IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE LAWS
SIR MARTIN NOURSE
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
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MS J ANDERSON (instructed by the Treasury Solicitor) appeared on behalf of the Respondent
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"In conclusion then, the appellant does not succeed in her appeal before me on the Article 3 claim under her own right because I have held that the necessary treatment is available to her in Ghana and whether she can pay for it or not is an irrelevant consideration. However, she does succeed in the Article 3 claim before me on the basis of the dangers apparent to her unborn child. Had it not been for her pregnancy and for the imminent birth, she would not have succeeded in this appeal under Article 3 at all. I therefore hold that this is an exceptional case and it is not to be taken as setting any form of precedent."
"12. If she were to be returned to Accra, she said that she will be with two young children (as she was currently pregnant due to have a planned caesarean later on in June). She will not be able to look after them. She would have no money to accommodate herself or the children. She could not disclose that she had the disease to anyone at all. Rather than going back to Ghana, she would prefer to kill herself and the children. She will not be able to get milk or medicine in Ghana. It was therefore better to kill themselves in that respect. The appellant said that in Ghana, if you have a baby, you are given nothing. You breastfeed and the children die. Here in the United Kingdom, the children were given milk without being breastfed."
"47. I note that the appellant's son, K, does not have the symptoms of HIV. Therefore, the medical services in the United Kingdom have been successful in ensuring that he does not contract this virus. However, the appellant is once again pregnant. Her confinement date was sometime in July 2003, however, the health care professionals have decided to give her an elective caesarean section which is booked for 23 June 2003. This is to ensure that there is no risk of infection to the child by means of a vaginal birth. I have to decide this case as of the date of the hearing. Although I can take into account the practicality of the situation that the respondent will not remove the appellant until after she has given birth on 23 June 2003, nevertheless this is not a case where the appellant is to give a simple birth to a child. This is a case where there are complications in view of the appellant's HIV/AIDS and the allied difficulties and complications for her expected child. I note that from the report from Jeanette Meadway, that after the birth, the baby should receive antiretroviral treatment for a month and monitoring for eighteen months as the interpretation of tests to determine HIV status in a baby are complex and difficult. Furthermore, the recommendation in the strongest term is that the baby ought to be fed formula feeding. This is only available in powdered form in Ghana and therefore the appellant would have to mix it with water. There are considerable risks of contamination of water both in towns and villages during rainy seasons. This will lead to a risk of water borne diseases such as Cholera and Typhoid as well as gastroenteritis. This poses considerable risk to small babies whose feeds are made up with available water.
"48. In these circumstances, in my judgment, if the appellant were to be removed with a small baby, the necessary care in relation to that baby would be interrupted. That care was necessary for her other child K and ensured that he remained risk free. The expected baby would be deprived of that care and to expose the baby through either breast feeding or through a mixture of breast feeding and formula feeding, this would increase the risk to the baby of contracting HIV/AIDS from the appellant. There will be obvious health risks to this baby in view of using contaminated water to mix the powder form of formula feeding in Ghana.
"49. Although a foetus has no right to life, it is really for the position of the unborn child as of the date of the hearing and the necessary care for this unborn child upon birth, that I hold that the removal of the appellant as of the date of the hearing would breach Article 3 since there will be substantial risk of exposing the child to HIV/AIDS and this would amount to exposing the appellant to inhumane or degrading treatment. To see a new born child develop HIV is capable of being inhumane and degrading treatment particularly where it could have been prevented with adequate [care] as in the case of her son, K.
"50. Had it not been for the position of the unborn child, I would have dismissed the appellant's claim under Article 3 for the reasons I have outlined above. This is because the necessary treatment is available in Ghana. Although it is said that the appellant cannot pay for the treatment, I have my reservations about this because I do not accept her evidence that her father is such a poor man as she claims. Although her father may shun her for developing AIDS, he may provide her with the necessary finances to resettle in Accra upon return to Ghana."
"As the appellant has succeeded in her Article 3 claim before me, the respondent then has to grant her some form of leave. That is a matter entirely for the respondent but my recommendation is that she be granted discretionary leave to remain for a period of two years. This should be enough to ensure that her unborn child is present in the United Kingdom in order to receive the necessary antiretroviral treatment and the monitoring for the test to determine whether the baby has contracted HIV/AIDS. At the end of that period, if the new child is as healthy as K is now, then the appellant should be removed at the end of that period."
