CASE OF N. v. THE UNITED KINGDOM
(Application no. 26565/05)
27 May 2008
This judgment is final but may be subject to editorial revision.
In the case of N. v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Ireneu Cabral Barreto,
Mark Villiger, judges,
and Michael O'Boyle, Deputy Registrar,
Having deliberated in private on 26 September 2007 and on 23 April 2008,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Government
Mr J. Grainger, Agent,
Ms M. Carss-Frisk QC Counsel,
Mr T. Eicke,
Ms C. Adams,
Mr P. Deller,
Ms L. Stowe, Advisers;
(b) for the applicants
Mr D. Pannick QC,
Mr R. Scannell, Counsel,
Mr J. Luqmani, Solicitor.
The Court heard addresses by Ms. Carss-Frisk and Mr Pannick, and also their replies to questions put by Judges Borrego-Borrego and Mijovič.
I. THE CIRCUMSTANCES OF THE CASE
“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. ...”
“Medical treatment is available in Uganda for the [applicant's] condition even though the Tribunal accept that the level of medical provision in Uganda falls below that in the United Kingdom and will continue to lag behind the advance of continuing drug advances which inevitably first become available in highly developed countries. Nonetheless, extensive efforts are being made in Uganda to tackle the AIDS situation – AIDS-treating drugs are available, refined forms of drug are being supplied (albeit with time lags) and it would not be until the [applicant's] specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided.”
“The contrast between the relative well-being accorded in a signatory State to a very sick person who, for a while, even a long while, is accommodated there, and the scarcities and hardships which (without any violation of international law) he would face if he were returned home, is to my mind – even if the contrast is very great – an extremely fragile basis upon which to erect a legal duty upon the State to confer or extend a right to remain in its territory, a duty unsupported by any decision or policy adopted by the democratic arm, executive or legislature, of the State's government. The elaboration of immigration policy ... is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under the ECHR where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the State. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with the facilities available in the host country, is to my mind something else altogether.
...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 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. That does not, I acknowledge, amount to a sharp legal test ... an Article 3 case of this kind 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 ...”
Lord Justice Carnwath, dissenting, was unable to say that the facts of the case were so clear that the only reasonable conclusion was that Article 3 did not apply. Given the stark contrast between the applicant's position in the United Kingdom and the practical certainty of a dramatically reduced life expectancy if returned to Uganda with no effective family support, he would have remitted the case to the fact-finding body in the case, the Immigration Appeal Tribunal.
Lord Nicholls of Birkenhead summarised the applicant's prognosis as follows:
“...In August 1998 [the applicant] developed a second AIDS defining illness, Kaposi's sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10.
As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the [applicant] is now much better. Her CD4 count has risen [from 10] to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for 'decades'. But without these drugs and facilities the prognosis is 'appalling”: she will suffer ill-health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it.
The cruel reality is that if the [applicant] returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine turned off.”
Lord Hope, with whom Lord Nicholls of Birkenhead, Lord Brown of Eaton-under-Heywood and Lord Walker of Gestingthorpe agreed, referred in detail to the Court's case-law (see paragraphs 32-39 below), and held as follows:
“...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. ... 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 ... 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 [be] 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 the United Kingdom ... and B.B. v. France ... [T]he Strasbourg court has been at pains in its decisions to avoid any further extension of the exceptional category of case which D. v the United Kingdom represents.
It may be that the court has not really faced up to the consequences of developments in medical techniques since the cases of D. v. the United Kingdom and B.B. v. France were decided. The position today is that HIV infections can be controlled effectively and indefinitely by the administration of retroviral drugs. In almost all 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, is due entirely to the treatment whose continuation is so much at risk.
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 ... is, in my opinion, highly significant. What the court is in effect saying it 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.
... So long as [the applicant] 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 of Article 3 of the Convention. ...”
Lord Hope concluded by observing:
“[Any extension of the D. principles] would have the effect of affording all those in the [applicant'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.”
Baroness Hale of Richmond, agreeing that the appeal should be dismissed, reviewed the domestic and Convention authorities and phrased the test to be applied as follows:
“...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. ...[The test] is not met on the facts of this case.”
II. MEDICAL TREATMENT FOR HIV AND AIDS IN THE UNITED KINGDOM AND UGANDA
I. ADMISSIBILITY OF THE COMPLAINTS
Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
A. The parties' submissions
1. The Government
2. The applicant
3. The third party
B. The Court's assessment
1. General principles regarding Article 3 and expulsion
2. The Court's case-law in respect of Article 3 and the expulsion of the seriously ill
“[i]n view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant's fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3.
