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United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> G v Secretary of State for the Home Department (DR Congo) [2003] UKIAT 00055 (22 August 2003)
URL: http://www.bailii.org/uk/cases/UKIAT/2003/00055.html
Cite as: [2003] UKIAT 55, [2003] UKIAT 00055
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Heard at:
Field House
Decision number:
[2003] UKIAT 00055 G (DR Congo)
Heard on:
30th July 2003
Appeal number:
Date typed:
31st July 2003
Date promulgated:
22nd August 2003
Before:
MS. D. K. GILL (CHAIRMAN)
MR. M L JAMES
MR. ANVER JEVANJEE
Between:
Appellant
And
Respondent
Representation:
For the Appellant: Ms. M. Halfpenny, of Immigration Aid Unit.
For the Respondent: Mr. B. O'Leary, Senior Home Office Presenting Officer.
1. The Appellant is a national of the Democratic Republic of the Congo (formerly Zaire) (DRC), aged about 31 years. She arrived in the United Kingdom on 2nd April 2002. She has appealed, with leave, against the determination of Mr. J P McClure, an Adjudicator, who (following a hearing on 28th February 2003 at Aldine House Manchester) dismissed her appeal on asylum and human rights grounds against the Respondent's decision of 22nd May 2002 to give directions for her removal to the DRC as an illegal entrant.1.2 The Appellant's asylum claim was certified. The Adjudicator upheld the certificate. Accordingly, the appeal before us relates only to the Appellant's human rights appeal.
2. The issue before us is whether, given the Appellant's medical condition, her removal would be in breach of her rights under Article 3 and Article 8 (physical and moral integrity). She is an HIV sufferer.
3. At paragraphs 40 and 41 of the Determination, the Adjudicator referred to the Tribunal's Determination in the case of Tientcheu [2002] UKIAT 05877, where the Tribunal considered the availability of treatment for those suffering from HIV / AIDS in the Republic of Congo.
4. It is apparent, from paragraphs 40 and 41 of the Determination, that the Adjudicator placed reliance on Tientcheu when considering whether treatment would be available in the DRC (he made specific reference to the observations in that case as to the availability of hospital beds for those suffering from HIV). However, that case concerned a different country. It concerned the Republic of Congo, which has its capital in Brazzaville, as the first sentence of that Determination makes clear. The Appellant is, as we have stated, from the DRC, with its capital in Kinshasa, and she would be returned to the DRC.
5. At the hearing before us, it was common ground that the Determination could not stand, for the reason given above.
6.1 Ms. Halfpenny referred us to the medical evidence. The Appellant's CD4 count is about 220. She is on anti-retroviral treatment but is shortly expected to change her medication. Ms. Halfpenny asked us to consider the Appellant's present condition, the effect of withdrawing the treatment she is currently receiving and the support she is currently getting. As her health worsens, she becomes more and more reliant on the support she is receiving. She submitted that the United Kingdom has assumed responsibility for her. She is not responding well to her current treatment and, in a few months' time, she is expected to undergo a change in her treatment.
6.2 The Appellant has an unusual type of infection, with low blood platelets. She is at risk of secondary infection (which means that she is at risk of infections such as tuberculosis) and therefore at risk of bleeding to death (page B8 of the Appellant's bundle refers).
6.3 Although the Appellant is from Kinshasa, it was Ms. Halfpenny's understanding that she has lost contact with her family members. At the time of her departure from the DRC, her mother and step-father were in Kinshasa, as well as her son. Her son was living with relative. According to her witness statement, her brother fled the DRC and her sister has been killed. Her father is dead. She has friends in Kinshasa, but, in Ms. Halfpenny's submission, there was no guarantee that they would be willing or able (financially and otherwise) to support someone who is suffering from her illness. Furthermore, HIV is stigmatised in the DRC (pages H15 to H33, in particular, H17, refer).
6.4 The DRC is a country which has been through several years of war and on-going strife. It is still war-torn. There is a complete absence of medical treatment. Millions of people are displaced. There is a lack of shelter, a lack of food and a lack of basic necessities. Even before the conflict, the health system was already failing to provide health care, as is evidenced by the CIPU Report. The system appears to have completely disintegrated now.
6.5 Ms. Halfpenny referred us to various documents in the Appellant's bundle (for example, pages H1, H5, H14), which she submitted show that treatment for HIV is not valuable in the DRC. Page H14, which is a document from Oxfam, states that 2.5 million people in Kinshasa live on less than US$ 1 per day. This means that the Appellant would not be able to purchase the drugs which she needs. Since the Appellant is not going to be removed imminently, her reliance on the support she receives in the United Kingdom will increase.
6.3 Paragraph 4.38 of the CIPU Report states that anti-retroviral drugs can be purchased from private individuals. In Ms. Halfpenny's submission, this means that the medication would only be available on the black market and does not amount to "access" to medication. Furthermore, she requires care and sophisticated monitoring.
7.1 Mr. O'Leary did not dispute that the DRC is in a state of war. However, the DRC is a large country and the war is in the eastern part of the country. The documents to which Ms. Halfpenny had referred relate to the eastern part of the DRC. These documents were therefore not relevant to the Appellant's claim, because she would be returned to Kinshasa. Kinshasa itself has not seen conflict since 1998.
7.2 Page H14 refers to an inability of the local population to purchase medical treatment or drugs. However, according to the judgement of the Court of Appeal in ex parte K, an inability to purchase drugs does not means that a claim under the ECHR can succeed.
7.3 Mr. O'Leary referred us to the judgement of the European Court of Human Rights (ECtHR) in D v. United Kingdom. He submitted that the Appellant does not fall within this exceptional category.
8.1 In reply, Ms. Halfpenny submitted that the applicant in ex parte K was from Uganda. There was clear evidence in that case that treatment was available in Uganda, although the applicant would not be able to afford the treatment. On the other hand, the CIPU report for the DRC states that anti-retroviral drugs are available from private individuals, which means that the Appellant would have to pay black market prices in order to obtain them. It cannot be said that the Appellant would be able to "access" medication if the medication is only available through private individuals. The opening sentence in paragraph 4.38 of the CIPU report states that, in general, there is no medical treatment or care available for persons suffering from AIDS in the DRC. Some of the drugs she requires have only just become available in the United Kingdom. They would not be available in the DRC. In the D case, it was recognised that the applicant had a close relative in St. Kitts but there was no guarantee that that person would undertake the care of the applicant. People who cannot even feed themselves in the DRC would not undertake the care of the Appellant. To withdraw the treatment and support which the Appellant has been receiving in the United Kingdom would make her situation worse than if she had never received it in the first place.
8.2 Paragraphs 3.8, 5.39 and 5.40 of the CIPU report show that it is dangerous for women to move about in Kinshasa at night. The Appellant is therefore a very vulnerable young person who would be at risk even in moving around freely. By the time removal takes place, she would be even more vulnerable.
9. We reserved our determination. We have decided to dismiss the appeal. We now give our reasons.
10. As stated above, it was common ground that the Adjudicator's Determination cannot stand. We therefore consider the Article 3 and Article 8 claims ourselves. It is trite law that we are entitled to take into account all of the evidence placed before us, to reach a decision.
11.1 With regard to the Appellant's medical condition and the medical treatment and care she needs, we note that.
(i) The letter at page B8 from Dr. F J Vilar, Consultant Physician, shows that she was diagnosed as being a HIV sufferer in April 2002, when her CD4 count was 210. The normal range is between 500 and 1500. Her main problem was bleeding - secondary to very low platelets (clotting cells). With treatment, her CD4 count increased to 320. According to the letter dated 5th February 2003 (page B9), Dr. Vilar states that her CD4 count was slightly lower than previously, at 220. The letter from Dr. Vilar at page G1, however, indicates that her CD4 count in March 2002 was 492.
