ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Burnett
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE AIKENS
| KH (AFGHANISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Ms Lisa Busch (instructed by The Treasury Solicitors) for the Respondent
Hearing date: Thursday 12 November 2009
Crown Copyright ©
Lord Justice Longmore:
" one would anticipate that this high level of stress combined with a loss of support and treatment would lead to a high risk of relapse of his depression and symptoms of post-traumatic stress disorder.
Should his depression deteriorate clearly the risk of self-harm and indeed suicide would escalate, with [the appellant being] at particular risk of suicide in view of his previous self-harm."
The Arguments and the Judgment
"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 (Ireland v the United Kingdom, p 66 s167; V v the United Kingdom [GC] no.24888/94 ECHR 1999-IX, S71). 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, (sect 3), ECHR 2001-VIII, s24-30, and Valasinas v Lithuania no 44558/98, (sect. 3) ECHR 2001-VIII, s117). 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 v the United Kingdom judgments and also Bensaid v the United Kingdom, no. 44599/98, (sect. 3) ECHR 2000-I)."
Medical Case or No?
Divide between Pretty and N?
" the Strasbourg court has constantly reiterated that in principle aliens 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 stated. Article 3 imposes no such "medical case" obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would be immigrant will be significantly shortened."
All their Lordships were concerned to distinguish the case of D v United Kingdom where the Strasbourg Court had decided that the expulsion of D to St Kitts where the applicant could not be guaranteed nursing or medical care would violate Article 3 and found the distinction in the fact that D was actually dying or close to death, see Lord Nicholls at para 15, Lord Hope at para 50, Baroness Hale at para 69, and Lord Brown at para 94.
"42 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 Art. 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 Art. 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.
43 The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v United Kingdom and applied in its subsequent case law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.
44 Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights. Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the contracting state and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Art.3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Art3 does not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the contracting states.
45 Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-realties condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost. "
Very Exceptional Case?
Lord Justice Aikens:
Lord Justice Sedley:
"The reasoning of the House in N accepts, in effect, that the internal logic of the Convention has to give way to the external logic of events when these events are capable of bringing about the collapse of the Convention system. . [T]he underlying message of N and Razgar, and of Ullah too, is that the ECHR is neither a surrogate system of asylum nor a fallback for those who have otherwise no right to remain here. It is for particular cases which transcend their class in respects which the Convention recognises. None of this could find any place in an originalist reading of the Convention; but just as the Convention has grown through its jurisprudence to meet new assaults on human rights, it is also having to retrench in places to avoid being overwhelmed by its own logic. If what result are rules rather than law, that may be an unavoidable price to be paid for the maintenance of the Convention system. One had much rather it were not so."
That remains my view. It is compounded by the fact that the rule in N either does not apply outside the field of healthcare or as I would prefer to reason - operates differently depending on whether the material treatment is of a person who, albeit on sufferance, will continue to be present in the United Kingdom and to be treated inconsistently with Art. 3 while here, or of a person for whom the potentially inhuman or degrading treatment will be constituted by the act of removal.