ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT (COX J)
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE LEWISON
LORD JUSTICE UNDERHILL
| THE QUEEN on the application of SQ (PAKISTAN) AND ANOTHER
|- and -
|THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER & ANOTHER
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Ms Kerry Bretherton (instructed by Treasury Solicitors) for the Respondent
Hearing date : 18 September 2013
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Lord Justice Maurice Kay :
"I am concerned as to whether the FTT adequately considered the medical evidence relating to MQ or gave adequate reasons for its finding that there were no countervailing factors militating against his removal. The appeal would address the issue as to the conflicting interests of immigration control and the interests of a sick child in a case in which the interests of the child are a paramount consideration. This is an important point of principle and given the possible consequences for this child there is also a compelling reason for permission to appeal."
I infer from the reference to "countervailing factors" and "conflicting interests" that it was the qualified right in Article 8 of the ECHR that was at the forefront of his mind rather than the absolute right enshrined in Article 3.
"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 … in violation of Article 3 … his removal would expose him to a real risk of dying under the most distressing circumstances and would thus amount to inhuman treatment …
54. … in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, … the implementation of the decision to remove the applicant would be a violation of Article 3."
Thus, there was a clear emphasis on the "exceptional" or "very exceptional" circumstances, which gave birth to a test of exceptionality. The Court further considered that, having regard to its finding in relation to Article 3, "Article 8 raises no separate issue" (paragraph 64).
"42. Aliens who are subject to expulsion cannot in principle claim 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 D v United Kingdom … 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.
44. … art 3 does not place an obligation on the contracting state to alleviate such disparities [in the availability of treatment] 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.
53. The court does not consider that any separate issue arises under art 8… It is not necessary, therefore, to examine this complaint."
The medical evidence in present case
"The mainstay of treatment for patients with Beta thalassaemia major is blood transfusion therapy in order to maintain an adequate haemoglobin to allow growth and development to occur. Blood transfusion therapy results in the development of iron overload, and the iron overload is associated with potentially fatal complications, in particular heart failure due to deposition of iron in the heart, liver cirrosis due to iron deposition in the liver, followed by fibrosis and then ultimately cirrosis, endcrinopathies, in particular diabetes mellitus, hypogonado-hypogonadism, hypothyroidism and hypoparothysoma. Essentially, the iron deposition moves to the other essential endocrine organs such as the pituitary gland, the thyroid gland and causes harm in those organs. Once a certain iron threshold is acceded … iron can be deposited in the heart. Iron deposits in the heart can cause fatal complications in particular abnormal cardiac heart rhythms, the commonest being atrial fibrillation or superventricular thakicardias, and then going on to heart failure and a dilated left ventricle.
Prior to the advent of appropriate chelation therapy associated with rigorous monitoring, patients used to die of heart failure or liver cirrosis, in their late teens or early twenties. In the UK with appropriate chelation and monitoring by the year 2000, data showed that 50% of British thalassaemic patients would have died by the age of 35 years, a large proportion of these being older thalassaemic patients who had received inadequate iron chelation at a young age. More recent data that has been published shows that survival is extremely good in well-treated and well-managed beta thalassaemia patients, and in the UK we can now confidently say that for a well-managed thalassaemia patient, life expectancy is essentially nearly normal with a good quality of life.
The current situation in Pakistan is very much like the situation that the UK was in the 1960's. With inadequate transfusion and inadequate chelation, prognosis is extremely poor with very few patients with beta thalassaemia major surviving into their thirties, the majority dying from iron-related complications in their late teens and early twenties."
"The lack of adequate chelation therapy in Pakistan has resulted in very serious endocrine problems for MQ, which are going to be impacting on his ability to grow. Should he be returned to Pakistan, his prognosis is extremely poor and he would in all likelihood die by the time he is in his late teens or early twenties, from iron associated cardiac failure or liver cirrohsis. If he was sent back to Pakistan, we would not expect him to chelate effectively due to the problems with getting adequate chelation therapy in Pakistan. We would not expect him to grow or transition through puberty, again due to the difficulties of getting growth hormone therapy, testosterone therapy and appropriate monitoring of these treatments in Pakistan.