(ii) The Appellant is currently taking her second combination of drugs called Trizivir (Abacavir, Lamivudine and Zidovudine). She is already developing evidence of drug failure. This is very suggestive that she is starting to have virological failure. This would mean that she would need to have a complete switch of the drugs she is taking and commence her third combination. The time scale Dr. Vilar gives for the Appellant's switch to her third regime is before the end of the current year.
(iii) The drugs she is likely to need as her third combination will include medications such as Tenofovir, Kaletra and Didanosine.
(iv) As is so often the case with HIV sufferers, the medical evidence before us shows that the Appellant needs medication as well as specialist monitoring. She is more unfortunate. Dr. Vilar describes her as one of the unlucky patients who has developed drug failure.
11.2 If the Appellant does not receive the medication and specialist mentoring that she needs, then Dr. Vilar states (page B8, letter dated 30th October 2002) that she would be "most likely" to have the problem with low platelets again, which could lead to life-threatening bleed, her CD4 count will continue to drop and she "will inevitably catch AIDS and die". Her condition will lead to death in the short to medium term. At page G1, Dr. Vilar states that doctors who look after HIV patients without adequate experience have higher mortality on these patients than experienced doctors.11.3 With regard to the availability of treatment, we note that.
(i) Dr. Vilar states (page G1) that he is not aware that the Appellant's second combination will be available anywhere in Africa and but states that Abacavir in particular will not be available.
(ii) In relation to the third combination, Dr. Vilar states that Tenofovir is only very recently available in the United Kingdom and is not available in developing countries; he does not think that Kaletra is available in the DRC and he says that Didanosine is likely to be available at high cost in the United Kingdom.
(iii) There is a letter at pages G2 to G4 from a Ms. L. Shentall, who is a Specialised Service Manager for George House Trust. She states that it is her experience that the drugs comprised in the third combination which the Appellant would receive, as well as the combination she is currently taking, are not available in the DRC at all. Nor, she says, would the Appellant receive medical care which she says must be administered correctly. However, we do not know what Ms. Shentall bases her opinion as to availability on, save that she attached, by way of Appendix 2 to her letter, various documents about the DRC. Almost all of these documents relate to the war-striven areas of the DRC. The only exception is the document at pages G12 and G13, which mentions the efforts of the DRC government to combat AIDS/ HIV amongst police officers and the army. These documents do not assist the Appellant's case.
For these reasons, we are not prepared to place much reliance on Ms. Shentall's letter.
(iv) Ms. Halfpenny referred us to various documents in the Appellant's bundle, to support her assertion that the medication and care which the Appellant would need would not be available in the DRC. However, we agree with Mr. O'Leary that these documents do not assist the Appellant's case because they relate to the situation in the war-striven parts of the DRC. For example:
- page H1 refers to Bukavu, which is right on the border with Rwanda, which is at the heart of the contested area in the civil war. Furthermore, this report states that the area is war-torn, which Kinshasa is not.
- pages H15 and H17 (which refer to stigmatisation and the medical consequences) also relate to the war-torn area in eastern DRC. This is evident from the fact that the document refers to Kinyarwanda-speaking attackers. Kinyarwanda is the language of Rwanda.
- pages H17 and H18 again refer to soldiers and militiamen.
Against this, we note that:
(v) The CIPU Report (paragraph 4.38) states that, in general, there is no medical treatment or care available in hospitals and clinics from people suffering from AIDS in the DRC. There are no specialised hospitals or centres for the treatment of AIDS but some hospitals in Kinshasa admit AIDS sufferers for the treatment of secondary infections. However, drugs imported from Europe can be bought from private individuals. The treatment is based on the Tri-therapy of the combination of three of the following drugs: Retrivir, AZT, DDI, Zerit and Stavidine.
11.4 In order to determine whether the Appellant's removal would engage her rights under Article 3, we need to consider the decision of the European Court of Human Rights (ECtHR) in Bensaid v. The United Kingdom [2002[ INLR 325. We think it necessary to repeat what the court said at paragraph 40 of the judgement.
40. The Court accepts the seriousness of the applicant's medical condition. Having regard however to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standard of Article 3. It does not disclose the exceptional circumstances of the D. case (cited above) where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St. Kitts.
In Bensaid, the Court also decided that removal would not breach Article 8 of the Convention.
11.5 Although we acknowledge that the Appellant's condition appears to be worse than many other HIV sufferers, it has to be borne in mind that she has not developed full-blown AIDS. We appreciate that the combination of drugs comprising her second combination are not specifically mentioned in paragraph 4.38 of the CIPU report as being available from private individuals. However, she would be able to obtain some anti-retroviral treatment, albeit from private individuals. This is, of course far from ideal and may well mean that she would have to pay a high price for them. However, we consider that it does still mean that she will have access to medication. We bear in mind that there is a real risk that a switch in her medication from the second combination which she is taking or, indeed, from the third combination, to the medication which is available in the DRC would result in her condition deteriorating. We recognise that page H14 of the Appellant's bundle states that 2.5 million people in Kinshasa live on less than US$ 1 per day. We do not know the total population of Kinshasa but we have no reason to doubt that a very high proportion of the population in Kinshasa live on very small earnings. However, a claim under the ECHR cannot succeed on the basis of an inability to pay for treatment. We accept that general living conditions in the DRC are very difficult. We accept that, in Kinshasa, the Appellant will not have access to the sophisticated monitoring which she receives in the United Kingdom. Indeed, the likelihood is that her condition will not be monitored adequately, if at all. However, if the Appellant does develop secondary infection, then the CIPU report states that some hospitals in Kinshasa admit AIDS sufferers for the treatment of secondary infections. There is no reason to suppose that she would not be able to receive treatment for secondary infection. We have no reason to doubt that the withdrawal of the treatment and support which the Appellant receives in the United Kingdom will make her condition worse than if she had never received it in the first place.11.6 We agree with Mr. O'Leary that the Appellant's case falls far short of the circumstances of the applicant in D v. U.K. for the following reasons.
(i) In the D case, the applicant's CD count was at 10 and had been at that level for 18 months. On the other hand, the Appellant's CD count is at about 220.
(ii) In the D case, the applicant had full blown AID with a life expectancy of 8 months even with medication. On the other hand, the Appellant has not developed full-blown AIDS.
(iii) In the D case, the applicant had been suffering from secondary infection, with bacterial infections, and weight loss and fatigue. He was clearly weak and close to death. Indeed, death was imminent. On the other hand, the Appellant has not reached that stage. Although she might suffer from secondary infection if she is taken off her medication, her case cannot be compared to that of the applicant in the D case.
(iv) In the D case, there was no treatment available for the applicant in St. Kitts. In this case, there is some treatment available in Kinshasa. Drugs can be purchased from private individuals, although this is not ideal. Some hospitals in Kinshasa admit patients for the treatment of secondary infection. In so far as support is concerned, the Appellant said at the hearing before the Adjudicator that she has friends in Kinshasa. Ms. Halfpenny informed us that it was her understanding that the Appellant has lost contact with her family in Kinshasa. However, this has not been adduced to us by way of evidence, as such. In any event, she has friends, by her own evidence. There is no reason to suppose that they would not be willing or able to assist her. We recognise that the applicant in the D case had a close relative in St. Kitts and that the ECtHR recognised that there was no guarantee that that person would undertake the care of the applicant. However, the applicant in that case was in a very serious state. The Appellant's condition is very far removed from that.
