Judgments - N (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)

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    30.  This passage indicates that the court was taking upon itself the responsibility of extending the application of article 3 beyond the extension which had previously been recognised. This is, of course, within its sphere of responsibility. The correct interpretation of the Convention as an international instrument can only be expounded authoritatively by the Strasbourg court. This is not an exercise that either can or should be undertaken by a national court. But the passage also indicates that the court was well aware of the sensitive nature of the area that it was entering into. Although it does not say so, it must have appreciated that the effect of this further extension was to widen still further the extent of the protection afforded by article 3 as compared with that afforded by articles 32 and 33 of the Refugee Convention: see Chahal v United Kingdom (1996) 23 EHRR 413, para 80. Here too we are reminded of the absolute nature of the protection which is afforded by the article 3 guarantees to everyone within the jurisdiction of the contracting state. Once again the extension of its protection does not allow for any relaxation of its absolute nature.

    31.  It is not surprising therefore that the court insisted that in cases where this further extension applies all the circumstances are to be subjected to a rigorous scrutiny. While the phrase "all the circumstances" was used, the court singled out for special attention the applicant's personal situation in the expelling state. What it had in mind in regard to his personal situation is made clear by what is said in paras 50-53.

    32.  Here the court concentrated on the advanced state of his illness, on the availability of sophisticated treatment and medication in this country, on the care and kindness administered by the charitable organisation and on what the abrupt withdrawal of these facilities would mean for him. It was not just that his removal would hasten his death. There was a serious danger that the conditions in St Kitts would further reduce his limited life expectancy and subject him to acute mental and physical suffering. There was no evidence that any person was available to attend to the needs of what the court described in para 52 as "a terminally ill man" or of any other form of moral or social support. The court concluded in para 53 that in view of these exceptional circumstances and bearing in mind what it described as "the critical stage reached the applicant's fatal illness" it would be a breach of article 3 for him to be removed to St Kitts. In para 54 it explained that, although it could not be said that the conditions in the receiving country were themselves a breach of the standard of article, his removal would expose him to a real risk of dying under the most distressing circumstances and that this would amount to inhuman treatment.

    33.  The court concluded its assessment in para 54 by emphasising that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain on the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state during their stay in prison. While this statement was directed to applicants whose stay in the contracting state has been prolonged by a prison sentence during which they have become accustomed to receiving the benefit of various forms of assistance, it must be understood as applying more generally. This is because a comparison between the health benefits and other forms of assistance which are available in the expelling state with those in the receiving country does not in itself give rise to an entitlement to remain in the territory of the expelling state. It was only because of the exceptional circumstances that were identified in D's case that he was found to be entitled to the absolute protection of article 3.

    34.  In a concurring opinion Judge Pettiti observed that the humanitarian considerations arose in exceptional circumstances, which he described as "the AIDS disease in its final stages". He stressed that the inequality of medical treatment was not the criterion adopted by the court, as medical equipment in the member states of the United Nations was not all of the same technological standard. The case was not concerned with hospital treatment in general, but only with the deportation of a patient in the final stages of an incurable disease. He noted that the earlier case law concerned only cases where there was direct state responsibility. This decision was intended to afford additional protection to individuals confronted with an affliction that affects thousands of victims.

    35.  It has to be said that it would have been helpful if the court had done more to identify the criterion by which such cases were to be identified. The phrase "exceptional circumstances" does not provide that kind of guidance. It treats the issue as one of fact. But the judgment does not lack statements of principle. In para 54 it is stated that aliens cannot in principle claim any entitlement to remain on the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. Without qualification, the application of this principle to D's case would have led to the conclusion that the decision to remove him would not be a violation of article 3. The court was clearly anxious not to say anything that would undermine this principle. As Judge Pettiti said, a comparison between the medical and social benefits available in the respective states was not the criterion adopted.

