COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE CARNWATH
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPT
Ms L Giovannetti (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
Ms F Webber (Intervenor) (instructed by The Terrence Higgins Trust)
Crown Copyright ©
Lord Justice Laws:
"From an HIV point of view, 'M' is extremely advanced. Her CD4 count at presentation was just 20 cells/mm3, reflecting considerable immunosuppression. Her viral load was around 50,000 copies/ml at baseline. Anti-retroviral therapy has been problematic, with recurrent episodes of abnormal liver function, associated with fever, but she has recently tolerated a combination of stavudine, nevirapine and lamivudine.
Without active treatment 'M's' prognosis is appalling. I would anticipate her life expectancy to be under twelve months if she were forced to return to Uganda, where there is no prospect of her getting adequate therapy.
From a mental health point of view, 'M' is now stable…"
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
"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 reaching that conclusion the Adjudicator referred to three reports prepared by Dr Jeanette Meadway, which he found to be "particularly impressive", and saw "no reason why [he] should not accept the opinions of Dr Meadway in their entirety". Dr Meadway is the Medical Director Mildmay Hospital UK.
"In my view the appellant's case for protection under Article 3 is, on the evidence, overwhelming. As I have indicated above the appellant asked me to take into account the case of D v United Kingdom where it was held in the circumstances of that case that to implement a decision by the respondent to remove the appellant to the West Indies would be a violation of his rights under Article 3. There is no need for me to recite the facts in that case, but I can see no difference in principle between the case cited and the present case. Moreover the stated policy of the Home Office in relation to these matters clearly reflects the ratio in D's case… In paragraph 2.1 [of the Asylum Directorate Instructions issued in July 1998] it is stated that exceptional leave to remain in or enter the UK must be granted to asylum applicants if they fall under the following criteria, namely:
'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. In cases of doubt, a second opinion should be sought from a credible source'.
I have no doubt that all the requirements of this paragraph have been met in this case. Accordingly I find that the implementation of the respondent's decision to return the appellant to Uganda would be a breach of her Article 3 rights."
12. D v UK (1997) 24 EHRR 423 is a decision of the European Court of Human Rights given in Strasbourg in 1997. It will be necessary to pay close attention to the court's reasoning in that case, upon which Mr Scannell places great reliance. I shall return to it in due course.
EVIDENCE BEFORE THE IAT
"1 Ms N is alive only because she is taking anti-retroviral therapy for HIV. If she returned to Uganda although antiretrovirals 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.
2 If she remains in the UK Ms N is likely to remain well for decades.
3 The formulation of antiretroviral drugs Ms N is currently taking are not available in Uganda.
4 Ms N's HIV virus already has some resistance and in the future she will require a change of antiretrovirals which is likely to include other drugs not available in Uganda.
5 To return a healthy person requiring no medication to Uganda where there is no extensive health care might be acceptable. To return Ms N to Uganda where she would have suffering and an early death would constitute inhuman and degrading treatment."
D v UK
"49 It is true that this principle [that is, the absolute nature of the Article 3 prohibition] has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from 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….
Aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinizing an applicant's claim under Article 3 where the source of the risk of 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. To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection. In any such contexts, however, the Court must subject all the circumstances surrounding the case to a rigorous scrutiny, especially the applicant's personal situation in the expelling state.
51 The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital… The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers…
52 The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts…
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.
The Court also notes in this respect that the 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…
54… [I]n 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."
I v SECRETARY OF STATE; K v SECRETARY OF STATE
"9… [W]e have been referred to the case of I …, where this court was asked to prevent a lady and her daughter from being sent back to Uganda on the ground that they were both HIV positive. It was held:
'1 Albeit appropriate medical facilities in Uganda were inferior to those in the United Kingdom, they were available and not only in the capital. It was not unreasonable for the Secretary of State, in those circumstances, to require the applicants to return to Uganda: obiter the position might be different if there were no appropriate medical facilities at all.
2 That the applicant's lifespan and that of her daughter might (but not necessarily would) be reduced was not a reason for her not returning to Uganda.
3 The position of the applicant and her daughter was no different from many in Uganda, and there were not exceptional circumstances in the case.
4 To require her to return to Uganda was not contrary to Article 3 of the European Convention.'
10 There was no question canvassed in that case about the cost of medical treatment in Uganda. In the present case there is a good deal of evidence on this topic but eventually it is now agreed… that medical facilities are available in Uganda. The problem is their cost. It is said that they would not be within the reach of Mr K.
11 What it comes to is this. Would it be inhuman or degrading treatment to send Mr K back to Uganda on the grounds that he may or may not be able to afford all the treatment that he requires? It does seem to me that, if we were to accede to that argument, we would be in effect adopting a rule that any country which did not have a health service which was available free to all people within it bounds, would be a place to which it would be inhuman and degrading to send someone. I do not consider that the European Court of Human Rights would reach that conclusion. It seems to me that one has to weight up all the circumstances of the case, as was done in the case of D and decide whether that test is fulfilled. In those circumstances, I am unable to say that the Secretary of State's decision was illegal or irrational or procedurally improper or ought to be revisited by the courts. I would dismiss the application."
"47 Expert medical experience shows that regular monitoring and delicate adjustment of drugs is likely to be needed to meet changes in drug resistance. When such changes are likely to occur and the specific drug therapy required will not be known until changes occur, and accordingly must be a matter for speculation. The Tribunal is all too mindful of the scenario suggested by the doctors of a dramatic reduction in her life expectancy.
49 The Tribunal finds that the general approach to be found in the cases of I v United Kingdom (albeit a case which in immigration terms is of relative antiquity) and K v United Kingdom (albeit specifically directed at cost) is correct. Medical treatment is available in Uganda for the respondent's condition, even though the Tribunal accepts 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 respondent's specific and varying needs became known that her needs could be assessed and the then availability of appropriate treatment decided.
50 D was an extreme case. The facts in the present case are quite different both as regard to the availability of treatment and, we find, the availability of some family structure.
51 Accordingly, we find that for the respondent to be returned to Uganda would not be a breach of Article 3."
THE DECISIVE ISSUE IDENTIFIED
ULLAH v SPECIAL ADJUDICATOR; SOERING v UK
"21 We do not believe that the signatories to the Human Rights Convention conceived that it would impact on their rights under international law to refuse entry to or to remove aliens from their territory.
22 Our belief receives support from the terms of the Human Rights Convention itself. The right of immigration control is recognised by article 5(1)(f), which qualifies the right to liberty by permitting arrest or detention of a person "to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition". Nowhere else in the qualifications to those Convention rights which are not absolute is there any reference to the right of a state to control immigration. We do not believe that this was because this right would, or would arguably, be covered by express limitations, such as 'the interests of national security, public safety or the economic well-being of the country', which justify derogation from article 8 rights. We believe that it was because the contracting states had no intention of restricting their rights of immigration control. The Convention was not designed to impact on the rights of states to refuse entry to aliens or to remove them. The Convention was designed to govern the treatment of those living within the territorial jurisdiction of the contracting states.
23 The Convention is, however, a living instrument. If, initially, it was not designed to impact on the right to control immigration it has, to a degree, been interpreted by the European Court of Human Rights… in a manner which does have that effect. The task of identifying the principles which govern the application of the Convention in this context is not an easy one.
24 In cases involving expulsion or refusal of entry the Strasbourg court has repeatedly emphasised the following principle: 'contracting states have the right, as a matter of well established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens': see, for instance, Bensaid v United Kingdom (2001) 33 EHRR 205, 216, para 32. As we consider the authorities, it will become apparent that the Strasbourg court does not consider that the Convention will be engaged simply because the effect of the exercise of immigration control will be to remove an individual to a country where the Convention rights are not fully respected. Equally, where the Strasbourg court finds that removal or refusal of entry engages the Convention, the court will often treat the right to control immigration as one that outweighs, or trumps, the Convention right."
