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Cite as: [2004] UKIAT 181, [2004] UKIAT 00181

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APPEAL No. LS (Zambia, Article 3 /HIV/ 'N' followed) Zambia [2004] UKIAT 00181

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 27 April 2004

Date Determination notified: 22 June 2004

Before

Mr. A.R. Mackey - Chairman

Mrs. L.R. Schmitt

Between

LS	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Ms. L. Longhurst-Woods, of Counsel Representing Greenland Solicitors, London.

For the Respondent: Mr. J. McGirr, Home Office Presenting Officer.

DETERMINATION AND REASONS

The Appellant is a citizen of Zambia who appeals with permission against the Determination of an Adjudicator, Ms. M.E. Lewis, promulgated 26 June 2003 wherein she dismissed an appeal against the decision of the Respondent who had refused exceptional leave to remain and a human rights application.

The Appellant was born in 1964. She arrived from Zambia in the United Kingdom in June 1999 with an entry clearance for a shopping visit. In December 1999 she submitted an application for an extension to remain on medical grounds stating that she had been recently diagnosed as HIV positive.

The Adjudicator's Determination

This matter was heard in June 2003 prior to the leading Determination of the Court of Appeal in N v Secretary of State for the Home Department [2003] EWCA Civ 1369 which was published on 16 October 2003. Detailed reference and guidance from that Determination, which is followed by us, is set out later in this decision.

The Respondent, produced to the Adjudicator a medical bulletin on HIV/AIDS treatment in Zambia dated October 2002 and also relied on the Determination in K v Secretary of State for the Home Department [2001] Imm AR 11. Medical evidence was provided by the Appellant, the full details of these are set out in paragraphs 5.2 and 5.3 on the Adjudicator's Determination.

The Appellant gave evidence that she arrived on a six month visa in June 1999 and two weeks after arrival she was concerned about serious diarrhoea. She visited a general practitioner and this led to the diagnosis of HIV. Her son had not travelled with her. However she stated that her son's father had "dumped him on my doorstep on 19 July 2002". The Appellant also stated that she had nobody in Zambia; her most recent partner had died two years earlier. Her father died in 1990 and her mother in May 2003. She stated that the father of the child was married to someone else and had other children. She also had no way of contacting him and if she returned to Zambia could not rely on him to look after their 11 year old son. In Zambia she has been employed as a nurse/midwife but did not consider that she could resume that work given her HIV status.

Ms. Longhurst-Woods, who also appeared before the Adjudicator, submitted that the Appellant required a complex combination of drug treatment as confirmed by the report of Dr. Cath Rodgers, Consultant Physician, Guy's & St. Thomas' Hospital Trust. The Appellant had no family in Zambia and could not work on return. Also she could not be supported by her son's father and would have to continue her parental responsibilities for him. She argued that the United Kingdom had assumed responsibility for the Appellant's treatment some four years ago and therefore was obligated to continue that treatment.

The Adjudicator did not accept that the United Kingdom had assumed responsibility for the Appellant's treatment. She considered that like anybody else the Appellant was able to enter an NHS hospital and obtained treatment but that did not equate to an informed decision on the part of the Secretary of State or some other government department to assume responsibility for care. The Adjudicator also noted the report of Dr. Rodgers that stated the anti-retroviral therapy should give the Appellant normal life expectancy. However if it was stopped her physical well-being and immune deficiency would return to her baseline levels of June 1999. Dr. Rodgers had not commented on the availability of anti-retroviral therapy in Zambia nor the effects on the Appellant of having access only to Combivir or some combination of drugs that are now available in Zambia. The Adjudicator noted the Respondent's evidence, set out in the bulletin as to the availability of drug treatments, and did not conclude that return to Zambia, where the medication available may be less, would have a severe effect on her health. She stated: "I do not conclude on this evidence that the Appellant is close to death or that to return her to her home country would result in such a severe relapse as to amount to cruel or inhuman treatment".

The Adjudicator then noted the problem of cost of treatment in Zambia but found that the European Court of Human Rights, the Court of Appeal and IAT in the UK, had all consistently taken the line that, despite an Appellant not being able to afford all the treatment required, this did not amount to inhuman or degrading treatment. The Adjudicator also took into account the psychological evidence that was presented and accepted the Appellant had been very distressed by her illness and her concerns for her son. She noted that the Appellant's father clearly had an involvement in the boy's life as he was named in the birth certificate and had cared for the son for two years before he brought him to the United Kingdom. Also she noted the evidence that the Appellant had stated that she had lived with the son's father for various periods in the past, although at other times he had lived with his wife. She noted therefore that there was some form of support available, even if it was not very consistent. In those circumstances she found that the appeal must fail.

The Appellant's Submissions

A detailed skeleton argument was put forward by Ms. Longhurst-Woods which we have taken into account. In support of the submissions she refers to all of the medical and psychiatric reports including an additional report from Dr. Cath Rodgers dated 4 July 2003 and an updated psychological assessment dated 1 July 2003 from Dr. Erasmo Tacconelli, Chartered Clinical Psychologist, Haringey NHS.

The second report of Dr. Rodgers, dated 4 July 2003, was made after considering the Determination of the Adjudicator. It states:

"I reply to item 8, point 3, under conclusions and reasons in the above case.

I did not decline to comment on availability of anti-retroviral therapy in the country of origin but emphasised that I was not in a position to do so. The latter is a legal point rather than the purpose of a factual medical report. However, now that I am privy to the contents of item 7.1 in the document informing me of the anti-retroviral drugs that have been negotiated for cheaper purchase in Zambia, I can confirm that Ms. Sitima's anti-retroviral treatment is not available in her country of origin. Any combination containing just two drugs would be sub-optimal and lead to treatment failure. As only three anti-viral drugs are available, should this combination fail, Ms. Sitima would have access to no second line therapy in Zambia. All these points, taken into account, Ms. Sitima's life expectancy would be reduced considerably if she were returned to Zambia.

I would like to emphasise, for future hearings, that it is not the purpose of a medical report to ascertain the availability of anti-retroviral drugs in countries in Africa.

I hope the significance of my above comments will be taken into account at Ms. Sitima's second appeal".

The updated report of Dr. Tacconelli sets out that he had met the Appellant on seven appointments and continued to address her psychological needs. These were addressed to cognitive-behavioural therapy for depression, and HIV adjustment. It is stated that progress was limited due to the overriding concerns about her asylum appeal.

This report concludes:

"Ms. Sitima attends sessions well and appears to be benefiting so far from our contact. However, it is clear that she is stuck in her asylum situation and is unable to move on psychologically until her immigration status is addressed. It is clear that to move on psychologically, she needs security in this country. The standardised measures of her mood on two occasions (11/11/02 and 15/05/03) illustrate that only until this aspect is resolved will her mood and quality of life improve. Based on Ms. Sitima's psychological distress, her asylum appeal needs to take into account her physical and mental health. She needs stability regarding her status to feel settled and able to address her psychological issues.

I strongly recommend that Ms. Sitima's psychological presentation be considered with her asylum appeal as if she were to return to Zambia, she would not be able to afford the medical treatment for HIV, her mental health would greatly deteriorate immediately as the prognosis would with no medical intervention lead to death. Ms. Sitima is aware of this and very scared about the possibility of this happening to herself and the effect on her young son.

Ms. Sitima is a well meaning, sincere woman and devoted mother who would contribute a great amount to UK society. She has used scarce NHS services with respect and gratitude and is clearly intelligent, wishing to give something back to the country".

Also, in a further statement presented by the Appellant dated 7 July 2003, she states that the Adjudicator's finding in respect of living with the son's father was incorrect and that she had never lived with him before or after the birth of the baby, and had stated this in Court.

Ms. Longhurst-Woods went on to submit further arguments of a similar nature to those put to the Adjudicator. She submitted that the treatment required by the Appellant was simply not available in Zambia. In addition as her HIV status had been diagnosed in 1999 and she had needed a lot of therapy this country had assumed responsibility for her treatment since 1999. In addition the situation of the relationship with the son had to be considered as he would have no one to care for him when the Appellant returned to Zambia and her condition deteriorated. She submitted that the Adjudicator had not engaged with the medical evidence sufficiently and coupled this with the lack of support available to the Appellant and the plight of the Appellant's son on return.

In addition she submitted that the Respondent had not considered correctly the IND instructions in relation to the HIV/AIDS policy and that the policy had not been appropriately applied by them, despite two applications made in February and March 2000, which were supported by medical evidence. She asked us to note that it was not until 9 May 2001 that a refusal letter was received, by which time her medical condition had improved upon the treatment available at the NHS. She submitted that that refusal also did not engage correctly with the Secretary of State's policy. She acknowledged that the decision was of course one for the Secretary of State and not an issue upon which we could reach a decision.

The second refusal letter was dated 14 April 2003 and stated that Articles 2, 3 and 8 of the ECHR would not be breached if the Appellant were to be returned. She submitted that the Respondent had not taken into account a situation where no treatment was available and that in such situations it would normally be appropriate for extended leave to be granted. She submitted that had the Respondent taken into account the contents of Dr. Rodgers' reports a conclusion would have been reached that the treatment that was available in Zambia was of no use to this Appellant. In addition she asked us to note that while the case law, indicated that arguments based on the cost of treatment would not be successful, we should take into account, in the totality of this Appellant's evidence, that she had no financial support available to her.