    36.  What was it then that made the case exceptional? It is to be found, I think, in the references to D's "present medical condition" (para 50) and to that fact that he was terminally ill (paras 51: "the advanced stages of a terminal and incurable illness"; para 52: "a terminally ill man"; para 53: "the critical stage now reached in the applicant's fatal illness"; Judge Pettiti: "the final stages of an incurable illness"). It was the fact that he was already terminally ill while still present in the territory of the expelling state that made his case exceptional.

The Strasbourg jurisprudence since D's case

    37.  The next question is whether any further guidance as to the criterion by which these exceptional cases are to be identified can be found in the reasons which have been given in Strasbourg for the way in which other similar cases have been disposed of. It is convenient to take these cases in their historical order.

    38.  In BB v France, 9 March 1998, RJD 1998-VI, p 2596, the applicant who had been serving a period of imprisonment was suffering from HIV/AIDS. Due to recent developments in the treatment of the disease in France, the therapy which he was currently receiving in the medical centres attached to the penal institutions where he was being held had stabilised the illness in his case. He claimed that he would not have access to that medical care and the ability to benefit from the new drugs for the treatment of HIV/AIDS that were becoming available in France if he were to be deported to his native country, the Democratic Republic of Congo. The Commission, referring to Ahmed v Austria and D v United Kingdom, said that it was important to examine the application of article 3 in the light of all the circumstances which could entail a violation of it: para 53. It noted that it was highly probable that if he were to be deported he would not have access to treatment designed to inhibit the spread of the virus and that the numerous epidemics raging in his country would increase the risk of infection. To expect him on these facts to confront his illness alone, without any support form his family, was likely to make it impossible for him to maintain human dignity as the disease ran its course: para 55. It was relevant too that he had been in France for a significant period of time as a result of measures taken by the French authorities to detain him there: para 56. The Commission concluded that deporting him would amount to a violation of article 3. The French government gave an undertaking that he would not be deported, so on 7 September 1998 his case was struck out of its list by the Strasbourg court. It would have been helpful if it had not been and the court had had an opportunity of considering it, as the circumstances of BB's case were not directly comparable with those in D v United Kingdom. BB was not yet terminally ill. The Commission did not say that the circumstances of his case were exceptional. On the contrary, his case could be compared with that of many others suffering from HIV/AIDS, such as the appellant in this case, whose condition has been stabilised as a result of medical treatment in the expelling state which are unlikely to be available in the receiving state, with the result that the disease will before very long become terminal.

    39.  In Karara v Finland, Application No 40900/98, 29 May 1998, the circumstances were at first sight not unlike those in BB v France. The applicant, who was a citizen of Uganda, had been treated for an HIV infection since 1992. His infection had been stabilised by the medical treatment which he had received in Finland and was not yet at the stage of AIDS. His case was that his deportation to Uganda would result in an irrevocable deterioration of his state of health, as that medical treatment would no longer be available. The Commission, referring to D v United Kingdom, said that all the circumstances surrounding the case had to be subjected to a rigorous scrutiny, especially the applicant's personal circumstances in the deporting state. It directed its attention to the applicant's "present medical condition" when reaching its determination whether it would be contrary to article 3 for him to be deported. BB v France was distinguished on its facts, on the ground that the infection in that case had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. The Commission concluded that the applicant's illness had not yet reached such an advanced stage that his deportation would amount to treatment proscribed by article 3. It is to be noted that he had an appalling record of criminal behaviour, as he had been convicted on five counts of attempted manslaughter for having raped several women and having other sexual contacts knowing that he had contracted an HIV infection. But the Commission reminded itself that the absolute guarantees in article 3 applied irrespective of the reprehensible nature of the applicant's conduct.

