N v Secretary of State for the Home Dept

Removal of a seriously ill person engages Article 3 on account of inadequate medical resources in the receiving country only in an extreme and truly exceptional case. The humanitarian considerations must be as compelling as those in D v United Kingdom.

A substantially reduced life expectancy, caused by the loss of superior treatment in the removing state, does not without more meet that threshold. Article 3 is not confined to deathbed cases, but a special feature must make the humanitarian appeal one which the authorities of a civilised state could not reasonably resist.

The appellant, a Ugandan citizen with advanced HIV/AIDS, was stabilised by anti-retroviral treatment in the United Kingdom. Medical evidence indicated that suitable treatment would be unavailable or unaffordable in Uganda and that removal would reduce her life expectancy substantially.

An adjudicator allowed her appeal under Article 3 of the European Convention on Human Rights. The Immigration Appeal Tribunal allowed the Secretary of State’s appeal, finding that treatment and some family support were available in Uganda. The appellant appealed to the Court of Appeal.

The central issues were whether the Tribunal had given legally sufficient reasons and whether, taking the appellant’s evidence at its highest, her removal could fall within the exceptional medical-removal jurisdiction recognised by D v United Kingdom.

1. Appeal dismissed by a majority. Laws LJ, with whom Dyson LJ agreed, held that the Tribunal’s reasons were legally insufficient. It had not adequately confronted the accepted medical evidence that effective treatment, even if theoretically available in Uganda, would not be available to this appellant. Its reference to family support was also inadequately explained. Ordinarily, those errors would have required remission.

2. Remission would serve no purpose because, taking the appellant’s evidence at its highest, the Tribunal would be bound to reject the Article 3 claim. The jurisdiction recognised in D v United Kingdom was an exceptional extension of Article 3. It protected a person against consequences arising from naturally occurring illness and scarcity of resources, although conditions in the receiving state would not themselves violate Article 3.

3. That jurisdiction had to be strictly confined. It was not limited by a rigid rule to applicants already on their deathbeds. Nevertheless, the facts had to be extreme and the humanitarian appeal so powerful that the authorities of a civilised state could not reasonably resist it. A difference in medical standards, or even a substantial reduction in life expectancy following removal, was insufficient without a special feature producing humanitarian considerations as compelling as those in D.

4. The appellant was stable while receiving treatment and had a reasonable life expectancy in the United Kingdom. Removal would probably reduce her life expectancy to about two years and expose her to a painful and distressing death. Her position was nevertheless similar to that of many persons with HIV/AIDS who would lose effective treatment on returning to developing countries. It lacked the special feature required by the stringent Article 3 threshold.

5. Carnwath LJ dissented. He considered that the relevant circumstances—including the assumed responsibility for treatment, the advanced illness, the dramatic reduction in life expectancy and the absence of effective family support—had to be weighed cumulatively. The evidence did not permit the Court of Appeal to say that only one conclusion was reasonably open. He would have allowed the appeal and remitted the case for a properly reasoned determination.

1. Court of Appeal (Civil Division): By a majority, dismissed the appellant’s appeal in [2003] EWCA Civ 1369. Although the Tribunal’s reasons were deficient, the Article 3 claim was legally incapable of succeeding on the evidence.
2. Immigration Appeal Tribunal: On 20 February 2003, allowed the Secretary of State’s appeal and rejected the appellant’s claim under Article 3 of the European Convention on Human Rights.
3. Adjudicator: In a determination promulgated on 10 July 2002, dismissed the asylum claim but allowed the appeal under Article 3. The adjudicator found that the necessary treatment would not be available in Uganda.
4. Secretary of State: On 26 April 2001, refused the appellant leave to enter the United Kingdom.