At this point we asked if she had further instructions in relation to the statement made by the Appellant (at A12 of her statement) that she was receiving support of £450 per month. We asked where this came from and if it continued. We recognised that this statement had been made in December 1999. Ms. Longhurst-Woods advised us that she had no instructions on this point or indeed how the Appellant and her son survived and maintained themselves at this time. She stated that she could obtain the additional information if it was required.

The submissions made by Ms. Longhurst-Woods, in respect of the decision in N, were that currently leave was being requested to appeal to the House of Lords and if necessary to go to Strasbourg. She asked us to note that the factors to be taken into account from that Determination included :

(i) the advanced stage of the illness, including resistance and symptoms and the proximity of death if treatment were withdrawn,

(ii) the existence of dependent children (in this case the Appellant has her young son with her in the UK since his estranged father brought him here and abandoned him to his mother),

(iii) the lack of accommodation, livelihood, social or family support in the destination country (the evidence shows that the Appellant satisfies these criteria),

(iv) the lack of any realistic or effective programme to combat AIDS in the destination country (again the evidence is highly supportive of this).

She also referred to the case of Adei where Lord Justice Sedley had granted leave on the basis that "removal would be akin to a death sentence for this woman and something not very different for her child".

In totality she submitted that the Appellant had discharged the burden of proof upon her and that she should qualify for leave to remain.

The Respondent's Submissions

Mr. McGirr submitted that the Respondent had complied with the IND policy and that while the letter of May 2001 did not specifically refer to the policy it covered the points that were required. He asked us to note that that policy had been introduced on the basis of the well known European Court of Human Rights' Determination in D v UK and that, in this case, the Respondent had addressed the three requirements, as set out in the policy.

He also submitted that the Adjudicator had been correct in assessing the Appellant's case with reference to the medical bulletin and had taken into account the expanding range of drugs now available in Zambia.

He submitted that the Appellant's course of therapy had not changed for some time, but the medical evidence did not appear to address the ability to use other anti-retroviral drugs, that may be available in Zambia. In response to questions from us, particularly relating to Dr. Rodgers' report of 4 July 2003, he submitted that the medical report had not answered the question as to whether there were an alternative combination of drugs available which would possibly be successful for this Appellant and be available in Zambia.

He submitted that, on the evidence that was before the Adjudicator, the decision was a sustainable one. In addition to this the psychiatric report did not add substantially to the evidence that was before the Adjudicator.

He therefore submitted that we should dismiss the appeal or if, noting that it was a difficult task that was before the Tribunal, rule that the matter should be adjourned to obtain further evidence both on the resources and support available to the Appellant and whether alternative combinations of treatment, based on drugs in Zambia, could be used by the Appellant.

In reply Ms. Longhurst-Woods submitted that the full range of evidence had been available to the Adjudicator and, even though reports went back to 1996 and 1998, these were appropriate, given that the Appellant had been diagnosed in 1999. Beyond this the most recent reports from Dr. Rodgers from May and July 2003 covered her drug treatment and her CD4 count situation. In addition the psychological evidence was provided and the report from the HIV/AIDS Association of Zambia (dated 9 May 2003) explained the situation in Zambia. The report from "Blackliners" of March 2000 also had been provided.

Thus, she submitted, there had been sufficient evidence before the Adjudicator, from the time of diagnosis, to the date of hearing, upon which a sustainable Determination could have been reached.

She submitted that Dr. Rodgers' reports had shown that only two of the three drugs required by the Appellant were available in Zambia and that, without the full cocktail of three drugs, which was working for this Appellant, her treatment was clearly sub-optimal and the prognosis for her, on return to Zambia, would be that her life would be "very much shortened, in terms of months to a few years".

We referred Ms. Longhurst-Woods to the 4 July 2003 report of Dr. Rodgers, where she stated that the Appellant's anti-retroviral therapy was not available in her country of origin and that any combination containing just two drugs would be sub-optimal and lead to treatment failure. We noted she had gone on to state that as only three anti-viral drugs were available, should this combination fail, the Appellant would not have access to second line therapy in Zambia. We noted however that the medical bulletin on Zambia appeared to indicate more than three drugs being available and that the report of Dr. Rodger did not appear to indicate whether or not another combination of drugs, from those available in Zambia, could possibly work for the Appellant. We asked for her comments on this information. Ms. Longhurst-Woods submitted that, from the evidence that was before us, particularly the report of Dr. Rodgers, a change in the drug regime could lead to treatment failure and this was the risk that was faced by the Appellant. She noted that in the United Kingdom there were nine anti-retroviral drugs available and so back up or second line therapy was more likely to be achieved. This had to be compared with the situation in a Third World, country such as Zambia, where a restricted range only was available. She concluded therefore that the appeal should be allowed, particularly taking into account not only the serious prognosis for the Appellant but also her psychiatric situation and the responsibilities for her son.