Were MQ to remain in the UK, I would envisage that with a concerted multi-disciplinary effort, this young gentleman could be effectively di-ironed over the next three to five years and we would expect him to be able to grow to a more acceptable height, and at the very least transition through puberty with appropriate multi-disciplinary support.
His prognosis if he was to remain in the UK would be good, as we would be able to effectively monitor and manage his treatment, to ensure that the complications that he has already developed, did not progress or worsen."
"Although this treatment may be available in Pakistan I doubt the expertise would be available to take MQ through the treatment and successfully give him an acceptable height."
The decision of the FTT
"In this instance the appellant's rights under Article 3, bearing in mind that he is a child, would have to be considered. In doing so I have taken into consideration the objective material relating to Pakistan in the country information report together with Dr Qureshi's evidence, the letter from the Whittington Health Authority and the psychiatric report …"
"For these reasons on the entirety of the evidence before me I do not find that the appellant's life is endangered so as to accede the threshold set out in the case of N even if the appellant was impecunious. The appellant would therefore immutably be able to relocate in Pakistan if required however unpalatable the prospect may be. Considering the question of private life which has been raised the appellant has been in the United Kingdom for a brief period and the treatment he receives is a good part of the private life of the appellant's life here and has been settled in the above paragraph. For these reasons I do not find that the private life of these appellants would be infringed upon their removal to Pakistan. Considering the question of the best interests of the child I have been asked to consider the position in ZH (Tanzania) and find that the appellant's cultural, linguistic and family ties are best maintained in his country of origin. I have also noted that there are no countervailing factors that militate against the removal of this appellant in the context of Article 8 and section 55."
He therefore dismissed the appeal on all grounds. As I have related, permission to appeal to the UT was refused by the UT and an application for permission to apply for judicial review was refused by Cox J.
"No one shall be subjected to inhuman or degrading treatment …".
It is well known that a contracting state may infringe Article 3 if it returns a person to a country where he would be at substantial risk of inhuman or degrading treatment: see Soering v United Kingdom  11 EHRR 439, which provided the jurisprudential basis for D. However, the imposition of a "high threshold" is equally well established and this is underlined by the test of exceptionality illustrated by D and N. On the other hand, Article 3 confers an unqualified right. Ultimately the question is whether what is likely to befall the claimant crosses the high threshold and the test of exceptionality. Whether or not the required level of severity is reached in a particular case depends on all the circumstances of that case. I accept that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult. As Baroness Hale said in E v Chief Constable of the Royal Ulster Constabulary  1 AC 536 (at paragraph 9) :
"The special vulnerability of children is also relevant to the scope of the obligation of the State to protect them from such treatment."
She referred to "the instructive case" of Mayeka and Mitunga v Belgium  46 EHRR 449. However, in the present case the evidence, taken at its highest, and making every allowance for the age of MQ, does not establish that the high threshold is satisfied. To put it bluntly, MQ would not be returning to an early and solitary death in Pakistan. He had been receiving treatment and blood transfusions without contracting HIV, hepatitis B or C before leaving Pakistan. He also received chelation therapy although his mother states in her witness statement that he sometimes missed that treatment for a month or two because they did not have the money to pay for the best medication and sometimes they had to use inferior alternatives. In 2010, MQ contracted malaria and typhoid but it is not established that this was the result of receiving unscreened blood transfusions.
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
"are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom."
The wide significance of this was explained by Baroness Hale in paragraph 24 of her judgment in ZH:
"This means that any decision which is taken without regard to the need to safeguard and promote the welfare of any children involved will not be 'in accordance with the law' for the purpose of Article 8(2). Both the Secretary of State and the tribunal will therefore have to address this in their decisions."
To require that the best interests of the child are "a primary consideration" does not mean that those interests must always prevail. As Baroness Hale went on to say (at paragraph 33):
"In making the proportionality assessment under Article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that."
Lord Justice Lewison:
Lord Justice Underhill: