ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE LEWISON
| AE (Algeria)
|- and -
|Secretary of State for the Home Department
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Lisa Busch (instructed by Treasury Solicitors) for the Respondent
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Lord Justice Maurice Kay:
"This is not a case where [Maya] would die as a result of her removal from the UK but she would suffer a reduction in the level of care and support that she receives (and) this would also have consequences for her family."
Indeed, the differentials in relation to medical, social and educational support as between this country and Algeria are very substantial indeed.
The Article 3 claim
"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."
It is a fact that D is the only health case to have succeeded in the ECtHR, apart from BB v France (47/1998/950/1165) where the outcome proceeded on the basis of a concession rather than an adjudication.
"31. Living in Algiers Maya did receive some medical attention. I accept that the care she received was less than she would receive in the UK and that she will have benefitted from the care and support that she and her family have received since they arrived here. I also accept that her welfare has improved with the treatment that she has received in the UK. If she were to return to Algiers it is clear that she would receive less medical support, that the burden on her parents and family overall would increase and that the family would have the burden of paying for her treatment.
33. Whilst her condition is difficult and her need for medical care substantial I find that her circumstances cannot be described as being so unusual that she meets the high threshold set out in the case of N. This is not a case where she would die as a result of her removal from the UK but [she] would suffer a reduction in the level of care and support that she receives, this would also have consequences for her family."
It was also noted that, unlike a case such as D, Maya would, on return to her home country, continue to benefit from family support.
"34… the best interests of children have to be treated as a primary consideration in this case and that applies to Maya and her siblings. Her best interests also have to be assessed along with the competing public interest in the exclusion of those otherwise illegally in the UK and the maintenance of immigration control reflecting the economic wellbeing of the UK.
36. On the evidence that is available it seems clear that it would be in Maya's best interest medically to remain in the UK and that would no doubt benefit her siblings too. That they would benefit by remaining in the UK would not be surprising and I find that it would be in the best interests of Maya and her siblings to remain in the UK.
41. The section 55 considerations are of course interrelated and include the fact that the children will be returned to live with their parents, the availability of treatment, and the fact that it has not been proved that the nature of the treatment available and the consequences of that treatment are such that they cannot be returned. I find it has not been shown not to be in the children's best interests for them to be returned to Algeria. It is not suggested, nor supported by the jurisprudence, that the notion of the best interests means obtaining for Maya the best available medical treatment as such a finding would have the effect of rendering the established legal test inadmissible when applied to children with medical needs in relation to both the established thresholds and the comparison of available treatment in both the UK and the state to which any children are to be removed. Clearly there may be circumstances where there is tension between the authorities and the statutory provisions but I do not find the same to have been
42. Although the family have been in the UK for a limited period and in circumstances in which their presence has been precarious I accept that Article 8 is engaged. I do not accept that the removal of the appellant and his family would have such consequences as to place the UK in breach of its international obligations. Specifically, while taking into account consideration of the best interests of the children and Maya's medical needs and Articles 3 and 8 I am satisfied that their removal is proportionate being justified by the need to maintain immigration control."
It will be observed that the final sentence in paragraph 41 appears inchoate. I have reproduced it as it stands in the text.
Lady Justice Black
Lord Justice Lewison