ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: AA/06176/2009]
Strand, London, WC2A 2LL
B e f o r e :
| FM (ZIMBABWE)
|- and -
SECRETARY OF STATE FOR THE
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Julie Anderson (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
The hearing before the immigration judge
"…overlaid with political considerations, with access to such treatment being limited to figures in the Zanu-PF hierarchy. Consequently, there was discrimination in the distribution of medication (an administrative function) on grounds of imputed political opinion." (7.2)
"Insofar as the appellant's Article 3 arguments relate to her HIV diagnosis and the alleged loss of her medical treatment upon return to Zimbabwe, the case law authorities are very clear. In the leading case of N v SSHD  UKHL 31, the House of Lords concluded that the removal of an appellant to Uganda, where difficulty in obtaining suitable medical treatment was considered likely to result in a drastically reduced life expectancy, was not exceptional enough to reach the very high threshold required to establish a breach of Article 3."
"It seems, therefore, that Article 3 can in principle be engaged where the suffering from an illness associated with HIV status can be exacerbated by actions of the state in intentionally restricting access to medical treatment that might otherwise be available."
The immigration judge said that some support for that view could be found in three authorities to which he was referred by the appellant's solicitor.
"Arden LJ also observed at paragraph 40 that 'great care would have to be taken to determine whether the lack of medical facilities ... is due to the infliction of deliberate harm on the appellant (or whether there is an appropriate level of risk of that) or whether the lack of medical facilities is due to a lack of national resources for this purpose '. It seems that, whereas the latter scenario (in line with N) would not engage Article 3, the former scenario might well do so, but only where a proper factual analysis justified such a conclusion."
"This appears to be the first time (at least in the decisions I have seen) that the higher courts have been asked to deal with complaints that anti-retroviral medication in Zimbabwe is only available to Zanu-PF activists and not to others. In other words, adopting the distinction of Arden LJ in RS, the issue is not simply the general lack of national medical resources but their specific restriction on a politically discriminatory basis. In granting permission to appeal, Carnwath LJ described it as 'a point of potential significance'."
"It is a great pity that the respondent did not provide the presenting officer for this case, which happens not infrequently, as it involves some novel arguments and I am sure that I have greatly benefitted from hearing submissions offering an alternative view point."
"On one occasion in 2003, she attempted to get HIV medication from a local public clinic and she was told that, as she was not a card-holding supporter of Zanu-PF, it was not available to her."
"Instead, she has maintained consistently that she is wholly uninterested in politics and that she has been involved in no political activity of any nature in either Zimbabwe or the UK. I therefore accept as truthful that, on an occasion in 2003, when attempting to get HIV medication in Zimbabwe, she was told that, as she was not a card-holding supporter of Zanu-PF, it was not available to her. However, I disregard her opinion (doubtless held in good faith) that she would die very quickly upon return to Zimbabwe; while Dr Edwards agrees that her life expectancy would be reduced, she was unable in her medical report to state that it was likely to be reduced to less than a year."
"The appellant has supplied two reports from Professor Tony Barnett, who is said to be an expert on HIV/AIDS in Africa. He has provided a declaration setting out his understanding of his duties to the Tribunal as an expert witness. He is a professorial research fellow in public health at the London School of Economics, director of 'LSEAIDS' and an honorary professor of the London School of Hygiene and Tropical Medicine. He was previously professor of development studies at the University of East Anglia in Norwich, has held a visiting overseas professorship in Tokyo and has taught at the Harlem School of Public Health. He is not a medical professional, but is a socio-economist trained in social anthropology, sociology, political science and economics. He has worked in a senior advisory capacity to a number of specialist agencies of the United Nations and to the Department of International Development in the UK. His main research interest in recent years has been the implications of the HIV/AIDS epidemic in Africa and Asia on social and economic life. He has published extensively on the subject, including co-authoring a leading work entitled 'AIDS in the 21st Century: Disease and Globalisation' ... I am persuaded that he is a person of considerable expertise and that, notwithstanding that he did not attend the Tribunal personally in order to be asked questions, his opinions (insofar as they derive from that expertise and can be properly sourced) should carry considerable weight."
"On the more novel point in this appeal, Professor Barnett quoted a source (who he was unwilling to name in his report but would have been prepared to disclose in private to the Tribunal if asked) who has provided him with an informal briefing that Mr Mugabe has expressed the view that it is 'perfectly reasonable to restrict supplies of anti-retroviral medicines to key members of the state apparatus so as to ensure that it continues to function'. As Professor Barnett observes, this is consistent with the appellant's own experience of attempting to obtain medication in 2003, which was refused because she did not have a Zanu-PF membership card."
"They support the general view put forward by Professor Barnett that anti-retroviral medication is less and less available in Zimbabwe, although generally the reports do not deal with her contention that their accessibility and distribution has become a matter of discrimination on grounds of political opinion."