We reserved out Determination.

The Issues

We found the issue before us solely whether there would be a breach of Article 3 of the ECHR to return this Appellant to Zambia at this time. In so doing, we have noted that the credibility of the Appellant is largely accepted by the parties and accordingly the Appellant's case can be assessed against her evidence at its highest and our interpretation and assessment of the range of objective and expert evidence before us.

Decision

We consider that the starting point for our assessment must be the jurisprudence we are bound by and the application of the facts of this Appellant's case to that jurisprudence. As stated the leading Determination in England, which binds us in this case, is N v SSHD. This was a decision of Lord Justice Laws, Lord Justice Dyson and Lord Justice Carnwath (dissenting). The determinations of Laws and Dyson LJJ set out a very detailed consideration of the relevant jurisprudence, both in this country and in particular from Strasbourg. Particular reference was made to the Strasbourg Determination in D v UK where it was considered, that there would be a breach of the ECHR if D, who was suffering from AIDS, were to be returned, at that time, to St. Kitts. At paragraph 41 of the decision in N Laws LJ stated:

"But I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in the light of the considerations I have described I would hold that the application of Article 3, where the complaint in essence is of want of resources in the applicant's home country, (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised state. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all of many of which (like this one) demand one's sympathy on pressing grounds. On its facts, D was such a case. I consider that any broader view distorts the balance between the demands of the general interest of the community, whose service is conspicuously the duty of elected government, and the requirements of the protection of the individual's fundamental rights".

He went on at paragraph 43 to find that:

"In my view, the evidence for the Appellant, taken at its highest, would not bring her within the extreme class of case to which in my judgment, she must belong if her Article 3 case is good".

He also found there was no viable Article 8 claim.

In the Determination of Lord Justice Dyson he also agreed that the appeal should be dismissed for the reasons given by Laws LJ. He gives consideration to the actual Determination in D and the opinion of Judge Pettiti therein. He states at paragraph 47:

"Sadly, there are many examples of persons who enter the UK and other states from developing world countries and who suffer from HIV/AIDS. They receive sophisticated treatment here, and if returned to their countries of origin they will receive much less effective treatment, and, in some cases, no treatment at all. The anti-retroviral drugs which they receive in this country may give them a life expectancy of many years. If they are returned to their countries of origin, their life expectancy may, in many cases almost certainly will, be substantially reduced. But, tragic though all such cases are, it seems to me that it is clear from D that the ECtHR would not, without more, recognise such cases as raising humanitarian consideration so compelling as to engage Article 3. The Court would not regard such circumstances as exceptional, still less very exceptional. The fact that the applicant's life expectancy will be reduced, even substantially reduced, because the facilities of the receiving country do not match those in the expelling country is not sufficient to engage Article 3. Something more is required. I have already referred to the special circumstances which enabled the Court in D to find that Article 3 was engaged. I do not say that Article 3 will only ever be engaged where the applicant is in the last stages of terminal illness. But I consider that the class of case recognised in D as engaging Article 3 should be confined to situations where, broadly speaking, the humanitarian considerations are as compelling as they were in that case".

He then turned, in paragraph 48, to the evidence of the Appellant N and noted that as long as she remained in the United Kingdom and continued to receive treatment here she had a reasonable life expectancy. He noted that if she returned to Uganda, her life expectancy would be reduced to about two years. He also noted that if she returned to Uganda, the prospect was extremely distressing and moreover death itself was likely to be painful and distressing. In his judgment he did not consider that the Appellant would satisfy a test that the facts disclosed a situation so exceptional and so compelling that there would be a breach of Article 3. He stated:

"They enjoy sophisticated medical treatment in this country which keeps the disease at bay, and which ensures they have reasonable life expectancy. If they are returned to their countries of origin, they will be unlikely to receive medical treatment that they currently enjoy and, as a result, their life expectancies will be substantially reduced. It seems to me that if the Article 3 door is opened in such cases, it will be opened far wider than is intended by the signatories of the European Convention on Human Rights, and far wider than the Court envisaged in D. Tragic though such cases undoubtedly are, unless they have some special feature, which gives rise to particularly compelling humanitarian considerations, they do not meet the stringent requirement that they be truly exceptional in order to satisfy the Article 3 criteria. For the reasons that I have given, I do not consider that it is reasonably arguable that there is any such special feature in the Appellant's case".