    40.  That case was followed shortly afterwards by MM v Switzerland, Application No 43348/98, 14 September 1998 and by Tatete v Switzerland, Application No 41874/98, 18 November 1998. MM claimed that it would be a violation of article 3 for him to be removed to the Democratic Republic of Congo. His case was declared manifestly ill founded because his present condition was that he was not suffering from any HIV related illness and because the Swiss authorities had offered to pay for his treatment for at least one year if he were to be deported. Tatete too was a national of the Democratic Republic of Congo. She had been admitted to hospital in September 1997 for a period of about three weeks with a chest infection. It was found that she was suffering from the effects of HIV/AIDS, with a CD count which was less than 200 cells/mm3. A medical report which was produced in January 1998 after a further period in hospital stated that the HIV infection had reached stage C3, that she was suffering from tuberculosis, from the hepatitis B infection and from depression and that without the intensive stabilising treatment which she was receiving these illnesses would prove fatal in the medium term. Her complaint that her deportation would amount to a violation of article 3 was declared admissible. Having set out her arguments and those of the Swiss government, the Commission said simply that the application raised complicated questions of law and fact that could not be resolved at that stage but which required to be examined in depth. So the application could not at that stage be said to be manifestly ill founded. The case was later disposed of by means of a friendly settlement.

    41.  SCC v Sweden, Application No 46553/99, 15 February 2000, was the first case of this kind in which the question of admissibility was considered by the court under the new procedure. The applicant was a Zambian national. She was diagnosed in 1995 as suffering from HIV. Since then she had made regular visits to a hospital. In 1998 it was planned that she should commence an anti-HIV treatment. At first it was indicated that as the treatment was complicated and required strict adherence it could only commence if she was given a long term permit to reside in Sweden, but it was initiated in January 1999 when her state of health deteriorated. She submitted a medical certificate which stated that a consequence of its initiation was that termination of the treatment would result in a faster progress towards the AIDS stage and her supposed death. In a further medical certificate it was stated that the life-prolonging treatment would have a much better success rate if she was given the chance to continue it in Sweden since the standard of care and monitoring possibilities in Zambia were reduced compared with those that could be offered in Sweden. The Swedish government position, based on an opinion of the National Board of Health and Welfare, was that the fact that a person had been diagnosed with HIV or AIDS should not alone and generally be decisive of the question whether leave to remain there should be granted on humanitarian grounds. The assessment should take account of the alien's general state of health taking serious clinical symptoms into consideration. The court declared her application to be inadmissible.

    42.  The reasons which the Court gave for its decision in SCC v Sweden followed closely those that were given by the court in D v United Kingdom. Reference was also made to the decision of the Commission in BB v France, adopting the same summary as was used in Karara v Finland. There then followed these paragraphs:

    "Against this background the court will determine whether the applicant's deportation to Zambia would be contrary to article 3 in view of her present medical condition. In so doing the court will assess the risk in the light of the material before it at the time of its consideration of the case, including the most recent available information on her state of health …

    The court recalls that the applicant's present medical status was diagnosed in 1995 and that her anti-HIV treatment has just recently commenced. The court further recalls the conclusion of the Swedish National Board of Health and Welfare that, when assessing the humanitarian aspects of a case like this, an overall evaluation of the HIV infected alien's state of health should be made rather than letting the HIV diagnosis in itself be decisive. The court finds that the Board's reasoning is still valid."

The court also noted that according to a report from the Swedish Embassy in Zambia the same type of AIDS treatment was available there, although at considerable cost, and that the applicant's children as well as other family members lived there.

    43.  Two points stand out from this decision. The first is that it was the applicant's present state of health that was subjected to close scrutiny. This is, of course, appropriate where a decision is being taken on grounds of humanity, because it ought to be based on the most up to date information that is available. But there is more in the point than that. It was the applicant's present state of health that was critical to the decision in D v United Kingdom that because of his present state of health his case was exceptional. The second is that the court did not apply the same high standard of scrutiny to the applicant's future prospects were she to be returned to Zambia. The question whether she would be able to afford the treatment that was said to be available there was not addressed, nor was her fate were it to turn out that she could not afford it. It was enough that the treatment was available. The court's approval of the National Board of Health and Welfare's opinion that the assessment should be based on the alien's general state of health taking serious clinical symptoms into consideration is also significant. In that opinion the Board was making the point that the question whether the state should allow the alien to remain on humanitarian grounds ought not to receive a different answer in HIV cases from that which would be given in the case of other diseases with a serious prognosis.