"88. Article 3 makes no provision for exceptions and no derogation from it is permissible under article 15 in time of war or other national emergency. This absolute prohibition on torture and on inhuman or degrading treatment or punishment under the terms of the Convention shows that article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe. It is also to be found in similar terms in other international instruments such as the 1966 International Covenant on Civil and Political Rights and the 1969 American Convention on Human Rights and is generally recognised as an internationally accepted standard. The question remains whether the extradition of a fugitive to another state where he would be subjected or be likely to be subjected to torture or to inhuman or degrading treatment or punishment would itself engage the responsibility of a contracting state under article 3 ... It would hardly be compatible with the underlying values of the Convention, that 'common heritage of political traditions, ideals, freedom and the rule of law' to which the preamble refers, were a contracting state knowingly to surrender a fugitive to another state where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of article 3, would plainly be contrary to the spirit and intendment of the article, and in the court's view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving state by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that article.
91. In sum, the decision by a contracting state to extradite a fugitive may give rise to an issue under article 3, and hence engage the responsibility of that state under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country…"
"38 … In Tyrer v United Kingdom (1978) 2 EHRR 1 the Strasbourg court held that three strokes with a birch constituted degrading punishment for a 15-year-old boy, which violated article 3 having regard to the particular circumstances in which it was administered. We find it hard to accept that the risk of such treatment could suffice to override the right of a state to deport an alien guilty of a serious crime. It seems to us that the Strasbourg court had reason in Soering… for concluding that the interest in an effective system of extradition was a relevant factor when considering the severity of ill-treatment in the receiving state that would preclude the extradition of a suspected criminal.
39 As we read Soering… and Chahal…, the underlying rationale for the application of the Convention to the act of expulsion is that it is an affront to fundamental humanitarian principles to remove an individual to a country where there is a real risk of serious ill-treatment, even though such ill-treatment may not satisfy the criteria of persecution under the Refugee Convention. Article 3 provides the test of such treatment. The issue then arises of whether this rationale extends to preventing removal of aliens where there is a real risk that the receiving country will treat them in a way that infringes other articles, and in particular article 9."
The court proceeded to discuss certain Strasbourg authority relating to the ECHR Article 8 (including Bensaid (2001) 33 EHRR 205 to which I will have to return), and a number of cases decided here, and held that neither the Human Rights Act (paragraph 47) nor domestic authority (paragraph 58) required that "extra-territorial" effect be given to Article 9. The court concluded as follows:
"62 Mr Blake… submitted… that this court should take the lead in recognising that removal in the interests of immigration control can engage article 9. In our judgment there are compelling reasons why this court should not do so. The Refugee Convention and article 3 of the Human Rights Convention already cater for the more severe categories of ill-treatment on the ground of religion. The extension of grounds for asylum that Mr Blake and Mr Gill seek to establish would open the door to claims to enter this country by a potentially very large new category of asylum seeker. It is not for the court to take such a step. It is for the executive, or for Parliament, to decide whether to offer refuge in this country to persons who are not in a position to claim this under the Refugee Convention, or the Human Rights Convention as currently applied by the Strasbourg court. There may be strong humanitarian grounds for offering refuge in this country to individuals whose human rights are not respected in their own country, and it is open to the Secretary of State to grant exceptional leave to remain where he concludes that the facts justify this course. There are, however, practical and political considerations which weigh against any general extension of the grounds upon which refuge may be sought in this country. It is not for the courts to make that extension.
