The Court of Appeal last week gave an important judgment in the case of MI (Palestine) v SSHD [2018] EWCA Civ 1782 that clarifies and confirms the test for claims made for asylum or humanitarian protection on the basis of Article 3 in situations where it is arguable that poor country conditions are the result of the “direct or indirect actions of parties to the conflict.” Previous caselaw that applied this test successfully to Somalia has now potentially been extended to Gaza also.

 The test as clarified by MI (Palestine)

In this case, a national of the Occupied Palestinian Territories (Gaza) and his wife, who was pregnant and suffered from PTSD and was dependent upon him, sought to argue that their medical conditions, taken together with the “dire” situation on the ground in Gaza, should succeed on the test under Article 3 so as to enable them to claim asylum in the UK.

They argued that the correct test to be applied was that laid down by the European Court of Human Rights in the case of Sufi and Elmi v UK [2012] 54 EHRR 9 which carved out an exception to the principle that it would be only in “very exceptional circumstances” that an Article 3 claim would succeed in respect of poor country conditions.

Sufi and Elmi concerned Somalia and held that the ‘very exceptional circumstances’ test would not apply to an Article 3 claim concerning that country – because “the crisis is predominantly due to the direct or indirect actions of the parties to the conflict.” There was, in such a situation, an intentionality on the part of the States or parties involved, which founded a lower threshold of the Article 3 test, to the point at which it was held that the Appellant must only demonstrate that he meets “the minimum level of severity” under Article 3.

Minimum level of Severity under Article 3 laid down in Sufi and Elmi v UK

To demonstrate that they meet the minimum level of severity under Article 3, consideration must be given to the following three factors:

  • The Appellant’s ability to cater for his most basic needs (food, hygiene and shelter)
  • The Appellant’s particular vulnerability to ill-treatment
  • The prospect of the Appellant’s situation improving within a reasonable time frame.

The Judgment in MI (Palestine)

Aside from clarifying that there is an exception to Article 3 claims in the situation where a conflict is directly attributable to the in/direct actions of the parties to it, which merits a lower threshold, Lord Justice Flaux did not in fact impose that test in MI (Palestine), instead leaving it to a differently constituted Upper Tribunal chamber to decide whether the case is one to which the approach in Sufi and Elmi should apply.

The Judge found that the country guidance pertaining to Gaza that is to be found in HS (Palestinaian – return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC) pre-dated the Israeli state’s actions in undertaking Operation Cast Lead in 2014, which had led to a significant deterioration of circumstances on the ground, and left the matter of whether to issue new country guidance on Gaza to the differently constituted Upper Tribunal to whom the matter would be remitted.

The importance of up to date country guidance information is made clear by this judgment – as well as the cumulative nature of the exercise when making assessments under Article 3 of the ECHR. It would be artificial to separate out the medical conditions from the situation on the ground, and to state that success was dependent on one or the other. Rather, the approach should be, as under Pretty v UK [2002] 35 EHRR 1, a holistic one.

Practitioners dealing with Article 3 claims based on humanitarian crises in conflict zones would be well-advised to keep an ear to the ground and to proffer up to date evidence of those crises and their impact on local populations in future cases.

Meanwhile, we await the remitted decision to see whether Gaza will be included in the list of countries to which the lower threshold of minimal severity under Article 3 may apply.

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