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

Article 3 does not ordinarily entitle an alien facing removal to remain in a contracting state so as to continue receiving medical, social or other assistance unavailable or inaccessible in the receiving state. Removal on medical grounds breaches article 3 only in very exceptional circumstances.

The applicant’s present condition must have reached a critical stage, with compelling humanitarian grounds against removal to a place lacking the care needed to prevent acute suffering while the applicant is dying. Reduced life expectancy, likely relapse following withdrawal of treatment, and less favourable facilities abroad do not themselves cross that high threshold.

The appellant, a Ugandan national with advanced HIV/AIDS, became stable and substantially healthier after receiving antiretroviral and other treatment in the United Kingdom. The medical evidence indicated that continued treatment could preserve her health for decades, whereas its interruption following removal to Uganda was likely to cause serious illness and death within one or two years.

An adjudicator dismissed her asylum appeal but allowed her appeal under article 3 of the European Convention on Human Rights. The Immigration Appeal Tribunal reversed that decision. The Court of Appeal held that the Tribunal had given legally insufficient reasons, but its majority nevertheless dismissed the appellant’s appeal: [2003] EWCA Civ 1369.

The issue before the House was whether removing a person whose illness was controlled by treatment in the United Kingdom, but who might be unable to obtain comparable treatment in the receiving state, would constitute inhuman treatment contrary to article 3.

1. Appeal dismissed unanimously. Lord Nicholls, Lord Hope, Lord Walker, Baroness Hale and Lord Brown concluded that the appellant’s removal to Uganda would not violate article 3 of the European Convention on Human Rights.

2. Per Lord Hope, Baroness Hale and Lord Brown, the Strasbourg authorities establish two governing principles. Article 3 is absolute and applies irrespective of an applicant’s criminality or other reprehensible conduct. Conversely, an alien subject to removal cannot in principle claim a right to remain merely to continue receiving medical, social or other assistance supplied by the expelling state.

3. Per Lord Hope and Lord Brown, the medical-removal exception represented by D v United Kingdom applies only in very exceptional circumstances. The applicant must show that the present medical condition has reached such a critical stage that compelling humanitarian grounds prevent removal to a place lacking the medical and social services needed to avert acute suffering while the applicant is dying. Baroness Hale expressed the test as whether the person is already dying and would be deprived of present care and sent to an early death without care enabling that fate to be met with dignity.

4. The inquiry focuses on the applicant’s present medical condition and must be undertaken by rigorous scrutiny using current evidence. Fitness to travel is not conclusive. Conditions in the receiving state become crucial when the illness has already reached an advanced or terminal stage. The mere prospect of inferior, costly or practically inaccessible treatment, serious relapse, or substantially shortened life does not itself satisfy article 3.

5. Per Lord Nicholls, article 3 imposes no obligation on contracting states to provide aliens indefinitely with treatment lacking in their home countries. Treatment received while an immigration application is considered does not create a Convention right to remain merely because withdrawal may cause a serious or fatal relapse.

6. The appellant’s present condition was stable, she was fit to travel, relevant treatment was available in principle in Uganda, and she retained relatives there. Although access to treatment was doubtful and interruption was likely to lead to an early death, she was not presently in the critical or terminal condition required by the Strasbourg jurisprudence.

7. Per Lord Hope and Lord Brown, allowing the appeal would impermissibly extend the exceptional category established by D v United Kingdom. Any such development was for the Strasbourg court. Lord Brown added that dismissal did not require the Secretary of State to remove the appellant; the Secretary of State retained a wide administrative discretion.

1. House of Lords: Dismissed the appeal unanimously and affirmed the Court of Appeal’s disposition: [2005] UKHL 31.
2. Court of Appeal: Held unanimously that the Immigration Appeal Tribunal’s conclusion lacked legally sufficient reasons. By a majority, however, it dismissed the appellant’s appeal because the evidence could not satisfy the exceptional article 3 threshold. Carnwath LJ would have remitted the case: [2003] EWCA Civ 1369; [2004] 1 WLR 1182.
3. Immigration Appeal Tribunal: Allowed the Secretary of State’s appeal and rejected the appellant’s article 3 claim.
4. Adjudicator: Dismissed the asylum appeal but allowed the appeal under article 3 of the European Convention on Human Rights.