Case No: C5/2010/0471
Neutral Citation Number: [2011] EWCA Civ 71
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/14314/2009]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  Wednesday, 12 January 2011

Before:

LORD JUSTICE SEDLEY
LORD JUSTICE RIMER
and
LORD JUSTICE SULLIVAN

- - - - - - - - - - - - - - - - - - - - -
Between:

	SG (ZIMBABWE)	
Appellant	
	- and -		
	
THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
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)
- - - - - - - - - - - - - - - - - - - - -

Ms Margaret Phelan (instructed by Messrs Polpitiya & Co) appeared on behalf of the Appellant.
Mr Colin Thomann (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Sedley:

1.	This is an adjourned application for permission to appeal, which has been directed by Toulson LJ to come before a full court with the appeal to follow if permission is granted.  We have granted permission and now give judgment on the substantive appeal.

2.	The appellant is an Zimbabwean national, born in February 1968.  He arrived in the United Kingdom in October 2002 with six months leave to enter as a visitor, followed by a year's leave to remain as a student.  By the end of that time, October 2003, he had been diagnosed as HIV positive.  He has since had ARV therapy and, absent some medical breakthrough, will need it for the rest of his life.  Thanks to the National Health Service he has had access to treatment and monitoring and will have it as long as he remains here.

3.	Whether lawfully or not, the appellant has worked here for the last five years as a road sweeper.  This enables him to remit £300 per month to his wife and three children in Zimbabwe.  It enables the children to attend school and is, so far as the evidence went, the only income enjoyed by his wife and father-in-law.  The immediate family live in Gokwe, but the appellant has two brothers with government jobs (a police constable and prison officer) in Harare.

4.	 In May 2004 the appellant applied for leave to remain outside the rules on the ground of his HIV status.  He was refused by the Home Office, but the refusal was reconsidered following the decision of this court in JM (Liberia) [2006] EWCA Civ 1402.  This resulted, however, in another refusal.  The appellant's appeal to the AIT failed, but reconsideration was ordered.  This came before Immigration Judge Robinson, who again dismissed the appeal.  It is against his determination that the appellant now brings this appeal.

5.	Of the grounds advanced below all but one, a ground which only emerged at a late stage, have dropped away.  This ground arises under rule 395C of the Immigration Rules.  It is contended that Immigration Judge Robinson, having noted the rejection of the case under Article 3, has approached the Home Office's refusal to grant indefinite leave to remain under rule 395C on an inadequate basis of fact.  The rule reads:
“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:
(i) age; 
(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."

6.	Issue has briefly been taken before us about the scope of this rule.  It is sufficient for the present to say that in a case where subparagraph (vii) of the rule is relied on, it is plainly not a simple analogy of Article 3 of the European Convention on Human Rights.  Nor, however, is it a simple substitute for Article 3.  It may operate, for example, in compassionate circumstances falling short of Article 3 if, in the context of all the other relevant factors, the decision maker considers that removal, albeit lawful, would be unduly harsh.
 
7.	In the present case the Immigration Judge, noting the earlier failure of the claim under Article 3, wrote at paragraph 28:

"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."

8.	Ms Phelan's critique of this passage on the appellant's behalf is that it overlooks what it is, on the evidence, that sustains his immediate family.  It is the £300 he sends them each month.  It is accepted that, on the evidence, the wife, children and father-in-law have no other means of financial support. Return will inexorably put an end to this support, and the possibility of the appellant finding work while real is by no means strong.  In consequence it may be that regular food (an essential part of successful treatment) and access to treatment and monitoring will depend on the charity of the appellant's two brothers.  The evidence before the Immigration Judge, as Ms Phelan reminds us, was that some two-thirds of HIV-positive Zimbabweans did not at that date have access to treatment.  In paragraph 26, the Immigration Judge wrote:
 
"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..."

9.	For the Home Secretary, Mr Thomann in fact relies upon this passage in showing that the Immigration Judge had well in mind what the situation would be on return.  He points also to paragraph 20, where the Immigration Judge (page 32 of the bundle) says:
"... 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."

10.	This, however, relates to political, not financial, support, and it is the latter with which we are now concerned.  Mr Thomann also points out that in paragraph 26 (which I have quoted) the Immigration Judge deals with the objective evidence about the availability of treatment.  All this may be so, but none of it seems to me to fill the gap in paragraph 28 or to correct its implicit assumption that financial support was already available to the appellant on his return.  Such evidence as there was was to the contrary.  It follows, in my view, that the decision on rule 395C was based on incomplete facts.

11.	But Mr Thomann goes on to submit that there is no point in remission because the gap has now been filled by the Country Guidance decision in the Upper Tribunal in RS (Zimbabwe) [2010] UKUT 363 (IAC).  This impressively full and careful decision of a tribunal of three senior immigration judges, given after the date of Immigration Judge Robinson's decision in the present case, is for the present the factual gold standard.  In it Ms Phelan points to paragraph 75, which highlights some of the risks arising from the interruption of medication even if it is later resumed, and to paragraph 210.  This reads:

“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.”

12.	From this passage Mr Thomann invites our attention to an important earlier passage in the judgment of RS at paragraph 163.  This reads:

“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.”

13.	It follows, Mr Thomann was initially disposed to say, that the appellant has nothing to fear from return.  He will go to the front of the queue because he has already been treated here and because the hazards of interruption are, as a matter of policy, recognised.

14.	In argument before us Ms Phelan replied that what Mr Thomann is relying on is no more than the WHO's response to enquiries which had been made (see paragraph 160) by a British diplomat in the course of compiling a report on antiretroviral drug availability in Zimbabwe.  The WHO, it is said, does not itself deliver treatment.  What it is describing is its policy for those who do deliver treatment.  As the Tribunal itself noted in paragraph 172 of RS there remains the question whether it has been implemented.

15.	Since the conclusion of argument this morning, both Ms Phelan and Mr Thomann have sacrificed their lunch hours to do further research on the current state of affairs in health delivery in Zimbabwe for those living with AIDS.  All that I think needs to be said at the moment is that things are in flux and in doubt.  In particular, the continuation of a major part of the funding for the national programme is now in question and there are other questions too that are unresolved, as Mr Thomann candidly accepts, in relation to the contents of paragraph 163.

16.	Even were that not so, I would not have been satisfied that there was only one possible answer, namely a negative answer, to the appeal if we were to remit it.  It seems to me that once attention is paid to the apparent want of financial resources in the appellant's immediate family if he is returned, at least two further issues require decision.  One is what financial support, if any, can actually be expected from the appellant's two brothers?  The other is whether the WHO policy of prioritising treatment of returnees who are already on antiretroviral medication is being implemented either in the Gokwe area or, if not, in places to which the appellant can go.

17.	At the conclusion of argument it did not seem to me, and it certainly does not seem to me with the new information that we have, that we are in a position to answer either of these questions for ourselves.  I see no reason why this should not be remitted to Immigration Judge Robinson so that he can modify his determination as required and reach a fresh and informed conclusion, but because there may be logistical difficulties in such a course I would for my part confine our order, if my Lords agree, to allowing the appeal and directing remission to the Upper Tribunal for determination in accordance with the judgment of this court.

Lord Justice Rimer:   
18.	I agree.

Lord Justice Sullivan:   
19.	I also agree.

Order: Application granted; Appeal allowed (remitted to Upper Tribunal)