SN v Secretary of State for the Home Department

Article 8 claims arising from removal to another country fall within the foreign category, even where removal also causes loss of medical treatment or other Convention-related benefits in the United Kingdom. The threshold for engaging Article 8 in such a case is a flagrant and fundamental interference with Convention rights. If Article 8 is engaged, proportionality under Article 8(2) must still be assessed in every case. A strong case is required, and only the most compelling humanitarian considerations are likely to outweigh immigration control or public safety. That formulation is a safe practical guide and does not impose a separate standard from the wider Article 8 jurisprudence.

SN, a Ugandan national suffering from HIV/AIDS, appealed against an Immigration Appeal Tribunal decision allowing the Secretary of State’s appeal from an adjudicator. The adjudicator found that the specific drug combination required by SN was unavailable in Uganda, that removal risked serious deterioration and death, and that removal would breach Article 8. The Tribunal held that the adjudicator had applied an insufficiently demanding Article 8 test, relying on Baroness Hale’s observations in Razgar. The Court of Appeal considered whether Razgar disclosed a difference between Lord Bingham’s and Baroness Hale’s approaches, and whether a removal case involving treatment received in the United Kingdom was domestic, hybrid or foreign.

1. Appeal dismissed. Lord Justice Buxton delivered the judgment. Lord Justice Sedley and Lord Justice Brooke agreed.
2. The Court rejected the argument that domestic and foreign Article 8 cases attract different legal standards. The distinction in [2005] EWCA 1421 concerned the application of the same general Convention jurisprudence, not different rules of law. The Court clarified that the terminology had been used for ease of exposition, while the categorisation identified in Ullah places all cases involving expulsion from the United Kingdom into the foreign category.
3. That categorisation is not altered because the claimant also complains of losing companionship or medical treatment in the United Kingdom. In an expulsion case, the requirement of a flagrant and fundamental breach applies to all aspects of the case. Proportionality is considered at the later stage under Article 8(2), and that inquiry applies in every case.
4. The Court found no material difference between Lord Bingham’s formulation in Razgar and Baroness Hale’s practical explanation. Lord Bingham’s reference to a small minority of exceptional cases was consistent with the conclusion that only the most compelling humanitarian considerations are likely to prevail over immigration control or public safety. Although Baroness Hale’s speech was technically dissenting, the House of Lords had divided only on the certification issue, not on the underlying Article 8 jurisprudence.
5. The Immigration Appeal Tribunal was entitled to rely on Baroness Hale’s formulation and to conclude that removal would interfere with private and family life but would not be disproportionate to the legitimate aim of immigration control. No error of law was shown.

1. Court of Appeal (Civil Division) dismissed SN’s appeal, holding that the Immigration Appeal Tribunal had applied the correct demanding Article 8 approach and had not erred in law: [2005] EWCA Civ 1683.
2. Immigration Appeal Tribunal allowed the Secretary of State’s appeal, concluding that the adjudicator had not applied a sufficiently high standard before finding removal disproportionate.
3. Adjudicator found that the required HIV treatment was unavailable in Uganda, that removal created a real risk of serious harm, and that removal would breach Article 8.