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Reported Case

Home Office states it is revising Discretionary Leave policy in MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018) (13 November 2018)

Date: 13/11/2018
Duncan Lewis, Reported Case Solicitors, Home Office states it is revising Discretionary Leave policy in MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018)

The Home Office has stated it intends to revise its policy on Discretionary Leave in open court during cases of MV, MM and MK which came before Newey, Henderson and Hickinbottom LJ on Tuesday 30th October 2018 to determine whether they were appropriate cases to be put to the Supreme Court, following the judgment of the European Court of Human Rights (ECtHR) in Paposhvili v. Belgium, to consider the current approach to the following issues:

  1. Whether removal would engage Article 3 of the European Convention on Human Rights (ECHR) on health grounds (applying the House of Lords judgment in N v. SSHD); and

  2. Whether the category of persons viewed as at risk on Article 3 ECHR grounds due to their health, has been extended by the Paposhvili v. Belgium Judgment.

History of Cases

The case of MV relates to mental health and the issue of risk of suicide. MV is a Sri Lankan national, who entered the UK without leave on 17 October 2013, before claiming asylum, which was refused on 24 April 2014. He appealed this decision to the First-tier Tribunal (FtT), raising Articles 3 and 8 human rights claims, pertaining to ‘inhuman or degrading treatment’ and right to a private life.

As a former forced recruit of the Liberation Tigers of Tamil Eelam, he was detained by the Sri Lankan military 4 times, during which he claims to have experience both sexual and physical abuse akin to torture. The Secretary of State accepts that he was forcibly recruited and his account of the first two periods of detention, but refutes the latter two.

MV was seen by a consultant psychiatrist, Dr Robin Lawrence, who completed a report dated 7 August 2014 recognising that he was suffering from PTSD and severe secondary depression, prescribing antidepressants. At the time it was recommended that he undergo guided psychotherapy and that whilst he may be able to access medication were he to be returned to Sri Lanka, he would not have access to that type of guided support, which his aunt spearheads in the UK, thus he would have an increased risk of suicide.

The FtTJ (First-tier Tribunal Judge Eban) dismissed the appeal. The UTJ (Deputy Upper Tribunal Judge Pickup) refused MV's appeal, endorsing Judge Eban's analysis and her view that this case was "not so severe as to amount to a breach of article 3 on the basis of a risk of suicide" (para. 17). On 27 September 2016, on the papers, Elias LJ endorsed that paragraph, and refused permission to appeal to this court

Later, at the at the oral renewal on 2 November 2017, Floyd LJ gave permission to appeal on the ground that the FtT Judge and Deputy Judge had erred by applying the criteria in N, rather than Paposhvili which applies the less severe test to Article 3:

"It seems to me that it is seriously arguable that applying the less severe test to article 3 might on the evidence available have caused the FtT and the UT to reach a different result."

The cases of MM & MK relate to physical health, the availability of specific treatment required in the country of return and the effect of denial of such treatment upon MM. It also raises the additional issue of the obligation upon the State to carry out its own enquiries and investigations on the availability of the requisite treatment in the State to which the individual is to be returned.

MM & MK are nationals of Malawi, who entered the UK on student and visitor’s visas, respectively, and married whilst lawfully in the UK. MM is the dependant of MK as she lives with chronic health conditions which require management.

Court of Appeal Judgment

The question before the Court was whether the Court should either grant permission to appeal to the Supreme Court or make “positive noises” (per Hickinbottom LJ) to that effect, whilst ultimately leaving it up to the Supreme Court to decide.

The Court dismissed the appeal in MV and refused permission to appeal to the Supreme Court.

Despite this result, it remains imperative that the Supreme Court considers the criteria for Article 3 tests in N following the Paposhvili judgment, in order to settle the issue. MV is now appealing direct to the Supreme Court as a potential test case, to bring this issue into focus.


In MV the legal team have made some progress in regards to the law:

  1. MV’s submission that AM (Zimbabwe) had misconstrued the test in Paposhivili was considered by Hickinbottom LJ not ‘fanciful or even unarguable’ at para. 58; and

  2. The Court accepted that the Paposhvili guidance is clearly different from – and, to an extent, more relaxed than – that in N, at para. 8.

The Court stated that the available evidence falls far short of showing any real risk that MV's life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka. However, the First-tier Tribunal Judge appeared to accept there was a significant risk of suicide if MV were to be returned to Sri Lanka and LJ Floyd seems to have granted permission to appeal on that basis. So, there is more than one way of looking at risks.

MV also raises an interesting issue about whether Paposhvili has left intact the jurisprudence in relation to suicide cases, which was left undetermined. The Supreme Court may recognise this as something that needs clarification.

Revised Policy on Discretionary Leave

Significantly, during these proceedings, the Respondent stated in open court that there will be a revised policy and guidance for the grant of Discretionary Leave where there are exceptional circumstances, including cases where the individual would satisfy the test in Paposhvili. This is a much welcome and long-overdue development. This is awaited and it remains to be seen whether the new policy will hit the mark.


Stephen Knafler QC, of Landmark Chambers and Charlotte Bayati, of Goldsmith Chambers, represented MV in the above appeal, instructed by Raja Uruthiravinayagan, Dania Jawaid, Husein Meghji and Maria Petrova of Duncan Lewis. MM and MK were represented by Juliane Heider of Elder Rahimi Solicitors.


Find full details of this case on Bailii’s website here.
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