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

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    50.  But it cannot be said that the court is unaware of the advances of medical science in this field. All the recent cases since SCC v Sweden have demonstrated this feature. The fact that the court appears to have been unmoved by them is due, I think, to its adherence to the principle 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 way this principle was referred to and then applied in Amegnigan v The Netherlands ("the court recalls that in D v United Kingdom it emphasised [the principle]") is, in my opinion, highly significant. What the court is in effect saying is that the fact that the treatment may be beyond the reach of the applicant in the receiving state is not to be treated as an exceptional circumstance. It might be different if it could be said that it was not available there at all and that the applicant was exposed to an inevitable risk due to its complete absence. But that is increasingly unlikely to be the case in view of the amount of medical aid that is now reaching countries in the third world, especially those in Sub-Saharan Africa. For the circumstances to be, as it was put in Amegnigan v The Netherlands, "very exceptional" it would need to be shown that the applicant's medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying. This is, in effect, the same test as that which my noble and learned friend Baroness Hale of Richmond has identified.

The facts in this case

    51.  The appellant's disease had reached an advanced stage by November 1998 when the antiretroviral treatment was prescribed for her. Her CD4 count at presentation was just 10 cells/mm3, indicating severe damage to her immune system, and she was suffering from various AIDS defining illnesses. But as a result of the treatment her condition has now stabilised. So long as she continues to take the treatment she will remain healthy and she will have several decades of good health to look forward to. Her present condition cannot be said to be critical. She is fit to travel, and will remain fit if and so long as she can obtain the treatment that she needs when she returns to Uganda. The evidence is that the treatment that she needs is available there, albeit at considerable cost. She also still has relatives there, although her position is that none of them would be willing and able to accommodate and take care of her. In my opinion her case falls into the same category as SCC v Sweden, Henao v The Netherlands, Ndangoya v Sweden and Amegnigan v The Netherlands, where the court has consistently held that the test of exceptional circumstances has not been satisfied. In my opinion the court's jurisprudence leads inevitably to the conclusion that her removal to Uganda would not violate the guarantees in article 3 of the Convention.

    52.  The corollary of what I have just said is that a decision that her appeal should nevertheless be allowed would amount to an extension of the exceptional category of case which is represented by D v United Kingdom. As I said at the start of this opinion, it is not open to the national court to extend the scope of the Convention in this way. If an extension is needed to keep pace with medical developments, this must be left to the Strasbourg court.

    53.  It must be borne in mind too that the effect of any extension would be to widen still further the gap that already exists between the scope of articles 32 and 33 of the Refugee Convention and the reach of article 3 of the Human Rights Convention to which the Strasbourg court referred in Chahal v United Kingdom (1996) 23 EHRR 438, para 80. It would have the effect of affording all those in the appellant's condition a right of asylum in this country until such time as the standard of medical facilities available in their home countries for the treatment of HIV/AIDS had reached that which is available in Europe. It would risk drawing into the United Kingdom large numbers of people already suffering from HIV in the hope that they too could remain here indefinitely so that they could take the benefit of the medical resources that are available in this country. This would result in a very great and no doubt unquantifiable commitment of resources which it is, to say the least, highly questionable the states parties to the Convention would ever have agreed to. The better course, one might have thought, would be for states to continue to concentrate their efforts on the steps which are currently being taken, with the assistance of the drugs companies, to make the necessary medical care universally and freely available in the countries of the third world which are still suffering so much from the relentless scourge of HIV/AIDS.

Conclusion

    54.  I agree with my noble and learned friend Lord Brown of Eaton-under-Heywood that the temptation to remit this case for further consideration of the facts should be resisted. I would dismiss the appeal.

LORD WALKER OF GESTINGTHORPE

My Lords,

    55.  I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood. I am in full agreement with them. This is a very sad case but it is, unfortunately, not exceptional. I too would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

    56.  The appellant is HIV positive and as a result has contracted a number of serious diseases. These have been successfully treated but of course she remains HIV positive. Her immune system is seriously and permanently compromised. These days sophisticated drug treatment can restore her ability to withstand infection. With it, she is currently well and can expect to remain so for decades. Without it, if she is exposed to infections, she can expect that they will take hold and, unless treated, kill her within a period of at most two years.

    57.  The appellant has no right to remain in this country. She has been refused refugee status. Yet she has been seriously ill-treated. The adjudicator accepted that she was kidnapped by the Lords Resistance Army (LRA) in Uganda, that she was held by them against her will between 1996 and 1998, and that she was then captured by the National Resistance Movement (NRM), an official part of the Ugandan security forces, by whom she was ill-treated and raped. She came to this country to escape from those who had harassed and ill-treated her. She did not know then that she was suffering from a life-threatening illness and she did not come here to obtain medical treatment. But she was not entitled to refugee status because the acts of which she complained were not committed or condoned by the Ugandan authorities. The adjudicator found that the LRA was a terrorist organisation, so that it was reasonable to interrogate her to find out whether she was a member, and that the "ill-treatment and rape she suffered at the hands of the NRM were in my view the acts of rogue elements in the security force". They were not acts of the Ugandan state, nor would she be in danger of persecution if she were returned to Uganda now.

