Human Rights Application on Medical Grounds

What Is a Human Rights Application on Medical Grounds?

In some cases, individuals may be able to obtain leave to remain in the UK on the grounds that leaving the UK would breach their human rights, due to a serious medical condition. Qualifying medical conditions can be physical or mental in nature, although the threshold for applying for leave on medical grounds is incredibly high.

This means that, even if leaving the UK would detrimentally impact your health, you may still not be eligible to remain in the UK on medical human rights grounds.
Claims can be made according to Articles 3 and 8 of the European Convention on Human Rights.

Article 3 focuses on inhuman or degrading treatment whereas Article 8 focuses on quality of life. Both Articles can be applied in the case of compelling medical reasons for remaining in the UK, although it is difficult to meet the threshold for a successful claim.

In general, you will only receive limited leave to remain in the UK in the case of a successful application – generally leave of 30 months. In some exceptional cases, however, indefinite leave to remain may be granted.

You may either apply for asylum in the UK or to appeal a deportation order on the basis of your Article 3 and 8 rights.

Legal Basis for Medical Human Rights Claims

The legal basis for medical human rights claims to remaining in the UK primarily comes from the European Convention on Human Rights. Specifically, Articles 3 and 8 of the Convention can be used as the basis for a human rights claim.

Article 3 is intended to protect against torture or inhuman or degrading treatment or punishment. This can act as a basis for medical claims to remain in the UK if leaving the UK would constitute inhuman or degrading treatment based on the disparity between the quality of medical care available in the UK versus the country to which the individual in question would otherwise be returned.

However, it is important to note that the threshold for demonstrating this is especially high; it is not sufficient that medical care in the UK simply be better than medical care in the country of potential return.

Instead, applications for medical human rights claims must generally demonstrate that return would pose a real risk of substantial decline in health leading to either intense suffering or a substantial reduction in life expectancy, based on absence of or lack of availability of appropriate healthcare in the country in question. The applicant will need to provide evidence which demonstrates that such a risk is likely and would constitute inhuman or degrading treatment.

The other legal basis is provided by Article 8, which focuses on the right to respect for private and family life, of which medical conditions are taken to be a constituent part.
Note that difficulty in leaving due to either mental or physical health conditions are not likely to be sufficient to meet either legal standard.

In general, those without leave to remain in the UK will be expected to leave even in cases of ill health, unless doing so would lead to substantial health decline.

Who Can Apply and When?

If you do not have leave to remain in the UK and are facing needing to leave or deportation, you can apply for leave to remain in the UK on the basis of your medical human rights.

If you have received a deportation order and are appealing the order on the basis of a medical human rights claim, based on either your Article 3 or 8 rights, you should submit your appeal within 14 days.

Children can also apply for leave to remain in the UK based on their medical human rights. The best interests of the child must be taken as a primary consideration in such cases, though other factors may also be considered alongside the child’s best interest.

This means that, in some cases, the threshold for medical human rights leave may be considered met where the case involves a child when it would not have been met had an adult applicant submitted a comparable application.

The Threshold Test – Why These Applications Are Difficult to Win

Applications for leave to remain on the basis of medical human rights are difficult to win because of the high legal threshold. It is not sufficient to have substantial physical or mental health conditions or for healthcare in the UK to be better than in the country to which the applicant would otherwise be sent.

In general, applications on medical grounds will only succeed if the applicant can demonstrate a real risk of substantial health decline in the case of leaving the UK, leading to either significant suffering or a substantial decrease in life expectancy. The UK government guidance explains that this is largely to deter ‘health tourism’, in which people visit the UK in order to receive healthcare.

It states that, in light of disparities between global healthcare systems, an application for medical human rights leave cannot be made purely on the basis of UK healthcare being of a higher quality.

However, if the medical human rights threshold is successfully met then applicants will receive leave to remain in the UK on medical human rights grounds, though this leave is unlikely to be indefinite.

Meeting the Article 3 Threshold

When establishing whether or not an applicant meets the threshold for remaining in the UK on medical human rights grounds, per Article 3, the Home Office will check whether one of the following conditions is met:

• The applicant faces a real risk of exposure to either serious, rapid, and irreversible decline in health which would lead to intense suffering, or:
• The applicant faces a real risk of reduction life expectancy (note that this might be applied differently depending on the age of applicant – i.e. what is considered a normal life expectancy based on their current age)

In addition, the decline in health and/or life expectancy would need to result from one of the following:

• No appropriate treatment in the proposed receiving country, or:
• No access to such treatment

When establishing whether this threshold has been met, the Home Office will check 3 steps, as follows:

• Step 1: Has the applicant provided evidence demonstrating that their human rights according to Article 3 would be breached upon being sent to the proposed receiving country? To pass this step, the applicant will need to have provided the following evidence:
  • Their medical condition
  • The treatment they are currently receiving for that condition
  • How likely alternative treatments are to be suitable
  • How an inability to obtain effective treatment would affect their health
• Step 2: If the initial case has been established, the applicant will then be assessed on whether there are serious doubts regarding whether they can be safely removed from the UK without a breach of their Article 3 human rights. This will involve assessing the following:
  • Is the healthcare available in the proposed receiving country sufficient to prevent a breach of the applicant’s Article 3 rights?
  • Is the healthcare in the proposed receiving country actually accessible to the applicant (taking into account cost, geographical location, etc.)?
• Step 3: If concerns still exist that leaving the UK might breach the applicant’s Article 3 human rights, the Home Office then needs to obtain reassurance from the receiving state that appropriate healthcare exists (and would be accessible) to the applicant, were they to return.

Meeting the Article 8 Threshold

Article 8 very rarely provides a successful basis for medical human rights claims. However, serious medical conditions may be taken into account when considering an applicant’s Article 8 grounds for remaining in the UK more generally – such as long residence or strong family ties – in which case the applicant’s medical condition might form part of their holistic case for leave to remain in the UK.

In general, however, it is very difficult to remain in the UK for health reasons on the basis of your Article 8 rights.

Step-by-Step Application Process

In general, applicants should submit a FLR(HRO) form when applying for leave to remain in the UK on medical human rights grounds. You should instead submit a SET(O) form if you are applying for indefinite leave to remain.

Note that, in cases where you apply by letter rather than by application form, your letter will generally be rejected and you will instead be sent the correct application form. However, letter applications may sometimes be accepted in cases where the medical condition is especially urgent and sufficient evidence is provided which satisfies the following conditions:

• The evidence is provided by an NHS clinician or consultant who is currently involved in caring for the applicant
• The evidence confirms that the applicant is indeed gravely ill
• The evidence confirms that, despite ongoing treatment within the UK, the applicant is considered to only have weeks to live

When submitting your application, you will need to provide substantial and compelling evidence that leaving the UK would breach your human rights.

You can submit your application online. It will then be processed by the Home Office and, in the event that your application is successful, you will then be granted leave to remain. The duration of leave is often 30 months, though the exact duration is at the discretion of the Secretary of State.

Medical Evidence Requirements

When applying for leave to remain on medical human rights grounds, there is a high burden of evidence. In particular, you will need to provide evidence of the following:

• Medical documentation confirming your condition (provided by a qualified medical practitioner who is responsible for your care)
• Details of the care being provided, and your prognosis in the event that that care continues to be provided
• Details of how the withdrawal of UK care would impact you
• Details of whether there are any alternative appropriate treatments
• Evidence that the care which you require is either unavailable or inaccessible to you in the proposed receiving country

In the event that you do not provide sufficient evidence, you may be asked to provide more, in support of your application.

Mental Health and Vulnerable Applicants

It is possible to submit medical human rights applications for leave to remain in the UK on the basis of mental health. However, in such cases, the threshold for demonstrating an Article 3 basis to remain in the UK remains the same, meaning that it is still very difficult to meet.

When considering whether you have a mental health-based claim to remain in the UK on the basis of your Article 3 rights, the Home Office will take into account the level of care available in the proposed receiving country and whether it would be accessible to you.

They will also take into account how mental health issues are perceived and treated in the proposed receiving country and whether you would consequently face negative treatment upon arrival in that country on the basis of your mental health condition and potential social stigma surrounding it.

Treatment in the Country of Origin – How It Is Assessed

When assessing treatment in the country of origin – or the country to which you would be returning – the Home Office will take into account 2 considerations:

• Is appropriate healthcare available to you in the country in question?
• If so, is that healthcare accessible to you? For example, will you be able to afford that healthcare and to travel to the relevant medical facilities?

In the event that the Home Office has reason to doubt that either of the above conditions will be satisfied, they will then need to seek reassurance from the receiving state in question that you would indeed have access to appropriate medical treatment upon your arrival.

Common Reasons for Refusal

Generally, applicants for leave to remain on medical human rights grounds will be rejected when the applicant is not deemed to have met the threshold for a potential breach of human rights.

If the Home Office has reason to believe that you could receive appropriate healthcare in the proposed receiving country, for example, your medical human rights application for UK leave will not be successful.

Additionally, if your medical condition is not deemed severe enough then your application also will not be successful; applications on the grounds of the healthcare in the UK being of higher quality will generally not be successful, for example.

Appeals

If you are issued a deportation order from the UK, you may be able to appeal the decision on the grounds of either your Article 3 or Article 8 rights.

Upon receiving the deportation order, you will need to make sure to submit the appeal within 14 days of receiving the order. The case will then be referred to the First-tier Tribunal.

As part of this process, you will need to attend a hearing, at which you will present your case to an immigration judge. The judge will then make a decision on your case, and your deportation order will either be revoked or allowed.

In the event that your deportation order is upheld, you can then apply for permission to appeal to the Upper Tribunal, but you will need to provide evidence that the First-tier Tribunal made a legal error when reaching its decision.

International Perspective – The Right to Health Beyond the UK

If you are expected to leave the UK but doing so could cause you substantial suffering on health grounds or a significantly reduced life expectancy, you may be granted leave to remain based on your medical human rights. This is because the UK government cannot require you to leave the UK if doing so would breach your human rights; you have a human right to health even upon leaving the UK.

However, when considering your case, the Home Office will examine whether or not the proposed receiving country is able to meet your health needs. If it is, you will generally not be able to meet the threshold for remaining in the UK on medical human rights grounds.

Practical Tips for Strengthening Your Application

There are a number of strategies you can use in order to strengthen your application.
One main strategy is ensuring that you provide as much evidence as you can demonstrating the severity of your medical issues and the negative impact which leaving the UK will have on you.

Another is making sure to seek legal assistance with your application. Meeting the threshold for leave to remain on the basis of your medical human rights is incredibly difficult, and navigating the process without legal assistance becomes even more difficult.

How Can IAS Help?

If you do not have leave to remain in the UK but are experiencing substantial health challenges which are being treated in the UK then you may have grounds to remain based on your medical human rights. In particular, you may be able to remain on the basis of your Article 3 right to freedom from degrading or inhuman treatment or on the basis of your Article 8 right to a private and family life.

However, meeting the threshold to remain in the UK on medical human rights grounds is incredibly difficult. As such, it is strongly recommended that you seek legal assistance before submitting an application for leave to remain on medical human rights grounds.

At IAS, we can help to ensure that you have the best chance of a successful application and that the evidence you submit is as strong as possible. Contact us online today or on +44 (0)333 414 9244 to learn more about our full range of services and to receive bespoke human rights support.