In paragraph 182 of that decision the Grand Chamber of the European Court of Human Rights held that:
"... it is essential that the Convention is interpreted and applied in a manner which renders its rights practical and effective and not theoretical and illusory".
In paragraph 183 it also found that:
"... the other "very exceptional cases" within the meaning of the judgment in N v United Kingdom which may raise an issue under Article 3 should be understood to refer to situations involving the removal of seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy".
However, this is not the test which was applied by the House of Lords in N v Secretary of State for the Home Department and., although I am obliged to take into account decisions of the Grand Chamber , I must follow a precedent established by the House of Lords/Supreme Court and the evidence does not establish that the Respondent's case was of the type of exceptional cases protected by N.
Counsel for the Respondent submitted that the Respondent's situation could be equated with that of D v United Kingdom (1997) 24 EHRR 423 . However, as the Home Office Presenting Officer submitted the Upper Tribunal was bound by the decision in N v Secretary of State for the Home Department and the circumstances in that case were similar to that potentially facing the Respondent.
In paragraph 184 of Paposhvili the Grand Chamber went on to find that "the primary responsibility for implementing and enforcing the guaranteed rights and freedoms is laid on national authorities, who are thus required to examine the applicants' fears and to assess the risks they would face if removed to the receiving country, from the standpoint of Article 3".
Again, this part of the judgment imposes a test which went further than that established in N v United Kingdom and should not have been followed by the First-tier Tribunal Judge.
However, any error made by the First-tier Tribunal Judge James in relation to Article 3 or 8 of the European Convention on Human Rights outside the Immigration Rules was not material, as he had not erred in law when he allowed the appeal under paragraph 276ADE(1)(vi) of the Immigration Rules.
DECISION
(1) The Appellant's appeal is dismissed.
(2) For the avoidance of doubt, First-tier Tribunal Judge James' decision is upheld in relation to paragraph 276ADE(1)(vi) of the Immigration Rules, as permission had not been granted to challenge this part of First-tier Tribunal Judge James' decision.
Nadine Finch
Signed Date 18 January 2018
Upper Tribunal Judge Finch