    44.  That fact that the decision in D v United Kingdom is relevant to other serious illnesses was made clear in Bensaid v United Kingdom (2001) 33 EHRR 205. The applicant in that case was a schizophrenic who was suffering from a long-term psychotic illness. He was receiving treatment for his medical condition in this country which helped him to manage his symptoms. The drugs which he was receiving would not be available to him free if he were to be returned to Algeria, and there were other difficulties which gave rise to the risk that his existing mental illness would deteriorate resulting in self-harm and other kinds of suffering which the court said could in principle fall within the scope of article 3. It held nevertheless that his removal to Algeria would not violate that article: p 218. The difficulties of access to medical treatment there were noted, but the court said that nonetheless medical treatment was "available" to him there. The fact that his circumstances would be less favourable from that point of view from those enjoyed by him in the United Kingdom was not decisive. The risk that he would suffer a deterioration in his condition and that, if he did, he would not receive adequate support was said to be to a large degree speculative. The court summed the matter up in this way:

    "The court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by article 3, particularly where the case does not concern the direct responsibility of the contracting state for the infliction of harm, the court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of article 3. It does not disclose the exceptional circumstances of the D case … where the applicant was in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts."

    45.  In Henao v The Netherlands, Application No 13669/03, 24 June 2003, the applicant was a national of Columbia. He was serving a prison sentence for drug trafficking when he was found to be HIV positive and had been given antiretroviral medication since September 1999 to control the progress of the disease. Reports by the Medical Advice Board of the Ministry of Justice stated that his continuous treatment had resulted in an improvement of his immune system and that he was fit to travel, but that if that treatment were to stopped it could be expected that his health would relapse giving rise to an acute emergency which failing treatment would be permanent. The court declared his application that his removal to Columbia was a violation of article 3 to be inadmissible. Its reasoning followed the same pattern as in Bensaid v United Kingdom. Reference was made to D v United Kingdom ("the critical stage that the applicant's fatal illness had reached and the compelling humanitarian considerations at stake") and to SCC v Sweden (the need for the court to assess the risk that expulsion would be contrary to the standards of article 3 "in the light of the material before it at the time of its consideration of the case"). The reasons for the decision were summed up in these words:

    "In these circumstances the court considers that, unlike the situation in the above-cited case of D v United Kingdom or in the case of BB v France … , it does not appear that the applicant's illness has attained an advanced or terminal stage, or that he has no prospect of medical care or family support in his country of origin. The fact that the applicant's circumstances in Columbia would be less favourable than those he enjoys in the Netherlands cannot be regarded as decisive from the point of view of article 3 of the Convention."

    46.  The case of Ndangoya v Sweden, Application No 17868/03, 22 June 2004, fits into the same pattern as that established by the cases of Bensaid and Henao. The applicant in this case was a Tanzanian national. He was diagnosed as suffering from the HIV virus in 1991. In 1999 it was reported that he was engaging in sexual contacts without disclosing to his partners that he was HIV positive. He was charged and later convicted on criminal charges resulting from this activity and the Court of Appeal ordered that he should be expelled from Sweden. He had undergone antiretroviral treatment intermittently in 1996 and 1998, and had resumed that treatment in October 1999 when the viral levels in his blood were found to be very high and his immune system seriously weakened. That treatment had been successful in reducing his HIV levels to the point where they were no longer detectable. It was said that the prospects of his receiving that treatment in Tanzania were very slim and that its interruption would lead to a relatively rapid deterioration of his immune system, to the development of AIDS within 1 to 2 years and death within 3 to 4 years. The application was declared inadmissible. Here again, after stressing that the article 3 guarantees applied irrespective of the reprehensible conduct of the applicant, the court followed the same pattern of reasoning as it had adopted in Bensaid v United Kingdom, and the cases of D v United Kingdom and SCC v Sweden were referred to. Addressing itself to the applicant's present medical condition the court noted that there was no indication in the medical evidence that the applicant had reached the stage of AIDS or that he was suffering from any HIV-related illness. Medical advice that he would develop aids within 1 to 2 years if the treatment were to be discontinued was accepted, but it was noted that adequate treatment was available in Tanzania, albeit at considerable cost, that the applicant was in principle at liberty to settle in a place where that treatment was available and that as his family links had not be severed completely he would not be unable to seek the support of his relatives. The reasons for the decision were summed up in the same words as those which the court used in Henao v The Netherlands.

