Scottish Court of Session Decisions

Pursuer: Forrest, Advocate; Drummond Miller LLP

Defender: Olsen, Advocate; Office of the Solicitor to the Advocate General

7 June 2011

[1] This petition is for judicial review of a determination dated 2 November 2010 by the UK Border Agency exercising powers on behalf of the Secretary of State for the Home Department. The determination is to the effect that certain further submissions do not amount to fresh asylum or human rights claims in terms of the Immigration Rules (HC 395 as amended) Rule 353.

[2] The petition was lodged on 1 February 2011. At the first hearing on 12 May 2011 counsel for the petitioner moved me to sustain the petitioner's plea and to reduce the Border Agency determination of 2 November 2010. The motion was opposed by counsel for the Advocate General on behalf of the Secretary of State, respondent. He moved me to sustain the respondent's plea and to dismiss the petition. Having heard parties' submissions and made avizandum I have formed the opinion that the respondent's motion should be granted and that the petition should be dismissed.

The issue
[3] The petitioner is a 58 year old Zimbabwean grandmother who over-stayed a visitor's visa in May 2008. Ten months later on 20 March 2009 she claimed asylum. After a number of proceedings, mostly and ultimately unsuccessful, she became rights of appeal exhausted on 30 April 2010. By letter dated 21 October 2010 her solicitors made further submissions to the Border Agency Further Submissions Unit.

[4] Rule 353 appears to contemplate that the Border Agency decision maker will consider any further submissions and decide whether to accept or reject them. I say this because Rule 353 provides that if the further submissions are rejected, the decision maker must then determine whether the further submissions amount to a "fresh claim", that is, in effect, whether there are grounds of appeal to an Immigration Judge [MA (Iran) v Secretary of state for the Home Department [2011] CSOH 8 (19 January 2011) at §§ 17, 48-57].

[5] Neither in the present case nor in any other Rule 353 case which I have seen has it been clearly documented that the further submissions have been rejected. The decision letter in the present case - typically - moves straight to the fresh claim issue. If I am right about the structure of Rule 353, this way of doing things will sooner or later lead to a challenge.

[6] However, the challenge in the present case is, as usual, to the second-stage decision, which determines that the further submissions do not amount to a fresh claim. The basis of the determination is that the submissions "taken together with the previously considered material" do not "create a realistic prospect of success" before an Immigration Judge.

[7] Parties are agreed that the traditional Wednesbury test for the lawfulness of administrative decision-making plus "anxious scrutiny" applies to this determination [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680; MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193 (4 March 2011) at §§ 3-16; KD (Nepal) v Secretary of State for the Home Department [2011] CSIH 20 (16 March 2011) at §§ 6-7].

[8] The challenge is actually quite limited. For the most part the determination is accepted by the petitioner. Originally her further submissions sought leave to remain on asylum grounds, on Arts. 2 and 3 ECHR grounds and on Art. 8 ECHR grounds. The challenge in the present petition is only to the Border Agency determination of the Art. 3 ECHR and Art. 8 ECHR grounds. Now counsel for the petitioner has restricted his oral submissions to the Art. 3 ECHR ground insofar as it relates to the petitioner's health.

[9] The health-related Art. 3 ECHR ground is: "[the petitioner's] medical condition is such that it would be unduly harsh to return her to Zimbabwe" [letter from Loughran Barnes, solicitors, to UK Border Agency, 21 October 2010, Production No 6/4, page 2].

[10] The petitioner is HIV positive. She was diagnosed as HIV positive possibly in 2000 and by March 2002 at latest. A report from the consultant physician currently overseeing the petitioner's treatment in Glasgow formed part of the further submissions [report by Dr Andrew Seaton, 8 October 2010, Production No 6/5].

[11] The report, at page 1, states that the current antiretroviral therapy was initiated for the petitioner in July 2010 consisting of daily doses of four drugs including Darunavir (a protease inhibitor [PI]) 800 mgs.

[12] The report concludes, at page 2:

"[The petitioner] currently receives a complex antiretroviral regime which requires constant monitoring and review, and it would be of extreme concern should she be returned to a country with a health system that is not equipped to manage drug resistance and complex HIV issues. I am sure that this would be the case should she be returned to Zimbabwe.

