BC (India) v Secretary of State for the Home Department

Removal of a person who can be kept alive and well by medical treatment does not breach Article 3 merely because treatment will be unavailable on return and death will follow shortly. The legally significant distinction is between a person who is actually dying and one whose life is presently sustained by treatment. Proximity of death cannot create a workable rule based on an arbitrary period such as weeks or months. Exceptional humanitarian circumstances may arise in a different category of case, but they do not displace the applicable test. Humanitarian considerations and the risk of an early death may remain relevant to the Secretary of State’s discretion whether to remove, without making removal an Article 3 violation.

The appellant, an Indian national from a rural village in Punjab, entered the United Kingdom as a visitor and later claimed asylum. He suffered from end-stage renal failure and required dialysis three times a week. The evidence was that treatment kept him alive and not at immediate risk, but that withdrawal of treatment would probably result in death within two to three weeks. An immigration judge dismissed his appeal. Reconsideration was ordered by Silber J, but a second immigration judge again dismissed the appeal.

The appellant sought leave to appeal to the Court of Appeal, relying principally on Article 3 and also raising Article 8. The central issue was whether removal could breach Article 3 where the appellant was not currently dying but would face a very early death if treatment unavailable in India were stopped.

1. Application refused. The appellant had no real prospect of showing that removal would violate Article 3.
2. The court considered D v UK [1997] 24 EHRR 423 and N v SSHD [2005] 2 AC 296. They established a distinction between a person who is actually dying and a person who can be kept alive by continuing medical care but whose life would be greatly shortened on return. Article 3 may be engaged in the former category, but not ordinarily in the latter.
3. Baroness Hale’s reference in N to other exceptional cases did not undermine the immediately preceding test. It contemplated a different type of case involving other exceptional considerations. It was not a basis for treating the appellant’s circumstances as falling within the established Article 3 category.
4. The appellant’s particular circumstances, including the certainty and proximity of death without dialysis, inability to pay for treatment, and the geographical availability of treatment in India, did not create a legal distinction. A rule based on death within a specified period would have no workable boundary.
5. The possibility that humanitarian considerations might make non-removal appropriate remained a matter for the Secretary of State’s wide discretion. The same reasoning applied to Article 8: once the Article 3 claim had no real prospect of success, the facts disclosed no alternative real prospect under Article 8.

• Court of Appeal (Civil Division): application for leave to appeal from the Asylum and Immigration Tribunal refused.
• Asylum and Immigration Tribunal [AIT No: IA/05524/06]: on reconsideration, the immigration judge dismissed the appeal. Reconsideration had been ordered by Silber J.