"1. It is submitted that the Adjudicator has made an error of law in allowing this appeal on the basis of the risk to the unborn child. Although he has accepted that 'a foetus has no right to life' (see paragraph 49) and that 'I have to decide this case as of the date of the hearing' (see paragraph 47), he has then disregarded this by considering 'the necessary care for this unborn child upon birth' (also paragraph 49).
"3. As the Adjudicator indicates (see paragraph 53) this appeal would not succeed but for the risk to the unborn child. It is submitted that this results in a perverse decision."
"(1) A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator's determination on a point of law."
"(1) On an appeal under section 101 the Immigration Appeal Tribunal may -
"(a) affirm the adjudicator's decision;
"(b) make any decision which the adjudicator could have made;
"(c) remit the appeal to an adjudicator;
"(d) affirm a direction given by the adjudicator under section 87;
"(e) vary a direction given by the adjudicator under that section;
"(f) give any direction which the Adjudicator could have given under that section.
"(2) In reaching their decision on an appeal under section 101 the Tribunal may consider evidence about any matter which they think relevant to the Adjudicator's decision, including evidence which concerns a matter arising after the adjudicator's decision."
I may break off there.
"19. Of greater significance in our view, however, is the point at paragraph 3 of the grounds of appeal that it results in a perverse decision to conclude as the Adjudicator did that the appeal would not succeed but for the risk to the unborn child. We can see a connection between this point and the point we put to Mr Henderson that it is surely somewhat paradoxical to accept that a woman suffering from HIV can be returned to Ghana and yet her child who is not suffering from HIV on his argument cannot.
"22. Our view that ground 3 of the grounds of appeal indicates an error of law by the Adjudicator clearly also in our view opens up the question of the evidence as at today. We have to say that even if we were in some way restricted to considering the situation at the date of the Adjudicator's hearing we would have significant doubts as to whether his determination and its conclusion were not perverse as is contended in ground 3. We note the remarks of Dr Meadway in her letter of 4 June 2003 at page 19 of the first bundle and the final paragraph regarding water supply in Ghana. This is a matter which was considered by the Adjudicator also in his determination. It is not clear what Dr Meadway's basis is for expertise on the water situation in Ghana, but we note from that paragraph that milk for formula feeding available in powdered form is available in large towns in shops and that water supplies in most towns in Ghana are intermittent and water is frequently stored by families. We note the Adjudicator's view that the claimant can be safely returned to Accra and the fact that her father had paid for her journey as indicative of the fact that he was not a poor man as contended by the claimant.
"23. We do not consider that the evidence shows that the water supply in Ghana is such that had the baby been born in Ghana there would not have been fresh uncontaminated water available to make up bottle milk for her to drink. It is clear from Ravichandran that it is proper for us to consider the evidence as it is before us rather than being constrained by the situation as it was before the Adjudicator. The baby is now nearly six months old. We have already referred to the medical evidence concerning her condition as of now and the situation she faces. If she is to be returned to Ghana today the risk of her contracting the HIV/AIDS virus is minimal in the extreme in our view as is also the risk of her drinking contaminated water. We accept that in an ideal world it might be appropriate to wait until the eighteen months period was up in order to be absolutely sure that the HIV anti-body has cleared in the baby. However, Dr du Mont's letter of 11 August 2003 satisfies us as at the date of that letter the chances of the baby, E, being infected by HIV/AIDS were very low and there is no indication that that situation has changed in any way. In our view it would be wholly artificial for us to ignore the situation as it is today but rather to take artificially the situation with the greater uncertainties that existed at the time of the hearing before the Adjudicator.
"24. As we have stated above, we consider that ground 3 of the grounds of appeal does demonstrate illegality in the form of perversity in the Adjudicator's determination and that from our view both at the date of hearing but more particularly as of now the evidence is such as to show that there is no real risk that the claimant's daughter, E, is infected by HIV/AIDS and nor that on return to Ghana is there any real risk that she will become so infected or ill in any other way or suffer illnesses of the kind referred to through drinking contaminated water. As a consequence, we conclude that the Adjudicator's determination, admirable though in many ways it is, nevertheless contains a clear error of law and we conclude that in this case the Secretary of State's appeal must accordingly be allowed."
