N (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)

The House of Lords considered whether deporting an HIV positive Ugandan woman would breach Article 3 of the European Convention on Human Rights. The court reviewed and applied Strasbourg jurisprudence, principally D v United Kingdom, and concluded that Article 3 does not in general require a contracting state to admit or retain aliens so they may continue to benefit from medical treatment available in the expelling state. The correct focus is the applicant's present medical condition: only in very exceptional cases — essentially where the illness has reached an advanced or terminal stage and there is no prospect of appropriate medical or family support on return — will removal breach Article 3.

Applying that test, the House held that the appellant's condition, although serious and stabilised by treatment in the United Kingdom, had not reached the critical stage required by the Strasbourg line of authority and that adequate treatment was in principle available in Uganda (albeit at cost). The appeal was dismissed.

The appellant, a Ugandan national, arrived in the United Kingdom seriously ill with HIV/AIDS. Treatment in the United Kingdom restored and stabilised her health; without continued antiretroviral therapy she would face rapid deterioration and likely death within a short period. The Secretary of State refused asylum and sought to deport her. The adjudicator accepted that removal would breach Article 3 and allowed the appeal; the Immigration Appeal Tribunal allowed the Secretary of State's appeal; the Court of Appeal (majority) dismissed the appellant's Article 3 claim; the case proceeded to the House of Lords.

(i) Nature of the claim: The appellant sought to prevent deportation to Uganda on the ground that removal would amount to inhuman treatment contrary to Article 3 ECHR because continuation of the life-prolonging treatment she received in the United Kingdom would be at risk.

(ii) Issues framed:

• Whether Article 3 obliges a contracting state to admit or allow an alien to remain to receive medical treatment which is insufficiently available in the receiving state.
• How the Strasbourg decision in D v United Kingdom and subsequent case-law should be interpreted and applied to HIV/AIDS cases.
• Whether the appellant's facts amounted to the "very exceptional" circumstances required to engage Article 3.

(iii) Reasoning and outcome: The House emphasised the requirement under section 2(1) of the Human Rights Act 1998 to take Strasbourg case-law into account and analysed the subsequent European Court of Human Rights decisions. The court identified the controlling test as whether, in view of the applicant's present medical condition, removal would expose the applicant to inhuman or degrading treatment; that test is met only in very exceptional circumstances, typically where the illness is in an advanced or terminal stage and there is no prospect of adequate medical or family support on return. The House found the appellant's condition stable and fit to travel, and accepted that treatment was in principle available in Uganda, so the exceptional threshold was not met. The appeal was dismissed. The House also noted that, although Article 3 did not forbid removal on these facts, the Secretary of State retained broad administrative discretion to exercise mercy or grant leave to remain.

Appeal dismissed. The House held that Article 3 does not, as a general rule, require a contracting state to admit or retain aliens so that they may continue to benefit from medical treatment available in the expelling state; only in very exceptional cases — essentially where an applicant's illness has reached an advanced or terminal stage and there is no prospect of appropriate medical or family support on return — will removal breach Article 3. On the facts the appellant did not meet that high threshold.

Secretary of State refused asylum (28 March 2001). Adjudicator (10 July 2002) accepted that removal would breach Article 3 and allowed the appeal. Immigration Appeal Tribunal allowed the Secretary of State's appeal (20 February 2003). Court of Appeal [2003] EWCA Civ 1369 (reported [2004] 1 WLR 1182) dismissed the applicant's Article 3 claim by majority. Appeal to the House of Lords: [2005] UKHL 31 (this judgment).