... [T]he respondent State has assumed responsibility for treating the applicant's condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.
Against this background, the Court emphasises that aliens who have served their prison sentences and 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 during their stay in prison.
However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.”
35. In B.B. v. France, no. 30930/96, Reports 1998-VI, the applicant, who had been serving a period of imprisonment in France, was suffering from AIDS with acute immunosuppression. His condition had reached an advanced stage, requiring repeated hospital stays, but had stabilised as a result of antiretroviral treatment which he claimed would not be available to him in his home country, the Democratic Republic of Congo. The Commission in its report on the case had found that it was highly probable that if the applicant 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 to confront his illness alone, without any support from family members, was likely to make it impossible for him to maintain human dignity as the disease ran its course. It concluded that deporting him would amount to a violation of Article 3. The case was referred to the Court, but before it could examine it the French Government gave an undertaking that the applicant would not be deported and the case was therefore struck out of the Court's list.
“In the present case, the applicant is suffering from a long-term mental illness, schizophrenia. He is currently receiving medication, olanzapine, which assists him in managing his symptoms. If he returns to Algeria, this drug will no longer be available to him free as an outpatient. He does not subscribe to any social insurance fund and cannot claim any reimbursement. It is, however, the case that the drug would be available to him if he was admitted as an inpatient and that it would be potentially available on payment as an outpatient. It is also the case that other medication, used in the management of mental illness, is likely to be available. The nearest hospital for providing treatment is at Blida, some 75 to 80 km from the village where his family live.
The difficulties in obtaining medication and the stress inherent in returning to that part of Algeria, where there is violence and active terrorism, would, according to the applicant, seriously endanger his health. Deterioration in his already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (such as withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3.
The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless, medical treatment is available to the applicant in Algeria. The fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention.
The Court finds that the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulty of travelling to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made.
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. The case does not disclose the exceptional circumstances of D. v. the United Kingdom (cited above), where the applicant was in the final stages of a terminal illness, Aids, and had no prospect of medical care or family support on expulsion to St Kitts.”
3. The principles to be drawn from the 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 and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
4. Application of the above principles to the present case
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
FOR THESE REASONS, THE COURT
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 May 2008.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following joint dissenting opinion of Judges Tulkens, Bonello and Spielmann is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES TULKENS, BONELLO AND SPIELMANN
I. Article 3
A. As to the general principles
As the Court emphasised as early as 1997 in the case of H.L.R.,2 concerning potential danger emanating from non-State bodies:
“40. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention (art. 3) may also apply where the danger emanates from persons or groups
of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection.”
Concerning in particular the suffering which flows from naturally occurring illness, physical or mental, the Court has elaborated the so-called 'Pretty threshold'1:
“52. As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court's case-law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom, cited above, p. 66, § 167; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom, no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see D. v. the United Kingdom and Keenan, both cited above, and Bensaid v. the United Kingdom, no. 44599/98, ECHR 2000-I).” (emphasis added)
This principle should therefore equally apply where the harm stems from a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country, if the minimum level of severity, in the given circumstances, is attained. Where a rigorous examination reveals substantial grounds for believing that expulsion will expose the person to a real risk of suffering inhuman or degrading treatment, removal would engage the removing State's responsibility under Article 3 of the Convention.
In Airey v. Ireland the Court held:
“26. The Court is aware that the further realisation of social and economic rights is largely dependent on the situation - notably financial - reigning in the State in question. On the other hand, the Convention must be interpreted in the light of present-day conditions (above-mentioned Marckx judgment, p. 19, para. 41) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals (see paragraph 24 above). Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention.” (emphasis added)
We are minded to draw attention to the incomplete and thus misleading quotation from the Airey judgment made by the majority in paragraph 44 of the judgment, for the sake of clarity and completeness and not because we are of the opinion that this case is about social and economic rights. It is a case about one of the core fundamental civil rights guaranteed under the Convention, namely that of Article 3.
Even though certain “proportionalist errings”, severely criticised in legal writings, existed at one time, particularly in the case-law of the old Commission3, the balancing exercise in the context of Article 3 was clearly rejected by the Court in its recent Saadi v. Italy judgment of 28 February 20081, confirming the Chahal judgment of 15 November 19962, in the following terms:
“130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ...
138. ... Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to (...) expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule ...”3 (emphasis added)
However, the view expressed by the majority that such a finding “would place too great a burden on the Contracting States” (paragraph 44 in fine), reflects the real concern that they had in mind: if the applicant were allowed to remain in the United Kingdom to benefit from the care that her survival requires, then the resources of the State would be overstretched. Such a consideration runs counter to the absolute nature of Article 3 of the Convention and the very nature of the rights guaranteed by the Convention that would be completely negated if their enjoyment were to be restricted on the basis of policy considerations such as budgetary constraints. So does the implicit acceptance by the majority of the allegation that finding a breach of Article 3 in the present case would open up the floodgates to medical immigration and make Europe vulnerable to becoming the “sick-bay” of the world. A glance at the Court's Rule 39 statistics concerning the United Kingdom shows that, when one compares the total number of requests received (and those refused and accepted) as against the number of HIV cases, the so-called “floodgate” argument is totally misconceived.1
B. As to the facts of this case
Paragraph 73 of the House of Lords' judgment reads as follows:
“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 UN, '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.'”
Lord Hope of Craighead:
“20. The decision which your Lordships have been asked to take in this case will have profound consequences for the appellant. The prospects of her surviving for more than a year or two if she is returned to Uganda are bleak. It is highly likely that the advanced medical care which has stabilised her condition by suppressing the HIV virus and would sustain her in good health were she to remain in this country for decades will no longer be available to her. If it is not, her condition is likely to reactivate and to deteriorate rapidly. There is no doubt that if that happens she will face an early death after a period of acute physical and mental suffering ...” (emphasis added)
Baroness Hale of Richmond:
“59. ... The issue is when it is permissible to expel a person who is suffering form an illness which can be treated here but whose prospects of receiving such treatment in her home country do not look good.
67. ... 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 ...” (emphasis added)
Lord Brown of Eaton-under-Heywood:
“73. ... Were [the applicant], however, to be returned to Uganda, her prospects would deteriorate dramatically.” (emphasis added)
“10. ... I accept that [the applicant] came to this country to escape from those who had harassed and ill-treated her. I also find that when she came to this country she did not know that she was suffering from a life-threatening illness and that she did not come here to obtain medical treatment. I find that the condition from which she now suffers is indeed AIDS and that without the sophisticated treatment which she is now receiving she would die within a matter of months. I find that the treatment she needs would not be available to her in Uganda. In making these findings as to her state of health, I take into account and accept the medical evidence contained within the appellant's bundle. There is no need for me to refer to any specific medical report: all the reports are in my view consistent with each other. I do however find the three reports by Dr Jeanette Meadway, medical director of Mildmay Hospital, ... to be particularly impressive. I note that Mildmay Hospital operates at least one hospice in Uganda, and I see no reason why I should not accept the opinions of Dr Meadway in their entirety. One of her conclusions ... is that to compel the appellant to return to Uganda would cause suffering and early death and would amount to inhuman and degrading treatment. I accept this conclusion on the evidence which I have heard and seen.”(emphasis added)
C. As to the potential violation of Article 3
“it is not for [the House of Lords] to search for a solution to [the applicant's] problem which is not to be found in the Strasbourg case law. It is for the Strasbourg court, not for us, to decide whether its case law is out of touch with modern conditions and to determine what further extensions, if any, are needed to the rights guaranteed by the Convention. We must take its case law as we find it, not as we would like it to be.” (emphasis added)1
“53. In the Commission's opinion, a finding that such a risk exists need not necessarily imply that the receiving country or the public authorities there are responsible for it. Given the fundamental importance of Article 3 in the Convention system, the Commission and the Court have already recognised that they were not prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of his or her suffering proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country or which, taken alone, do not in themselves infringe the standards of that Article. It is therefore important to examine the application of Article 3 in the light of all the circumstances which could entail a violation of it (see Eur. Court HR, Ahmed v. Austria judgment of 17 December 1996, Reports 1996-VI, opinion of the Commission, and p. 2207, § 44; H.L.R v. France judgment of 29 April 1997, Reports 1997-III, opinion of the Commission, and p. 792, § 49).
54. Given that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see the Soering judgment, op. cit., p. 34, § 87), 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 capable of engaging the responsibility of the State intending to expel the person (see, inter alia, application no. 23634/94, decision of 19 May 1994, Decisions and Reports 77-A, p. 133; Eur. Court HR, Nasri v. France judgment of 13 July 1995, Series A no. 320-B, opinion of the Commission, p. 36, § 61; and the above-mentioned D. v. the United kingdom judgment, pp. 792-93, §§ 49 et seq.).