"31. The only exception is a report posted to the African Press International website on 2 July 2009 [reference given]. It refers to unhappiness on the part of 'Government officials in Zimbabwe' about the decision by the 'Global Fund to Fight AIDS, Tuberculosis and Malaria' to channel funds for the support of HIV AIDS interventions in Zimbabwe away from the regimes own 'National AIDS Council' and instead through the United Nations Development Programme. This follows the reported revelation, at the start of 2009, that the Reserve Bank of Zimbabwe had diverted over US$7m from a Global Fund grant that had been earmarked for scaling up a national anti-retroviral programme. The news report observes that the medication supplies failed to materialise and, although the Reserve Bank eventually returned the money, it was seen as 'a breach of trust'. I accept Professor Barnett's view, as expressed in his second report dated 22 July 2009, that this shows a readiness on the part of the Zimbabwean regime to divert funds marked for anti-retroviral medication for other political purposes.
32. Based on the above objective and expert evidence, I conclude that it is reasonably likely that, as a 'new' patient, the appellant would not have access in Zimbabwe to either her anti-retroviral medication or to the wider clinical care she needs. It is clear that all underlying medications have become less and less available in the recent past in Zimbabwe. Even if the anti-retroviral medication sought by the appellant were currently available and within Zimbabwe, it seems very unlikely that she would be able to obtain them through a public clinic. Such medication is likely to be available at a high cost (or, at least, a cost prohibitively high for the appellant) through private clinics only. Furthermore, I am persuaded that, in reality, it is reasonably likely that available supplies of anti-retroviral medication are presently being challenged through private clinics either to active supporters of the current Zimbabwean regime or, worse, just to key members of the state apparatus."
"33. I am more hesitant about Professor Barnett's stark conclusion that 'if returned to Zimbabwe, [the appellant] will die', as I prefer the more measured conclusion of her treating physician that her life expectancy would be reduced without medication but that it is not possible to say reduced to less than one year."
"39. If the appellant's removal would not breach Article 3 of ordinary principles, the question that next arises is whether it can be treated as essential on the basis that the lack of anti-retroviral medications in Zimbabwe is caused not just by the general lack of medical resources but also from their specific restriction on a discriminatory basis (which, it will be recalled, Carnwath LJ described as 'a point of potential significance' in the EC permission hearing on 23 October 2008). I am persuaded that it is reasonably likely that this is the case, because cogent and reliable evidence -- in the form of (i) the undisclosed source mentioned by Professor Barnett, (ii) the news report referred to above and (iii) the appellant's own experience -- supports the view that available supplies of anti-retroviral medication are being channelled through private clinics either to active supporters of the current regime or just to key members of the state apparatus. To adopt the reasoning of the ECtHR in the N case, the appellant suffering an accelerated death, flowing from her unfortunate illness ,would be exacerbated not just by the general unavailability of medication in Zimbabwe but by deliberate and discriminatory treatment 'for which the authorities can be held responsible '. Applying the lower standard of proof, this, in my view, is sufficient to make it reasonably likely that the appellant's removal to Zimbabwe would involve a breach of her rights under Article 3 of the ECHR."
"In this case the Immigration Judge held that an undisclosed source mentioned to Professor Barnett, whom he had been unwilling to name, had provided him with an informal briefing but that such source constituted 'cogent and reliable evidence'. Taken together with a single news report published in the African Press International website, in circumstances in which a number of other reports are relied on by the appellant did not go so far as to suggest that accessibility and distribution of anti-retroviral medication had become a matter of discrimination on grounds of political opinion, and the appellant's own evidence that she had been refused anti-retroviral medication in 2003 because she was not able to produce a ZANU-PF membership card, demonstrates that the Immigration Judge was prepared to find exceptionality in the case of the appellant, thus attributing her with an imputed political opinion and entitlement to argue breach of her Article 3 rights, so as to bring the appellant within the exception to the ordinary Rule as laid down by the House of Lords in N, in circumstances that were not open to him. The so-called objective material relied on Professor Barnett is nothing more than an unsubstantiated comment which has not been disclosed such that it could be a subject to the kind of scrutiny that the European Court of Human Rights identified in NA quoted above. On the basis how this apparently crucial piece of evidence was reported, there is no way in which it could be said to be accurate, independent, reliable, objective, demonstrating an adequacy of methodology, or capable of being corroborated. I agree with the respondent that this evidence lacked weight and was clearly not sufficient to make this crucial finding for which there was no other support."
"The evidence overall therefore presents something of a mixed picture on this important point. We bear in mind that the legal test is that of showing a reasonable degree of likelihood. On the evidence considered as a whole, we are not satisfied that it has been shown that there is as reasonable degree of likelihood that any of these appellants would be confronted with the need to display political affiliation or political loyalty in order to obtain ARVs. It is clearly something that happens, but not generally, and we consider that ultimately the comment that the evidence is anecdotal is one that is borne out by an overall assessment of the evidence as a whole. There is a risk that, perhaps particularly in rural areas, difficulty might be confronted, but we do not consider that that amounts to a real risk and accordingly our assessment of the evidence is that it has not been shown that access to ARVs is dictated by political affiliation or that the appellants would experience any real problems in that regard. Specifically, it has not been shown that any of them would face discriminatory in their home areas, to which they would turn."
Lord Justice Pitchford:
Lord Justice Sedley:
Order: Appeal allowed