63 For these reasons we hold that a removal decision to a country that does not respect article 9 rights will not infringe the 1998 Act where the nature of the interference with the right to practise religion that is anticipated in the receiving state falls short of article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practise religion in such circumstances will not result in the engagement of the Convention unless the interference is 'flagrant'."
a) ECHR was not intended by its signatories to constrain "their rights under international law to refuse entry to or to remove aliens from their territory" (paragraph 21).
b) But that position has been qualified over time, ECHR being a "living instrument" (paragraph 23).
c) Notably, it was qualified in relation to Article 3 by Soering, which vouchsafed a significant extension of the Convention's scope (paragraph 29, which I have not set out); but the extension is justified by the "affront to fundamental humanitarian principles" involved in removing someone to a country where there is a real risk of serious ill-treatment, and Article 3 provides the test of such treatment (paragraph 39).
d) If a like extension of other Convention rights would open the door to "a potentially very large new category of asylum seeker", it is a step to be taken, if at all, by Parliament or the executive (paragraph 62, whose context, of course, was Article 9 only).
OTHER STRASBOURG CASES
"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… 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."
It is right that I should notice the separate opinion of Judge Sir Nicolas Bratza who, while concurring with the majority judgment in the result, expressed himself guardedly (paragraph 0-16):
"As is pointed out in the Court's judgment, the present case does not disclose the same exceptional circumstances of the D case, the risk that the applicant would if returned to Algeria suffer treatment reaching the threshold of Article 3 being less certain and more speculative than in that case. For this reason, I have on balance arrived at a different conclusion from that reached by the court in D."
"… the Court considers that, unlike the situation in… D… or BB…, 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 Colombia would be less favourable than those he enjoys in the Netherlands cannot be regarded as decisive from the point of view of Article 3…"
"… the decision by a contracting state to extradite a fugitive may give rise to an issue under article 3… where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country."
I would refer also to paragraph 104, which I need not set out. Then Ullah, at paragraph 39:
"… the underlying rationale… is that it is an affront to fundamental humanitarian principles to remove an individual to a country where there is a real risk of serious ill-treatment… Article 3 provides the test of such treatment."
But this condition, that what might befall the applicant if returned to his home country would violate the Article 3 standard, is expressly disavowed in D. I repeat these passages from of the judgment:
"49… [the court] is not… prevented from scrutinizing an applicant's claim under Article 3 where the source of the risk of 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.
53… 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."
"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…and also Bensaid…) "
This court's obligation under s. 2(1) of the Human Rights Act is to "take into account" (rather than follow) the Strasbourg jurisprudence. However despite my reservations I am clear that it would not be right to hold that D should not be followed in our domestic jurisdiction. No such submission was made to us, and we must surely bear in mind in what was said by Lord Slynn of Hadley in R. (Alconbury Developments Ltd) v Secretary of State for the Environment  2 WLR 1389 at paragraph 26:
""In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights."
Lord Justice Dyson :
"Admittedly, in the instant case, the humanitarian considerations arose in exceptional circumstances (the AIDS disease in its final stages).
Accordingly, when the judgment is being read and interpreted, paragraphs 49, 50, 54 and 32 in particular must be looked at together.
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."
Lord Justice Carnwath :
"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…" (para 52)
"The question is whether it would be 'inhuman or degrading treatment' to expel the applicant, and to answer this question one has to weigh up all the circumstances of the case, as was done in the case of D and decide whether that test is fulfilled."
"Although the information about family support is limited, it was clear from enquiries made of the respondent by the Tribunal through counsel that there were some relatives - a brother and nephews and nieces in Uganda - in contrast to the position in D." (para 19).
The response of the applicant's counsel was:
"There was … a lack of social network, no parents, siblings had largely died of AIDS as had two of their husbands, and those siblings had never received treatment. The respondent had, she claimed, no contact with her family in Uganda". (para 29)
The issue was not, as the Tribunal implied, whether those facts were different from those in D -v- UK; but whether the degree of practical support likely to be available to her in Uganda, taken with all the other factors, would render her deportation "inhuman or degrading".