55. The Commission is of the view that, if the applicant is deported to his native country, it is highly probable that he will not have access to treatment designed to inhibit the spread of the virus and delay the appearance of opportunistic infections, to which Aids sufferers are extremely vulnerable. The numerous epidemics raging in his country, causing a high degree of mortality, would increase this risk of infection. Furthermore, the Commission considers that, on the facts, expecting the applicant to confront an illness such as advanced Aids alone, without any support from his family, is likely to make it impossible for him to maintain human dignity as the disease runs its – inevitably painful and fatal – course.”1
“In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.”
The majority explained, however, in the following paragraph that it
“[did] not exclude that there [might] be other very exceptional cases where the humanitarian considerations [were] equally compelling.”
II. Article 8
1 D. v. the United Kingdom, judgment of 2 May 1997, Reports of Judgments and Decisions 1997 III.
2 H.L.R. v. France, judgment of 29 April 1997, Reports of Judgments and Decisions 1997 III.
1 Pretty v. the United Kingdom, no. 2346/02, ECHR 2002 III.
1 Airey v. Ireland, judgment of 9 October 1979, Series A no. 32. See most notably, Sidabras and DZiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004 VIII.
2 For an analysis of this judgment and as to the “permeability” of human rights norms see, Virginia Mantouvalou, (2005) 30 European Law Review, 573-585. For an analysis of the moral justification for protection of socio-economic rights, see J. Waldron, “Liberal Rights: Two Sides of the Coin”, in Waldron, Liberal Rights – Collected Papers 1981-1991 (Cambridge: Cambridge University Press), 1993, p. 1 at 4-17, quoted by Mantouvalou, op. cit.
3 S. van Drooghenbroeck, La proportionnalité dans le droit de la Convention européenne des droits de l’homme. Prendre l’idée simple au sérieux, (Brussels : Bruylant, Publications des Facultés universitaires Saint-Louis, 2001), pp. 125 et s.
1 Saadi v. Italy [GC], no. 37201/06, 28 February 2008.
2 Chahal v. the United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996 V.
3 A similar approach has been adopted by Lord Hope in the Limbuela case, concerning destitution, decided by the House of Lords on 5 November 2005 (Regina v. Secretary of State for the Home Department, ex parte Limbuela,  UKHL 66):
“55. So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity. It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied. But it would be wrong to lend any encouragement to the idea that the test is more exacting where the treatment or punishment which would otherwise be found to be inhuman or degrading is the result of what Laws LJ refers to as legitimate government policy. That would be to introduce into the absolute prohibition, by the backdoor, considerations of proportionality. They are relevant when an obligation to do something is implied into the Convention. In that case the obligation of the state is not absolute and unqualified. But proportionality, which gives a margin of appreciation to states, has no part to play when conduct for which it is directly responsible results in inhuman or degrading treatment or punishment. The obligation to refrain from such conduct is absolute.”
Admittedly, Lord Hope’s dictum in Limbuela concerned the question ‘whether the state is properly to be regarded as responsible for the harm’. See the analysis of Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act, (Oxford: Hart Publishing), 2007, at p. 266.
1 June to December 2005
15 requested : 13 refused, 1 accepted (N. v UK itself).
88 requested: 83 refused, 5 accepted (two of these five were HIV cases).
951 requests of which 217 refused, 182 accepted (19 were HIV cases, 14 accepted, 0 refused; in one of the cases, the Rule 39 indication was lifted and the applicant has withdrawn her application because of fresh domestic proceedings).
- 1 January 2007 to 22 April 2008
969 requests of which 174 refused, 176 accepted (19 were HIV cases, 13 accepted and 0 refused).
Those statistics beg the following explanation. The system now records all cases where interim measures are requested, whether a decision is taken by a judge or not. This explains why there is a large disparity between the fact that there are 969 recorded requests for January - April 2008 but only 176 times when Rule 39 has been applied and 174 times when it has been refused. The rest would be either out of scope or not submitted because there were no documents.
For the HIV cases there are a number of explanations which may account for the fact that 19 were registered as HIV cases in each year but only 14 and 13 decisions were taken each year to apply Rule 39. For example, the Government have given undertakings in some cases and in others the applicants may have withdrawn their applications because they have been given leave to remain on other grounds.
1 See the UNAIDS annual report:
1 Compare with Baroness Hale in R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport  UKHL 15 in para : “I do not believe that, when Parliament gave us those novel and important powers, it was giving us the power to leap ahead of Strasbourg in our interpretation of the Convention rights. Nor do I believe that it was expecting us to lag behind. …”
2 See B.B. v. France, judgment of 7 September 1998, Reports of Judgments and Decisions 1998 VI; Karara v. Finland, no. 40900/98, Commission decision of 29 May 1998: illness had not yet reached an advanced stage; S.C.C. v. Sweden (dec.), no 46553/99, 15 February 2000: same type of AIDS treatment as in Sweden was available in Zambia, although at a considerable cost, but the applicant’s children and family members lived there; Bensaid v. the United Kingdom, no. 44599/98, ECHR 2001 I: medical treatment available in Algeria, not receiving support or care to a large extent speculative; Henao v. The Netherlands (dec.), no. 13669/03, 24 June 2003: applicant’s illness had not reached an advanced or terminal stage and he had a prospect of medical care and family support in his country of origin; Ndangoya v. Sweden (dec.), no. 17868/03, 22 June 2004: applicant’s illness had not reached an advanced or terminal stage and adequate treatment was to be found in Tanzania, albeit at considerable cost and with limited availability in the rural area from whence the applicant came, and he maintained some links with relatives who might be able to help him; Amegnigan v. the Netherlands (dec.), no. 25629/04, 25 November 2004: applicant had not reached the stage of full-blown AIDS and was not suffering from any HIV-related illnesses and adequate treatment was in principle available in Togo albeit at a possibly considerable cost. See also the judgment of 6 July 2000 in Tatete v. Switzerland (friendly settlement), no. 41874/98, 6 July 2000, and MM v. Switzerland, no. 43348/98, (dec.) 14 September 1998, unreported.
3 B.B. v. France, judgment of 7 September 1998, Reports of Judgments and Decisions 1998 VI.
1 In his separate opinion, Judge I. Cabral Barreto, then a member of the Commission, even went a step further:
“… where the applicant is obliged to travel to hospital for treatment and needs peace and tranquillity to ‘cope with’ his serious illness, condemning him to remain an illegal alien for the rest of his life constitutes in itself treatment contrary to Article 3 of the Convention.
For my part, I consider that a seriously ill foreigner living in a country as a kind of illegal alien, unable to benefit fully and as of right from the social security regime, is in a situation which fails to meet the requirement of Article 3 of the Convention.
Finally, given the importance of this factor, I consider that it should have been expressly mentioned in the Commission’s report.”
This visionary separate opinion anticipated, more than seven years earlier, the House of Lords’ judgment of 5 November 2005 in Regina v. Secretary of State for the Home Department, ex parte Limbuela,  UKHL 66.
1 Lord Hope emphasised as follows in para  of the House of Lords’ judgment, commenting on D. v. United Kingdom:
“It was the fact that [D.] was already terminally ill while still present in the territory of the expelling state that made his case exceptional”.
A recent and lucid comment, describing the restrictive view of the House of Lords’ judgment in N. reads as follows:
“ …the House of Lords in N concluded that the inference to be drawn from Strasbourg jurisprudence is that it is not necessarily a violation of Article 3 ECHR to return an AIDS patient, unless the facts are on all fours either with those in D v. UK (in other words, if the applicant’s condition is advanced or at terminal stage) or with those in the HIV/AIDS cases that had been found admissible (in other words, if there will be a complete absence of palliative care or family support after deportation).” See Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act, (Oxford: Hart Publishing), 2007, at p. 273.
2 D. v. the United Kingdom, judgment of 2 May 1997, Reports of Judgments and Decisions 1997 III, § 53:
“In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant's fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3.”
1 Or as Baroness Hale rightly put it: “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…” (paragraph  of the House of Lords’ judgment).
2 We would also like to add that all the criteria identified by the Helsinki Foundation for Human Rights in its written comments lodged with the Court on 6 September 2007 are met:
- Continuation of the therapy
If the HIV/AIDS infected person has been officially admitted in the host country to start the antiretroviral therapy, it should be expected he/she has a chance of continuation.
- Medical situation of the HIV/AIDS infected person
If ceasing the therapy causes an almost immediate result (death within a very short time) this factor should be considered as being a compelling factor.
- Availability of medication in the country of origin allowing for the continuation of the therapy in this country
- Possibility for continuing treatment abroad, but on the basis of financial support from the expelling country
In this case all three factors are applicable making it a “very exceptional case”.
1 Facts which concern, after all, what one commentator has considered to be “a life and death issue”. See Ellie Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act, (Oxford: Hart Publishing), 2007, at p. 270.
2 In Bensaid v. the United Kingdom (Bensaid v. the United Kingdom, no. 44599/98, ECHR 2001 I), a case concerning deportation of a schizophrenic to a country where adequate medical treatment was allegedly not available, the Court found a violation of Article 8 of the Convention:
“47. ‘Private life’ is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-I, p. 131, § 36). Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, p. 20, § 45). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.