11.7 We would make clear that we take into account the fact that, by the time the Respondent is able to effect returns to the DRC, the Appellant's condition is likely to deteriorate and that, consequently, her reliance on the support which she receives is likely to increase. However, given that her present condition is far removed from the applicant in the D. case, that she would be able to access some medication (albeit from private individuals) and that she would be able to obtain treatment for secondary infection, we are not satisfied that her removal would be reasonably likely to result in her condition deteriorating to such an extent that the high threshold for a breach of Article 3 would be reached.12.1 We now turn to consider the Article 8 claim, physical and moral integrity. As we have said, there is a real risk that a switch in the Appellant's medication from the second combination which she is taking or, indeed, from the third combination, to the medication which is available in the DRC would result in her condition deteriorating. We proceed on the assumption that her condition would deteriorate to the extent that her rights under Article 8(1) are engaged. We therefore consider whether the interference of her rights under Article 8(1) (by way of her removal to the DRC) would be proportionate under Article 8(2) – there being no issue as to whether the interference would be in accordance with the law, whether the reason for the interference comes within one of the (exhaustive) list of reason in Article 8(2).
12.2 Neither party at the hearing before us actually addressed us on proportionality, although Ms. Halfpenny said in opening that she relied on Article 8. We consider proportionality on the evidence before us.
12.3 Our observations in paragraph 11.5 above apply in the consideration of proportionality. We do not repeat those observations but make it clear that we take them into account.
12.4 We also take into account the fact that immigration control is a very weighty consideration. Not only is it the case that this has consistently been mentioned by the Tribunal in several cases, it is also clear, from paragraph 54 of the judgment in D v. U.K., the importance which the ECtHR places on a State's right to control immigration. We consider it appropriate to set out paragraph 54 of the judgement.
Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain on the territory of a Contracting State in order to continue to benefit from medical, social and other forms of assurance provided by the expelling State during their stay in prison.
(our emphasis).
12.5 Although the reference in paragraph 54 of the judgement was to the receipt of medical services and other benefits by aliens whilst serving a prison sentence in the expelling country, we consider that the principle is applicable by analogy where aliens receive medical treatment in the United Kingdom whilst waiting for a resolution of their immigration status. Where removal has been found not to be in breach of Article 3, the immigration status of an individual whilst receiving medical treatment in the United Kingdom which then forms the basis of a claim under Article 8 is a relevant consideration. However, it will be relevant also to bear in mind any delay on the part of the State in reaching a decision on that person's application for leave to remain in the country.12.6 In this particular case, we note that the Appellant arrived in the United Kingdom on 2nd April 2002, claiming asylum on the same day. In the same month, she was admitted into hospital. The letter from Dr. Vilar (page B8) states that her main problem at that time was "bleeding - secondary to very low platelets (clotting cells)". This suggests that she was already quite ill at that stage. She has been receiving treatment ever since. This means that, for almost the entire period since her arrival in the United Kingdom, she has been receiving treatment as a person whose immigration status was uncertain. The decision by the Secretary of State on her application for asylum was made on 22nd May 2002 – that is, less than two months after her arrival. These are relevant considerations in deciding whether the interference with her Article 8(1) rights strikes a fair balance between the demands of the general interest of the community and the rights of the individual. We consider that the wider interests of the community in maintaining immigration control is a very strong factor in this particular case.
12.7 We would make clear that, in our consideration of the Article 8 claim, we have taken into account the fact that, by the time the Respondent is able to effect returns to the DRC, the Appellant's condition is likely to deteriorate and that, consequently, her reliance on the support which she receives is likely to increase. However, we also take into account the fact that the difficulty in effecting removal in this case is caused by a combination of two factors – firstly, the fact that the Appellant arrived in the United Kingdom without valid travel documents; and secondly, the fact that there are difficulties at present obtaining travel documents from the DRC Embassy in London.
13. For all of the above reasons, we are satisfied that the Appellant's removal would be proportionate to the legitimate aim of immigration control.
Decision
The appeal of the Secretary of State is DISMISSED.
Ms. D. K. GILL
Vice President Date: 8th August 2003