I would, therefore, strongly support her ongoing care in a UK based HIV clinic. Given the advanced nature of her HIV infection and the previous serious and life-threatening opportunistic infections (including HIV encephalopathy), I think that should her HIV therapy be compromised, her chances of survival would be slim, certainly with a less than fifty per cent chance of survival in 5 years".

[13] The further submissions also included highlighted excerpts from the UK Border Agency Country of Origin Information Report [COIR] for Zimbabwe dated 30 September 2010 [Production No 6/6]. The COIR states that 1.1 million Zimbabweans are living with HIV [§ 25.23]; that over 215,000 Zimbabweans are in receipt of antiretrovirals [§ 25.26]; that treatment is available across Zimbabwe at a cost of $US 16-20 for a month's supply (unless subsidised by charities or mission hospitals) [§§ 25.27, 25.34]; and that persons returning to Zimbabwe who are already receiving treatment are given priority access to treatment [§ 25.30].

[14] The COIR lists the antiretrovirals available, from public and private sources, in Zimbabwe [§§ 25.35, 25.36]. The available antiretrovirals include three of the four drugs making up the petitioner's present daily regime. The lists of drugs do not include Darunavir, at least by that name. The lists do include other PIs.

Submissions for the petitioner
[15] Mr Forrest, counsel for the petitioner, presented a well-focused argument in relation to the Art. 3 health issue. He submitted that the Border Agency determination is flawed on Wednesbury grounds for the reason that the decision maker had left out of account the material fact that the PI Darunavir is not available in Zimbabwe.

[16] Counsel submitted that paragraph 25 of the determination effectively dismisses Dr Seaton's conclusions on the basis that Dr Seaton did not profess expertise as to the situation in Zimbabwe; and that paragraph 32 of the determination refers to the COIR findings as to the situation in Zimbabwe only as a matter of generality, stopping short at COIR paragraph 25.32.

[17] The critical information about specific drug availability, counsel submitted, is in COIR paragraphs 25.35 and 25.36: the decision maker had neglected to address Dr Seaton's evidence about the petitioner's particular HIV therapy; and had failed to acknowledge that one component of the therapy required to suppress the virus in the petitioner's case is not available in Zimbabwe.

[18] These matters had been put fairly and squarely before the Border Agency decision maker by the solicitors' further submissions letter dated 21 October 2010 [Production No 6/4] which, at page 2, stated:

"[The petitioner] takes four drugs, of which only three are available in Zimbabwe. The fourth drug, Darunavir, is not listed as being available in the latest COIR, and we enclose a highlighted copy for your attention. This medication is essential to our client's health and well-being. Its lack of availability in Zimbabwe, we would submit, makes it impossible to return our client to Zimbabwe."

[19] Counsel acknowledged that the test for granting leave to remain on health-related Art. 3 ECHR grounds is a high one [N (Uganda) v Secretary of State for the Home Department [2005] 2 AC 296; N v United Kingdom (2008) ECHR 453]. At this stage, however, the procedural test is only whether there is a reasonable, that is to say, only something more than a fanciful, prospect of an Immigration Judge finding the high test on the merits satisfied [MA (Iran) v Secretary of State for the Home Department [2011] CSOH 8 (19 January 2011) at §§ 54-57].

[20] According to counsel, giving the matter anxious scrutiny means at this stage resolving ambiguities in the petitioner's favour and giving the petitioner the benefit of the doubt: on that basis it would not be fanciful to envisage the claim succeeding before an Immigration Judge taking account of the medical evidence which had been omitted from consideration by the Border Agency decision maker. The decision maker's determination should be reduced to enable the matter to be re-considered by the Border Agency on a sound basis.

Submissions for the respondent
[21] Mr Olson, counsel for the respondent, did not accept that there had been a failure to take into account a relevant matter; and, he submitted, even if the effect of refusing leave were to reduce the petitioner's life expectancy, that did not amount to inhuman treatment within the meaning of Art. 3 ECHR. The petitioner simply could not meet the standard of exceptionality on compelling humanitarian grounds that precluded removal. Submissions for the petitioner accepted that this was the test. In this connection counsel founded on N (Uganda) v Secretary of State for the Home Department in the House of Lords [supra], particularly the rubric and the opinion of Lord Nicholls of Birkenhead at paragraph 9, and on the same case in the European Court of Human Rights, N v United Kingdom [supra], particularly the judgement of the majority at paragraphs 42 to 45.

