ZT v Secretary of State for the Home Department

Removal of a seriously ill person engages article 3 only in exceptional circumstances where the humanitarian considerations are compelling. The test contains no separate category based on the receiving state's responsibility for inadequate healthcare. Ostracism, humiliation or deprivation of basic rights may, when added to serious illness, make a case exceptional.

In an article 8 removal case, the same sequential inquiry applies whether the complaint concerns lost support in the United Kingdom or conditions abroad. Consequences must be sufficiently grave to engage article 8 before proportionality arises. Compliance with immigration rules may support proportionality, but non-compliance does not necessarily establish disproportionality.

The appellant, a Zimbabwean citizen, was diagnosed as HIV-positive after entering the United Kingdom as a visitor. Anti-retroviral treatment stabilised her condition, but its likely cessation on return to Zimbabwe would cause serious illness and substantially shorten her life.

An adjudicator allowed her human-rights appeal under article 3. The Immigration Appeal Tribunal allowed the Secretary of State's appeal, finding neither an article 3 breach nor a disproportionate interference with article 8. The Court of Appeal considered whether the Tribunal had jurisdiction, whether the circumstances satisfied the stringent health-case requirements of article 3, and whether removal infringed article 8.

1. Appeal dismissed. The Immigration Appeal Tribunal had jurisdiction. Although the Secretary of State's grounds were diffusely expressed, a fair reading disclosed the point of law on which the Tribunal acted: the adjudicator had failed to respect the high threshold imposed by article 3. The court should be slow to allow a case to fail on jurisdictional form where a point of law can fairly be extracted and nobody was misled.
2. Under N [2005] 2 AC 296, removal of a person receiving life-preserving treatment contravenes article 3 only in exceptional circumstances involving compelling humanitarian considerations. There is no separate legal category for cases where the receiving state's conduct contributed to the inadequacy of healthcare. Soering did not establish such a category. Nor was it legally material that the appellant became ill after entering the United Kingdom.
3. The Tribunal was entitled to compare the appellant's likely position with that of other HIV sufferers in Zimbabwe and to find that her circumstances were not exceptional. Buxton LJ nevertheless observed that ostracism, humiliation or deprivation of basic rights, added to serious illness, could potentially create an exceptional case.
4. The distinction between a domestic and a foreign article 8 case is descriptive, not juridical. Lord Bingham's five-stage inquiry in Razgar applies to every article 8 removal case. The Tribunal was entitled to find that the consequences lacked the gravity needed to engage article 8 and, additionally, that removal was not disproportionate. Article 8 may exceptionally apply where article 3 does not, but the practical threshold in medical removal cases is stringent.
5. Compliance with immigration rules may be sufficient to support proportionality, but it is not necessary. It does not follow that a decision contrary to a rule or policy is necessarily disproportionate. Ordinary provision of NHS treatment does not amount to the state's assumption of responsibility for a person's care in the relevant sense.
6. Buxton LJ, with whom the other members of the court agreed on the disposition, warned that any future removal decision must address up-to-date conditions in Zimbabwe and give the appellant's advisers proper warning. Sedley LJ agreed reluctantly. Jonathan Parker LJ agreed with Buxton LJ but did not share Sedley LJ's wider analysis of the Convention's response to practical pressures.

1. Court of Appeal (Civil Division): Dismissed the appellant's appeal and upheld the Immigration Appeal Tribunal's determination.
2. Immigration Appeal Tribunal: Allowed the Secretary of State's appeal in July 2004 and held that removal would breach neither article 3 nor article 8.
3. Adjudicator: Allowed the appellant's appeal in October 2003, finding that removal to Zimbabwe would breach article 3.