ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SIJ Latter and IJ Oxlade
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE AIKENS
| JA (IVORY COAST)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Miss Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 10-11 November 2009
Crown Copyright ©
Lord Justice Sedley :
4.1 The caseworker's note on JA's application in December 2003 reads:
Application for further leave to remain exceptionally outside the Rules on compassionate grounds in order to receive NHS medical treatment.
Ms [A] initially entered the UK as a visitor for six months on 21 March 2000. She subsequently submitted an out of time application for EXLTR to receive NHS treatment for HIV. In considering her application the caseworker dealing with it acknowledged her physical condition, the lack of HIV/Aids treatment in her home country and also the case clearance exercise in force at the time. She was consequently granted 12 months EXLTR to expire on 09 November 2003. Ms [A] has now applied for FLTR. Her latest medical report states that her CD4 count is now 626 which is at the middle range of 400-1500 of a healthy person. Her HIV remains well suppressed and will continue to be as long as she continues to take anti- retrovirals
As this applicant has been granted leave to remain in the past and her medical condition remains the same, the UK can be regarded as having assumed responsibility for her case and we may proceed to grant FLTR in line with present policy.
4.2 The caseworker's note on ES's application in November 2003 reads:
Application for further leave to remain exceptionally outside the Rules to continue to receive HIV medical treatment on the NHS.
Ms [S] was previously granted XLTR for 12 months on 16/11/2002. There has been no change and her condition remains the same. Her most recent medical report dated 30/09/2003, states that an AIDS diagnosis was made in August 2000 as she was found to have extrapulmonary tuberculosis. She was started on anti–retroviral therapy to inhibit further disease progression As the UK has already assumed responsibility for her care, we may proceed to grant FXLTR until 30 December 2006 in accordance with Home Office Asylum Policy Instruction on discretionary leave.
It would appear from the Charging Case Flag on file that this applicant was charged by Sheffield Caseworking in full £155.00 for her application. See ATOS Batch Number: 00004029 dated 28/11/2003. As there is no trace of a refund, I will refer this file to the Charging Support Team to investigate.
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.
Without calling into question the good faith of the undertaking given to the Court by the Government, it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.
54. Against this background the Court emphasis that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State 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.
Right to respect for private and family life
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.