    47.  The last case in this series is Amegnigan v The Netherlands, Application No 25629/04, 25 November 2004. The applicant was a national of Togo. In May 2001, following a medical examination which disclosed that he might be infected with HIV, he was found to be in the A3 clinical category of the disease with a CD4 count (measured in this case in microlitres of blood rather than cubic millimetres of blood cells) of less than 200 cells/L. He was provided with antiretroviral treatment in August 2001, as a result of which by November 2003 his condition was stable although his immune system had still not been properly restored. The medical advice was that as soon as the therapy was stopped he would fall back to the advanced stage of the disease which, given its incurable nature, would entail a direct threat to life. A report on local conditions in Togo indicated that, while the treatment was available there, a person who did not have health insurance would hardly be able to afford it if relatives were unable to provide financial support. The application that his removal to Togo would violate article 3 was found to be manifestly ill-founded. The court recalled its statement of principle in D v United Kingdom that aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. The circumstances in D were described as very exceptional. Its examination of the case was then directed to the applicant's present medical condition, following SCC v Sweden, Henao v The Netherlands and Ndangoya v Sweden. The medical opinions which described his present condition and the prospects if the therapy were to be stopped were noted. But the court said, as it had done in Ndangoya's case, that it found no indication that the applicant had reached the stage of full-blown AIDS or that he was suffering from any HIV-related illness and it noted that adequate treatment was available in Togo, albeit at a possibly considerable cost. The reasons for the decision were summed up in the same words as those which the court used in Henao v The Netherlands.

    48.  The conclusion that I would draw from this line of authority is that Strasbourg has adhered throughout to two basic principles. On the one hand, the fundamental nature of the article 3 guarantees applies irrespective of the reprehensible conduct of the applicant. It makes no difference however criminal his acts may have been or however great a risk he may present to the public if he were to remain in the expelling state's territory. On the other hand, aliens who are subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance provided by the expelling state. For an exception to be made where expulsion is resisted on medical grounds the circumstances must be exceptional. In May 2000 Mr Lorezen, a judge of the Strasbourg court, observed at a colloquy in Strasbourg that it was difficult to determine what was meant by "very exceptional circumstances". But subsequent cases have shown that D v United Kingdom is taken as the paradigm case as to what is meant by this formula. The question on which the court has to concentrate is whether the present state of the applicant's health is such that, on humanitarian grounds, he ought not to be expelled unless it can shown that the medical and social facilities that he so obviously needs are actually available to him in the receiving state. The only cases where this test has been found to be satisfied are D v United Kingdom, where the fatal illness had reached a critical stage, and BB v France where the infection had already reached an advanced stage necessitating repeated stays in hospital and the care facilities in the receiving country were precarious. I respectfully agree with Laws LJ's observation in the Court of Appeal, para 39, that the Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D v United Kingdom represents.

    49.  It may be said that the court has not really faced up to the consequences of the developments in medical techniques since the cases of D v United Kingdom and BB v France were decided. The position today is that HIV infections can be controlled effectively and indefinitely by the administration of antiretroviral drugs. In almost all the cases where this treatment is being delivered successfully it will be found that at present the patient is in good health. But in almost all these cases stopping the treatment will lead in a very short time to a revival of all the symptoms from which the patient was originally suffering and to an early death. The antiretroviral treatment can be likened to a life support machine. Although the effects of terminating the treatment are not so immediate, in the longer term they are just as fatal. It appears to be somewhat disingenuous for the court to concentrate on the applicant's state of health which, on a true analysis of the facts, is due entirely to the treatment whose continuation is so much at risk.

 
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