"Laws J in refusing Rajendrakumar leave to move at first instance said this:
' ... there are cases in the books in which courts have held, not least in the context of the immigration rules related to primary purpose and marriage cases, that the task of the appellate authorities is to look at the situation at the time of the Secretary of State's decision. Whatever may be the position in relation to primary purpose cases, I simply cannot believe that in these acutely important asylum cases the adjudicator is solemnly to ask himself a question not about the present but about the past; that he is to conduct a judicial exercise which is historic only. The whole purpose of the grant of special rights of appeal under the Asylum and Immigration Appeals Act 1993, to persons whose asylum applications have been turned down, is to secure protection for those who might in truth turn out to be true refugees. I cannot believe that the appellate authorities should do anything but ascertain, when a case comes before them, whether the appellant with whom they are dealing is then and there a person with a well-founded fear of persecution.'"
"With regard to immigration appeals generally (which, of course, are by no means restricted to primary purpose cases) there is no doubt whatever that appeals have to be dealt with on the basis of the factual situation existing at the time of the original decision against which the appeal is brought. That was established in 1982 in R v Immigration Appeal Tribunal ex parte Weerasuriya 1983 1 All ER 195 and R v Immigration Appeal Tribunal ex parte Kotecha  2 All ER 289, and the rule has been applied in innumerable cases since. Does the reasoning in those cases apply equally, as Mr Macdonald submits, to asylum appeals?
"Although I confess to finding this a difficult issue, I have concluded that the position is indeed different in asylum appeals. It is true that to a substantial extent the reasoning in Weerasuriya and Kotecha relies as a matter of construction on the use of the past tense in section 19(1)(a)(i) and (ii) (and indeed in section 19(2)), but the court relied also upon other considerations which they found reinforced their construction of section 19, principally the nature of the appellate structure in immigration cases. As Webster J said in Weerasuriya in a passage then approved by the Court of Appeal in Kotecha:
'... it is, as it seems to me, necessary to look at that appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original administrative decision-making function or whether it is to be regarded as simply a process for enabling that decision to be reviewed. It seems to me it falls into the latter category rather than into the former category.'
"I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded rather as an extension of the decision-making process. I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act overrides the retrospective approach ordinarily required (implicitly) on a section 19 appeal. Section 8, after all, could but does not, identify the ground of appeal as being that the appellant's removal 'would have been' (rather than 'would be') contrary to the United Kingdom's Convention obligations. Moreover section 8(1) refers to a particular class of appeals and section 19 to appeals in general. It would be a strong thing to say that the general was to override the particular.
"When it comes to the policy considerations, moreover, there are clearly good reasons for adopting a different approach in asylum cases. Whereas all ordinary immigration cases are entirely specific to the individual applicant and ask simply whether he or she qualifies under the rules, asylum cases are necessarily concerned at least in part with the situation prevailing in a particular foreign country. Not only the Secretary of State but also the special adjudicators build up a body of knowledge about that situation and it would be unfortunate indeed if they are bound to ignore all that they know to have happened after a given historical date, the date of the Secretary of State's refusal of asylum. The situation might have changed for the better or it might have changed for the worse. In either event, if the appellate authorities were bound to ignore such changes, it would render their decisions substantially less valuable. If the situation had improved but, because the appellate authorities had to ignore such improvement, the appeal succeeded, the Secretary of State might nevertheless, in reliance upon article 1C(5) of the 1951 Convention refuse the appellant refugee status."
I may break off there.
"49. Although a foetus has no right to life, it is really for the position of the unborn child as of the date of the hearing and the necessary care for this unborn child upon birth, that I hold that the removal of the appellant as of the date of the hearing would breach Article 3 since there will be substantial risk of exposing the child to HIV/AIDS and this would amount to exposing the appellant to inhumane or degrading treatment. To see a new born child develop HIV is capable of being inhumane and degrading treatment particularly where it could have been prevented with adequate [care] as in the case of her son, K."
"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. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that 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."
"In simple terms, the grant of permission, that is permission to appeal to the Immigration Appeal Tribunal, is the gateway to the Tribunal giving an appeal for consideration on the basis of the up-to-date evidence as to the background conditions in the relevant home country and any developments in an appellant's personal circumstances that are relevant to their claim."
Order of IAT set aside; Adjudicator's decision restored.
Anonymity order made under section 11.
Permission to appeal refused.