ECtHR Khaksar v. the United Kingdom (no. 2654/18)

Facts:

The Applicant is an Afghan national seeking medical care in the UK, who subsequently applied for asylum claiming that the particularity of his medical condition precluded the possibility of him receiving treatment in Afghanistan. His claim was dismissed by the authorities on grounds of him not meeting the well-founded fear element of the Refugee Convention and, in any case, his condition not being critical enough to render his removal inhumane under Article 3 ECHR.

After unsuccessful appeals, submissions to the Home Office were made, where the Paposhvili case was invoked amongst allegations that his removal would violate Article 3 and 8 ECHR, which were also dismissed. The Applicant did not seek permission for judicial review before the High Court but complained before the ECtHR instead, that his removal to Afghanistan would violate his right to private life under Article 8 ECHR based on his medical condition, the necessity for treatment in the UK and the security situation in Afghanistan. He also mentioned Article 3 ECHR in the medical context complaining about his condition being assessed as not serious enough.

Decision & reasoning:

The Court held his application inadmissible because the Applicant had not exhausted all domestic remedies available to him. It was further explained that the UK Court of Appeal had instructed all domestic courts to apply the Paposhivili criteria for the assessment of the removal of individuals suffering from critical medical conditions. As the Applicant did not seek permission for review before the High Court, domestic courts have been unable to review his claim, therefore no violation took place.

Outcome:

Application dismissed.

Observations/comments:

The case summary was completed by Odyssefs Platonas, LLM Student at Queen Mary University.

Other sources: