ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/14314/2009]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE SULLIVAN
| SG (ZIMBABWE)
|- and -
THE SECRETARY OF STATE
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Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Lord Justice Sedley:
"Before a decision to remove under section 10 [of the 1999 Act] is given, regard will be had to all the relevant factors known to the Secretary of State including:
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf.
In the case of family members, the facts listed in paragraphs 365-368 must also be taken into account."
"Nevertheless I have considered the appellant's health needs under the heading 'compassionate circumstances' and have looked at his situation as a whole in the light of all the factors to be taken into account under paragraph 395C. I have noted that the medical facilities in Zimbabwe are stretched to the limit and that food distribution operations have been erratic. Nevertheless, the WHO reports that antiretroviral treatment is available, albeit people may need to 'work the system' or make additional payments to get it. I find that the appellant does have family members who would be able to support him and assist him to access medical treatment. Importantly his family members appear to have accommodation, access to food and other necessities and (in the case of his children) education."
"I have considered the availability of treatment in Zimbabwe. The Country Report (July 2009) questioned the World Health Organisation 'Health Action in Crisis' (December 2008) which noted 'Although HIV/AIDS prevalence among adults has dropped from 24.6% to 15.6%, the deaths attributable to AIDS is estimated 130,000 every year. A third of the 340,000 requiring anti retroviral treatment are receiving it, compared to 5,000 in 2004.' Zimbabwe's HIV crisis is exacerbated by chronic food insecurity..."
"... I take the view that the appellant would have the support of four adults (his brothers and parents-in-law), who could all claim with some justification that they are loyal to the regime. His brothers are government servants and his parents-in-law are ZANU-PF supporters."
"From the evidence as a whole we conclude that there are a significant number of people receiving treatment for HIV/AIDS in Zimbabwe, and we do not consider that waiting times, as set out in the previous paragraph, are excessive. It is relevant in this regard also to note the document in the respondent's bundle entitled "Guidelines for anti-retroviral therapy in Zimbabwe" dated September 2009 and provided by the National Drug and Therapeutics Policy Advisory Committee (NDTPAC) and AIDS and TB Unit of the Ministry of Health and Child Welfare in Zimbabwe which sets out detailed guidelines to assist those involved in the management of HIV and AIDS in Zimbabwe."
"As regards the criteria for access to treatment/drugs in the public sector, these are set out in the "Guidelines for Anti-Retroviral Therapy in Zimbabwe". It is said by the World Health Organisation (WHO) in its response that new arrivals in Zimbabwe who are already on treatment will be prioritised. The National AIDS Council said that if someone had already been initiated on treatment in another country they would not have to wait more than a month for treatment. An anonymous international organisation said that those who had already been tested "should be able to access treatment with two weeks in government hospitals and a few days in private institutions". The WHO said that priority for treatment was currently given to children, pregnant women, health workers and their immediate families and all patients who meet the criteria set out in the National ART Guidelines, including those already on ARV treatment (in order to avoid development of HIV drug resistance). The WHO had said that some members of the diaspora had already contacted them with enquiries about treatment on return, and some had since returned."
Lord Justice Rimer:
Lord Justice Sullivan:
Order: Application granted; Appeal allowed (remitted to Upper Tribunal)