    58.  I mention all this because many might think that women who have been kidnapped by a terrorist organisation and then raped by members of the state security forces have a powerful claim on the protection of the state to which they flee. I have explained in another case (In re B [2005] UKHL 19, paras 27 to 39) how the jurisprudence under the Refugee Convention is developing to recognise that rape is not simply an expression of individual aggression or desire but may be used as a systematic weapon of persecution or war. Regime changes may be less effective in protecting women from such dangers than they are for men. But no-one has challenged the adjudicator's decision on her asylum claim. The history does however reveal that she is not a would-be immigrant who came here to benefit from our superior medical services.

    59.  However, the strength of her claim under Article 3 does not depend upon the history, no matter how deserving or undeserving of our compassion, but upon her present situation and her immediate or very near future. The issue is when it is permissible to expel a person who is suffering from an illness which can be treated here but whose prospects of receiving such treatment in her home country do not look good. How are we to distinguish between the sad cases where we must harden our hearts and the even sadder cases where to do so would be inhumane? In short, what is the test?

    60.  Article 3 of the European Convention of Human Rights is in absolute terms:

    "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

    The test applied by the adjudicator was that set out in paragraph 2.1 of the Asylum Directorate's 1998 Instructions on the Grant of Exceptional Leave to Remain, which was obviously drawn from the decision of the European Court of Human Rights in D v United Kingdom (1997) 24 EHRR 423:

    "Where there is credible medical evidence that return, due to the medical facilities in the country concerned, would reduce the applicant's life expectancy and subject him to acute physical and mental suffering, in circumstances where the UK can be regarded as having assumed responsibility for his care."

    The adjudicator had no doubt that all the requirements of that paragraph had been met in this case and that returning her to Uganda would be a breach of her Article 3 rights.

    61.  If the test set out in those instructions were correct, the adjudicator's decision on the facts of this case could not be challenged. But the Secretary of State, who had not appeared at the hearing before the adjudicator, argued on appeal for a more stringent test, based on the complete absence of medical treatment in the country concerned. The reasoning in the IAT focussed almost entirely on the availability of treatment in Uganda. They allowed the Secretary of State's appeal because there was some medical treatment available, although at a lower level and lagging behind advances made in highly developed countries. The majority in the Court of Appeal found the Tribunal's reasoning insufficient but dismissed the appeal because a claim of this sort must be based on facts "which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one's sympathy on pressing grounds": [2003] EWCA Civ 1369, per Laws LJ at para 40.

    62.  So what is the test to be derived from the decision in D v United Kingdom (1997) 24 EHRR 423 and the cases which followed? In D the court first acknowledged that article 3 had in the past been applied only to expulsions where the risk of ill-treatment "emanates from the intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection"; it "reserved to itself sufficient flexibility" to address the application of article 3 in other contexts; but it emphasised that in such other contexts it must subject all the circumstances to the most rigorous scrutiny, "especially the applicant's personal situation in the expelling State" (para 49). The Court therefore set out to determine whether there was a real risk that the applicant's removal would be contrary to the standards in Article 3 "in view of his present medical condition" (para 50). In doing so, it noted that the applicant was "in the advanced states of a terminal and incurable illness" (para 51); that his illness had reached a "critical stage" (para 53); that the abrupt withdrawal of his present treatment facilities "will entail the most dramatic consequences for him", would "reduce his already limited life expectancy" and "subject him to acute mental and physical suffering" (para 52); and that the United Kingdom had assumed responsibility for treating his condition for some years (para 53). It emphasised that "aliens who . . . 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 . . . " (para 54). However "in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake" implementation of the decision to remove him would be a violation of Article 3 (para 54).

    63.  It appears, therefore, that the test in the Asylum Directorate's instructions was already too generous. It did not stress how exceptional the circumstances must be, that the question was whether removal would be contrary to Article 3 "in view of his present medical condition", that the disease must have reached an advanced or critical stage, or that after being looked after for some years in this country, the applicant would be sent back to meet his fate without medical, social or family support. Perhaps that is not surprising, as D was a ground-breaking case and it has taken the Commission and Court of Human Rights some time to achieve a consistent approach.

