Court of Appeal overturns Upper Tribunal decision on Article 3 and Gaza
3 August 2018
The Court of Appeal has found that it is “sufficiently arguable” that conditions in Gaza are attributable to “the direct and indirect actions of the parties to the conflict” for a fresh decision to be made in the case of a Palestinian family contesting removal. This important decision means that the threshold of “exceptionality” that applies under Article 3 of the European Convention on Human Rights, when relying on country conditions, does not necessarily apply where Gaza is concerned.
In MI (Palestine) v Secretary of State for the Home Department  EWCA Civ 1782, the Court of Appeal has set aside a decision of the Upper Tribunal, which had concluded that “arguably little had changed” since the last country guidance case in 2011. The Tribunal had also stated that, “it matters little who is to blame as I am concerned with the position on the ground” (see ).
Lower threshold under Article 3 when country conditions predominantly caused by the ‘direct and indirect actions of parties to a conflict’
In Sufi and Elmi v UK (2012) 54 EHRR 9, the European Court of Human Rights held that the “very exceptional circumstances” test in in N v UK  47 EHRR 39 did not apply when considering an Article 3 claim based on the country conditions in Somalia. That was because:
“…that crisis is predominantly due to the direct and indirect actions of the parties to the conflict…” (see ).
In those circumstances, it was necessary only for the applicants to establish that they met the “minimum level of severity” under Article 3. This included consideration of an “applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame” (see ).
“Sufficiently arguable” that conditions in Gaza meet the Sufi and Elmi test
In the Upper Tribunal the appellant had unsuccessfully argued that Article 3 would be breached by the dire conditions in Gaza taken together with his and his family’s individual circumstances: his wife was heavily pregnant and there were serious concerns about her mental health (see ). In allowing the appeal, Lord Justice Flaux held that the Tribunal had failed to consider Sufi and Elmi and to consider properly what test under Article 3 should be applied, only considering and applying N (see ). Having regard to the country evidence that had been before the judge, Flaux LJ concluded:
“…it is sufficiently arguable that the conditions in Gaza are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of  of Sufi & Elmi and that there was an element of intentionality if that is a necessary ingredient before the approach in that case will be adopted” (see ).
“the Deputy Upper Tribunal Judge failed to have proper regard to the country evidence, in particular the evidence as to the seriously worsened position after the Israeli military operation in 2014” (ibid).
Notably, Flaux LJ also observed that the country guidance case on Gaza was “somewhat out of date”, being based on the position in 2010, and pre-dating Sufi and Elmi (see ). In the circumstances, he saw the “sense” of new country guidance, although ultimately this was a matter for the Upper Tribunal.
This is an important case where the Court of Appeal has followed Sufi and Elmiand recognised the relevance of the direct and indirect actions of others in relation to a claim based on country conditions, under Article 3 (as well as Article 15(b) of the Qualification Directive). Significantly, it has also recognised that it may well be inappropriate to apply the N test of exceptionality to Gaza.
The evidence before the Upper Tribunal revealed that:
“Three Israeli military operations in the past six years, in addition to eight years of economic blockade, have ravaged the already debilitated infrastructure of Gaza, shattered its productive base, left no time for meaningful reconstruction or economic recovery and impoverished the Palestinian population in Gaza, rendering their economic well-being worse than the level of two decades previous…”
It will be in this particular context that it will be necessary for the Upper Tribunal to consider the predominant cause of the conditions in Gaza, where, as the appellant argued in the Court of Appeal, it has repeatedly been stated that the ongoing Israeli blockade amounts to “collective punishment”.
The Upper Tribunal has made such assessments before. In AMM and Ors (conflict; humanitarian crisis; returnees; FGM) Somalia CG v SSHD  UKUT 445 (IAC), it found that the actions of others were not the predominant cause of the country conditions, but these were still highly relevant to the Tribunal’s finding that the test of exceptionality under N was in fact satisfied. Thus even where it is not possible to argue that the predominant cause of country conditions is an ongoing conflict, it may still be possible to argue that the N test is met, although the decision in SHH v UK  57 EHRR 18 (in relation to Afghanistan) shows the difficulties with any of these arguments. Practitioners will need to consider carefully the availability of any such arguments and evidence in support. Whatever the test being applied, there should be a cumulative assessment of all relevant factors.
The appellant was represented in the Court of Appeal by Garden Court North Chambers’ Vijay Jagadesham, led by Manjit Gill QC of No.5 Chambers and instructed by Kate Ormsby of the Greater Manchester Immigration Aid Unit. (The appellant was originally represented by Kerry Smith of Garden Court North Chambers in the Upper Tribunal and in his successful application for permission to appeal.)