England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		31 January 2008

1. MR JUSTICE STANLEY BURNTON: This is an application for judicial review of the refusal of the Home Secretary to grant leave to remain to Mr Erimako. The claim for leave and for judicial review is based on Article 8 grounds. The argument has been brief, but that is because everything that can possibly be put forward on behalf of the claimant has been put forward in writing and orally by Mr Harris. As I indicated during the course of argument, this is a case where one has the greatest of sympathy with the position of Mr Erimako and his wife, but the case has to be decided in accordance with the law and it seems to me that the law is relatively clear.
2. Permission to apply for judicial review was given on one ground only, namely that it was arguable that the Home Secretary in refusing leave had misunderstood the position of Mr Erimako and his wife, so far as fertility treatment is concerned. Since then matters have moved on and the real question before the court today is whether the ongoing refusal of the Secretary of State, to which I have already referred, to grant leave to remain infringes Mr Erimako's rights and his wife's rights under Article 8.
3. The particular circumstance which gives rise to this claim is that Mr Erimako is married to a lady, now in her mid 40s, who has leave to remain in this country. They are childless and understandably wish to take every possible step in terms of medical treatment to have children. As I said during argument, the lack of a family can be very distressing to a couple, and it is more than understandable that they should wish to have children, if at all possible. For that purpose they have been attending Guy's and Saint Thomas's hospital and have been under the care of the Department in Reproductive Medicine.
4. The most recent medical evidence is contained in a letter of 14 November 2006, that is to say just over a year ago, which relates to Mrs Erimako. It refers to her medical condition and the possibility of a myomectomy, but continues:

"…she has had a poor response from her ovaries and the only fertility treatment that would give her a reasonable chance of success would be with donated oocytes [that is to say a donated egg]. After discussion of the treatment that would be involved and the process of finding a suitable donor, the couple feel that they would like to proceed with the myomectomy in the first instance while they are locating a Donor.

I discussed this further with Professor Braude. Folashade has been placed on the waiting list for an abdominal myomectomy."

5. I understand, however, that pending a successful search for an egg donor the operation has not yet taken place. No egg donor has yet been found. The process of egg donation is notoriously more difficult than sperm donation. A year has passed without any egg donor having been found, as I have already said, and there is no evidence before me as to the chances, or likelihood, of an egg donor being found in the near future, or at all.
6. The position is, therefore, that the only treatment with a reasonable chance of success is uncertain, and even if an egg donor were found the results would be uncertain. Article 8 is qualified by Article 8.2. The Home Secretary is entitled to maintain immigration controls and to make orders and take measures that interfere with the respect for family life in order to maintain immigration control. It is clear from decisions in the House of Lords and below that the burdens on a person seeking to obtain leave to remain in this country on Article 8 grounds is very high.
7. Mr Harris submitted that this case differs from other cases in that what was sought was leave to remain for a limited period so as to enable the fertility treatment to be completed. However, there is no evidence as to what that period would be, indeed if any period can sensibly be determined as at the present time. In any event, however, one has to place the position of Mr and Mrs Erimako, distressing though it may be, in the context of other cases involving immigration control, cases in which persons with life-abbreviating illnesses, or life-threatening illnesses have been held not to be entitled to remain in this country, notwithstanding the discrepancy between medical treatment available in this country and in their home country.
8. Given the circumstances of this case, Mr Harris accepted that, in effect, his submission was that a person or persons in this country, otherwise without any right to remain in this country, should be entitled to remain in this country in order to undertake fertility treatment. That is a contention that I am unable to accept. It cannot be the case that the Home Secretary is under a duty to grant leave to remain, even for a limited period, in such cases, and, in particular, in a case such as the present where the prospects of Mr and Mrs Erimako are regrettably uncertain.
9. In those circumstances, as much as I sympathise with their position, it seems to me that there is no basis to interfere with the decision of the Home Secretary. The application for judicial review is therefore dismissed. Are there any supplemental claims?
10. MR HARRIS: No.
11. MR JUSTICE STANLEY BURNTON: Thank you, Mr Harris. I appreciate the concision with which you put forward the claim.
12. MR HARRIS: I am grateful.
13. MR JUSTICE STANLEY BURNTON: I express my sympathy. I can do no more. Thank you both very much.