[22] N was a Ugandan citizen. She was HIV positive. She also had a serious AIDS-defining illness. If returned to Uganda she would die within a matter of months. Her Art. 3 claim was refused by the United Kingdom courts and by the Strasbourg court.

[23] Counsel submitted that the decision maker had correctly applied N v United Kingdom and had correctly concluded that there was no realistic prospect of another Immigration Judge concluding, on the information provided, that the petitioner's case was one of the "very exceptional cases" referred to in N in which leave to remain should be granted.

[24] Further, the only suggestion that the petitioner's case might be very exceptional came from her solicitors and not from her physician Dr Seaton. Dr Seaton expressed the matter in terms of "five year survival" if the petitioner's therapy were "compromised" - whatever "compromise" might mean in this context. Statistical survival rates are notoriously unhelpful as a guide to individual outcomes, said counsel, referring to Stephen Jay Gould's essay "The Median isn't the Message", Discover 6 (June, 1985): 40 (New York, 1985). In any event the risk of reduced life expectancy did not make the petitioner's case exceptional.

[25] Counsel also pointed out that on her own account the petitioner had been resident in Zimbabwe and had travelled to and from the United Kingdom several times since being diagnosed as HIV positive [Judgment of Immigration Judge Morrison, 16 July 2009, Production No 6/2, §§ 9 (i), 9 (iv) and 10 (ii)].

Decision
[26] I agree with the counsel for the petitioner that the Border Agency decision maker failed to take account of the specific point made in the further submissions letter about the non-availability of the drug Darunavir in Zimbabwe. I do not agree that this omission was material. The fact that the petitioner's life expectancy might be significantly reduced because of the non-availability of the drug in Zimbabwe would not change the decision. The decision maker asked the correct question and reached a proper conclusion on the information available.

[27] The N test is a high one. On the information before the Border Agency decision maker the petitioner could not satisfy the N test. It would be fanciful to think that an Immigration Judge exercising anxious scrutiny might conclude, on that information, that the petitioner could satisfy the test. The principles applied in N were laid down in D v United Kingdom (1997) 24 EHRR 423. In D the "very exceptional circumstances" amounting to compelling humanitarian grounds against removal were that the applicant was critically ill, appeared close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing to provide him with even a basic level of food, shelter or social support.

[28] In N in the House of Lords, at paragraph 9 of the report, Lord Nicholls of Birkenhead said:

"If the appellant were a special case I have no doubt that, in one way or another, the pressing humanitarian considerations of her case would prevail... Sadly the appellant is not a special case... As everyone knows, the prevalence of AIDS worldwide, particularly in southern Africa, is a present-day human tragedy on an immense scale... [A] common feature in all these immigration cases is that the would-be immigrant faces a significantly shortened expectation of life if deported... [the would-be immigrant's] medical condition will deteriorate rapidly and fatally if he is deported and in consequence the necessary medication is no longer available to him".

[29] In N in the European Court of Human Rights the majority held:

"§ 42... Aliens who are subject to expulsion cannot in principle claim any 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 Article 3... § 44... Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably... Article 3 does not place an obligation on the Contracting State to alleviate such disparities 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."

[30] A point against the petitioner is that, unlike N, the petitioner came to the United Kingdom in the full knowledge that she was HIV positive. The petitioner gained entry as a visitor with an obligation to depart on the expiry of her visa. It may be uncharitable but is not so obviously inhuman, certainly not within the meaning of Art. 3 ECHR, and it is in accordance with the law to require her to leave now.

[31] In conclusion, I take the view that notwithstanding the failure to give consideration to specific information about the petitioner's treatment regime, the decision cannot properly be called flawed. The matter does not require to be remitted. I shall repel the petitioner's plea, sustain the respondent's plea and dismiss the petition.