European Court of Human Rights

3 February 2009

FOURTH SECTION

Application no. 58043/08
by J.N. and Others
against the United Kingdom
lodged on

STATEMENT OF FACTS

THE FACTS

The first applicant, Ms J.N., is a Ugandan national who was born in 1968. The second applicant, Mr K.N., is also a Ugandan national who was was born in 1969 . The third applicant, E.N., is their son. He is a British national who was born in 2004. J.N. and E.N. live in North Shields, North Tyneside; K.N. lives in London.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first and second applicants married in a traditional ceremony in Uganda in 1995. Two children from the marriage live in Uganda and the first applicant has a child from a previous relationship who also lives there. All three children live with the first applicant’s sister and her husband.

The second applicant arrived in the United Kingdom in 1998 via Germany and was granted indefinite leave to remain on 31 January 2003 as part of a regularisation scheme for overstayers. The first applicant arrived in the United Kingdom on 1 February 2003 on a six month visitor’s visa.

In July 2004, E.N., the third applicant, was born to them. The first and second applicants separated in 2006 but maintain that they retain an amicable relationship. They agreed that E.N. would reside with the first applicant, his mother, and that the second applicant would visit regularly.

In 2006 the first and third applicants were receiving social security support from the National Asylum Support Service and, as a condition of that support, were asked to live on Tyneside. The second applicant continues to live and work in London and travels to Tyneside to visit the first and third applicant there every two weeks. The first applicant and E.N. travel regularly to London to visit the second applicant.

The first and second applicants are HIV positive and receive treatment from the United Kingdom National Health Service. E.N. is not HIV positive but is being treated for unexplained collapses, which occur at least once a week and last for several hours.

On 11 July 2003 the first applicant applied for indefinite leave to remain in the United Kingdom on medical grounds. This was not refused by the Secretary of State until 25 September 2007. In her refusal letter the Secretary of State relied on the House of Lords’ judgment in N. v. the Secretary of State for the Home Department [2005] UKHL 31 (see N. v. the United Kingdom [GC], no. 26565/05, § 17, 27 May 2008) and stated that there were no exceptional circumstances in the first applicant’s medical condition. Therefore, Article 3 of the Convention would not prevent her removal from the United Kingdom. For Article 8, the Secretary of State noted the first applicant’s separation from the second applicant and that no evidence had been submitted to show that family life had been maintained between them. Nor had any evidence been submitted which showed the second applicant had been supporting the first applicant or E.N. Treatment would also be available for the second applicant’s HIV condition in Uganda and there were no insurmountable obstacles to prevent him from travelling there. The Secretary of State concluded that the first applicant’s circumstances were not truly exceptional and that removal would not result in a flagrant denial of her right to respect for her family and private life so her removal would not breach Article 8.

The applicant appealed to the Asylum and Immigration Tribunal, arguing that the Secretary of State’s refusal of indefinite leave to remain breached Articles 3 and 8 of the Convention. In dismissing the appeal on 16 November 2007, the Immigration Judge found that the applicants enjoyed a family life in the United Kingdom, albeit at a distance. He did not accept that the first applicant did not know she had HIV when she arrived in the United Kingdom. He also did not accept that she would be unable to live with her sister in Uganda. If she were returned there, it was reasonably likely the second applicant would be able to send her money and she could use this money to buy treatment for HIV. Treatment in Uganda might not be as sophisticated as in the United Kingdom, but it was still available. The Immigration Judge did not accept that if she chose to take E.N. his health would suffer, given that his condition had not been diagnosed. If the first applicant chose not to take E.N. with her, she could apply for entry clearance to the United Kingdom to visit him or E.N. could visit her in Uganda. In considering the relationship between the second applicant and E.N., this would reduce the frequency with which they saw each other, though the second applicant could afford to visit Uganda. Moreover, the Immigration Judge did not accept that the second applicant could not go to Uganda if he did not want to. He had grown up there and would be able to access healthcare and find work there. The consequence of the Secretary of State’s delay in considering the first applicant’s case had been to diminish rather than enhance her family life in the United Kingdom since her relationship with the second applicant was over.

The first applicant sought reconsideration of the Tribunal’s decision. This was refused by a Senior Immigration Judge on 11 December 2007. The applicant then sought judicial review of the decision in the High Court, which, on 14 February 2008, ordered reconsideration of the decision. Mr Justice Holman found that the reasoning of the Immigration Judge did not demonstrate that he had specifically considered the Article 8 rights of E.N. himself, which were necessarily engaged by the removal of his mother.

On 28 May 2008, a differently constituted Tribunal upheld the original decision. The Senior Immigration Judge hearing the case found that the original Immigration Judge had in fact had full regard to E.N.’s position, such as the fact that he could see his siblings in Uganda and that reference had been made to the frequency with which he saw his father and the possibility of each visiting the other. It was not unfounded or speculative to conclude that the second applicant could return to Uganda and find work there. The original Immigration Judge had in mind all relevant considerations including the welfare and best interests of E.N. and the decision was not materially flawed in law.

The first applicant applied to the Court of Appeal for permission to appeal from the Asylum and Immigration Tribunal’s determination. Permission was refused on the papers by Lord Justice Stanley Burnton who agreed with the reasons given by the Senior Immigration Judge. The first applicant renewed her application for permission to appeal, which was refused by Lord Justice Keane at an oral hearing on 14 October 2008. The first applicant had argued that the Senior Immigration Judge also erred in law because he did not separately address E.N.’s Article 8 rights nor did he give separate consideration to the impact of the first applicant’s removal on E.N. It was also argued that the Senior Immigration Judge did not address the effect or impact on E.N. of the degree of separation and reduction in contact which would occur between him and the second applicant if the first applicant chose to take E.N. with her to Uganda. Insufficient regard was also said to have been given to E.N.’s British nationality. Lord Justice Keane found that, when reading the original Immigration Judge’s determination as a whole, he did have fully in mind E.N.’s Article 8 rights and how they would be affected by the removal of the first applicant. The Immigration Judge had dealt with the likely effect on E.N.’s health, his relationship with his father and his experience of family life generally if he were to go to Uganda. The Immigration Judge had taken the proper approach to assessing E.N.’s family life with his father and expressly referred to the Article 8 rights of all members of the first applicant’s family. The fact of E.N.’s citizenship had not been overlooked. There was no realistic prospect of a successful appeal in the case.

COMPLAINT

The applicants complain under Article 8 of the Convention that the removal of the first applicant would be a disproportionate interference with their right to family life as guaranteed by that Article. They argue that the domestic authorities have failed to recognise that if the first applicant is removed, the second applicant would not permit her to take E.N. with her. Furthermore, the second applicant is unable to properly care for E.N. in the United Kingdom and it is unrealistic, given the quality of HIV treatment in Uganda, for him to move to Uganda.

QUESTION TO THE PARTIES