    64.  My noble and learned friends, Lord Hope of Craighead and Lord Brown-of-Eaton under Heywood, have reviewed the Strasbourg jurisprudence in the HIV/AIDS cases in some detail. This shows that, following D v United Kingdom, only two further cases have been found admissible. In BB v France, 9 March 1998, the Commission found a breach and a friendly settlement was later reached, so that the Court was not called upon to consider the case (see judgment of 7 September 1998). In that case, the Commission's focus did appear to be more on conditions in the receiving country than on the severity of the applicant's present condition: "the Commission considers that exposing a person to a real and substantiated risk to his health which is so serious as to amount to a violation of Article 3 on account of other factors in the receiving country, such as the lack of medical care and services, as well as social and environmental factors, are [sic] capable of engaging the responsibility of the State intending to expel the person" (para 54). However, it is clear that the applicant's illness had by then reached an advanced stage requiring frequent hospital admissions. In Tatete v Switzerland, 18 November 1999, the Commission held that there were complicated questions of fact and law, so that the application could not be said to be manifestly ill founded, and once again a friendly settlement was later reached. Neither case was as extreme as D, although the applicant in BB was already very ill.

    65.  All the other cases have been found inadmissible: see Karara v Finland, Application No 40900/98, 29 May 1998; MM v Switzerland, Application No 43348/98, 14 September 1998, SCC v Sweden, Application No 46553/99, 15 February 2000, Henao v The Netherlands, Application No 13669/03, 24 June 2003, Ndangoya v Sweden, 22 June 2004, and Amegnigan v The Netherlands, Application No 25629/04, 25 November 2004. In all of these the Commission or Court has asked itself whether the expulsion "would be contrary to the standards of Article 3 in view of [the applicant's] present medical condition". Their findings in Henao v The Netherlands (at p 8) are typical:

    ". . . 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."

    Also typical is the statement of principle in Henao (at pp 7-8):

    "According to established case-law aliens who are subject to expulsion cannot in principle 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. However, in exceptional circumstances an implementation of a decision to remove an alien may, owing to compelling humanitarian considerations, result in a violation of Article 3."

    66.   In the most recent of these cases, Amegnigan v The Netherlands, 25 November 2004, the Court was faced with evidence that "as soon as the anti-HIV therapy was stopped, the applicant would fall back to the advanced stage of the disease which, given its incurable nature, would entail a direct threat for life" (p 4) but that "the HIV virus would be suppressed as long the applicant would continue taking medication, so that there was no direct threat for life" (p 5). It nevertheless concluded that, unlike the situation in D, "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 Togo where his mother and a young brother are residing. The fact that the applicant's circumstances in Togo 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." To this extent, therefore, the Court has confronted the problem that in this country HIV is a long term but treatable illness whereas in sub-Saharan Africa for all but the tiny minority who can secure treatment it is a death sentence.

    67.  The notion of compelling humanitarian considerations was invoked by Laws LJ in this case, at para 40:

    " . . . I would hold that the application of article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised state."

    I do not find that concept at all helpful. The humanitarian appeal of this case is very powerful indeed. None of us wishes to send a young woman, who has already suffered so much but is now well cared for and with a future ahead of her, home to the likelihood of an early death in a much less favourable environment. But sadly her circumstances are not exceptional. There are millions of people in the world who are HIV positive, many of them in sub-Saharan Africa; thousands of people arrive in this country every year without leave to enter or remain but are for one reason or another able to stay here for some considerable time during which they will usually receive the medical care they need; the anti-retroviral therapy now available here can, for as long as it continues, restore the compromised immune system to such an extent that life expectancy is greatly enhanced; for the fortunate few that or at least some therapy may be available in their home countries, but for most it will remain only a theoretical possibility for many years to come. If, as Laws LJ went on to say, the facts must be not only exceptional but extreme, she would not qualify.

    68.  In common with Dyson LJ, I have found helpful the concurring opinion of Judge Pettiti in D v United Kingdom, p 455:

    "The inequality of medical treatment was not the criterion adopted by the Court as medical equipment in the Member States of the United Nations is, alas, not all of the same technological standard; the case of D, however, is concerned not with hospital treatment in general, but only with the deportation of a patient in the final stages of an incurable disease."

    As Lord Hope's analysis shows, the later cases have made it clear that it is the patient's present medical condition which is the crucial factor. The difficulty is in understanding where conditions in the receiving country fit into the analysis. Even in those cases where the illness is not in an advanced or terminal stage, the Court does refer to the medical care and family support available there. But it does so in terms of there being "no prospect" of such care or support, rather than in terms of its being likely to be available. It is difficult to see, therefore, whether this consideration adds anything in those cases. Where the illness is in an advanced or terminal stage, then conditions in the receiving country should be crucial. It is not yet clear whether the applicant has to show that appropriate care and support during those final stages was unlikely to be available or whether again the "no prospect" test applies. That was undoubtedly the situation in D v United Kingdom and the Court has made it clear that the "compelling humanitarian considerations" are those which arise in a case where the facts come close to those in D. But if it is indeed the case that this class of case is limited to those where the applicant is in the advanced stages of a life-threatening illness, it would appear inhuman to send him home to die unless the conditions there will be such that he can do so with dignity. As the European Court said in Pretty v United Kingdom (2002) 35 EHRR 1, para 65, "The very essence of the Convention is respect for human dignity and human freedom."

    69.  In my view, therefore, the test, in this sort of case, is whether the applicant's illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the text prepared by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case.

    70.  There may, of course, be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling. The law must be sufficiently flexible to accommodate them. The European Court of Human Rights took very seriously the claim of the schizophrenic patient in Bensaid v United Kingdom (2001) 33 EHRR 205 who risked relapse into hallucinations and psychotic delusions involving self harm and harm to others if deprived of appropriate medication. But it nevertheless concluded at para 40:

    "Having regard however to the high threshold set by article 3, particularly when 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."

    71.  For these reasons I conclude that we would be implying far more into our obligations under Article 3 than is warranted by the Strasbourg jurisprudence, if we were to allow the appeal in this case, much though I would like to be able to do so.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    72.  There are an estimated 25 million people living with HIV in Sub-Saharan Africa (July 2004 UNAIDS report), many more million AIDS sufferers the world over. The prospects for the great majority are bleak indeed. For those few who reach these shores, however, the prospects are immeasurably improved. From the moment of their arrival, throughout the duration of their stay in the United Kingdom, they are entitled to all the care and treatment which the National Health Service and support agencies provide. Their health is likely to improve; illnesses will be kept at bay; their life expectancy will be greatly increased.

    73.  This appellant, a Ugandan national, is a case in point. Seven years ago, then aged 23, she arrived on a flight from Entebbe and the following day, seriously ill, was admitted to Guy's Hospital where she was diagnosed HIV positive with severe damage to the immune system (a CD4 count of ten) and disseminated TB. Following a long initial stay in hospital she developed a second AIDS defining illness, Kaposi's sarcoma, a particularly aggressive form of cancer. She was readmitted to hospital and started a prolonged course of chemotherapy. By 2002, after some years of treatment with anti-retroviral drugs and many setbacks, her CD count had risen to 414 and she was well. In October 2002, the date of the latest medical evidence in the case, she was described by Dr Meadway as "stable and free of any significant illness" and, were she to remain in the UK, "likely to remain well for decades." Were she, however, to be returned to Uganda, her prospects would deteriorate dramatically. In this event it was Dr Meadway's view that:

    "the formulation of anti-retroviral drugs Ms N is currently taking are not available in Uganda. Ms N's HIV virus already has some resistance and in the future she will require a change of anti-retrovirals which is likely to include other drugs not available in Uganda. If she returns to Uganda although anti-retrovirals are available in parts of the country she would not have the full treatment required and would suffer ill-health, pain, discomfort and an early death as a result."

    By "an early death" it appears that Dr Meadway was suggesting death within a year or at most two. Dr Larbalestier, a Consultant Physician at Guy's, also reporting in October 2002, said:

    "I have no doubt at all that if she is forced to return to Uganda her life span will be dramatically shortened from potentially decades of high quality life to almost certainly less than 2 years."

    74.  It is in these circumstances that the present appeal arises. The appellant has been refused leave to enter the UK. Her asylum claim has been rejected both by the Secretary of State and on appeal. The Secretary of State now proposes to deport her. The issue for your Lordships' decision could hardly be starker: is he entitled to do so or would he thereby be acting contrary to article 3 of the European Convention on Human Rights? The Court of Appeal by a majority (Laws and Dyson LJJ) held that, even taking the evidence in the case at its highest in favour of the appellant, her article 3 claim to remain in the United Kingdom could not properly succeed. That being so, it would be wrong to remit the matter to the IAT for re-determination despite their decision (allowing the Secretary of State's appeal from the adjudicator's prior determination in the appellant's favour) being flawed for want of sufficient reasons. Carnwath LJ, dissenting, thought the matter less clear-cut and for his part would have remitted the case for re-determination by the IAT, although emphasising that this "would be no indication that it would ultimately be successful."

    75.  Essentially three conclusions are open to your Lordships. First, that on the bare facts already outlined the article 3 claim here succeeds; second, that on these bare facts it fails; third, that the outcome should properly turn on a more detailed consideration of the facts, taking particular account for example of the length of time during which the appellant has been undergoing treatment in the UK, the circumstances which prompted her to leave Uganda in the first place, the precise level, cost and accessibility of treatment available to her on return, and the social and human support available to her respectively here and in Uganda.

 
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