Nsubuga v Secretary of State for the Home Department

An appeal raising the interaction between Articles 3 and 8 of the European Convention on Human Rights should not be heard in isolation where the same core issue is already listed in related appeals. The Court of Appeal may stand the appeal out of the list and direct that it be heard with those appeals, enabling the issue to be addressed in one hearing and avoiding duplicated argument. The court may require counsel to coordinate authorities and written submissions. This judgment made no substantive ruling on the Article 3 or Article 8 merits.

This was an appeal from the Immigration Appeal Tribunal. Permission was granted on 5 October 2005, with expedition because the appeal raised the interaction between Articles 3 and 8 of the European Convention on Human Rights in cases involving HIV or AIDS. The issue arose in light of the House of Lords decisions in R v Secretary of State for the Home Department ex parte Razgar and N v Secretary of State for the Home Department, the latter concerning Article 3. Related appeals, including Mando and others and KM, were already listed for hearing. The central question was how the Article 8 issue should be approached.

Lord Justice Latham gave the court’s ruling. The appeal was adjourned and stood out of the list, with costs reserved.

1. The appeal raised a core issue concerning the interaction between Articles 3 and 8 of the European Convention on Human Rights in immigration cases involving HIV or AIDS. The issue had to be considered in the light of R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27 and N v Secretary of State for the Home Department [2005] UKHL 31.
2. It was inappropriate to hear the appeal before other appeals that had been listed earlier and raised the same or related issues. The appeal was therefore to be listed with Mando and/or KM, preferably so that all three appeals could proceed together.
3. The court directed counsel to liaise with one another and the Court Office concerning the estimated hearing time, a consolidated bundle of authorities, and edited skeleton arguments and other documents. Duplication was to be avoided, and the respondent’s argument was expected to focus on the core issue.
4. The court made no determination of the substantive Article 3 or Article 8 issue. The operative order was: appeal adjourned; costs reserved.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1414, the appeal was stood out of the list and adjourned for listing with related appeals; costs were reserved.
• Immigration Appeal Tribunal: The appeal was brought from a decision of the Tribunal. No citation for that decision is stated in the judgment.