditions in particular will have poorer outcomes in their countries of origin, and will suffer more, and with reduced life expectancy than if they were in Ireland or in many contracting states. These are unpalatable truths, but there is a very significant limitation to the extent to which this geopolitical issue can be addressed through the prism of individual rights enforceable under the European Convention of Human Rights, or indeed the Irish Constitution. Otherwise no contracting state could refuse entry to a person suffering from a serious illness where treatment was better in the contracting state than in the country of origin. The prevalence of childhood sickle cell anaemia in Nigeria is itself a good example.

9 In Paposhvili the European Court of Human Rights addressed this question fleetingly at paragraph 192 of its judgment:

“192. The Court emphasises that, in cases concerning the removal of seriously ill persons, the event which triggers the inhuman and degrading treatment, and which engages the responsibility of the returning State under Article 3, is not the lack of medical infrastructure in the receiving State. Likewise, the issue is not one of any obligation for the returning State to alleviate the disparities between its health-care system and the level of treatment existing in the receiving State through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. The responsibility that is engaged under the Convention in cases of this type is that of the returning State, on account of an act – in this instance, expulsion – which would result in an individual being exposed to a risk of treatment prohibited by Article 3.”

Humanitarian considerations
11 There is no doubt that the development of constitutional interpretation in this jurisdiction, and the interpretation of the European Convention of Human Rights by the ECtHR has been broadly beneficial in ensuring that individuals can live in societies which permit the development to the greatest extent of human personality free from unnecessary state interference. There is no doubt also that guarantee of Constitutional and Convention rights is greatly enhanced by the capacity of individuals to enforce those rights as a matter of entitlement, rather than permission or discretion. But rights create correlative duties and obligations. It is not surprising, particularly where the scope of rights are expanded, that the boundary of what is required by law is sometimes seen as fixing the limit of what should be done. That can however obscure the fact that there is a difference between what a decision maker must do, and what such a person may do. Humanitarian considerations are not limited to, or defined by, the necessarily high threshold for consideration of breaches of Article 3 which would require a minister in a case such as this not to deport an individual. Situations which may not reach the high threshold posed by Article 3 may nevertheless properly be taken into account by a decision maker in considering the broad question of humanitarian leave to remain. In the present case, the Minister can decide to permit the applicant to remain in Ireland, even if the Minister considered that he was not obliged to do so because of the Convention or the Constitution. Here the appellant has been more than nine years in this country, was born here, and has lived all his life here. Not only does he suffer from a serious medical condition, but he has had the benefit of committed expert medical care since birth. The Minister is entitled, indeed required, to take all that information into account, including his medical condition, prognosis, history of treatment and likely future care, as well as the degree of integration in the community and other factors in deciding either on deportation, or on the revocation of any deportation order. Humanitarian considerations are not the sole preserve of the courts, national or supra national. It may also be useful to recall that even after Convention and Constitutional considerations are exhausted, the exercise of discretion remains the subject of domestic law. After the issue of “must” has been determined, the question of “may” properly remains, and any decision in that regard may still be subject to searching review for conformity with domestic principles including the consideration of all relevant factors, and the exclusion of irrelevant considerations, as well as for rationality and proportionality.