BK (Zimbabwe) v Secretary of State for the Home Department

Serious deterioration in health following removal may engage Article 8, even where removal does not breach Article 3. Success remains confined to exceptional and extreme cases. The decision-maker must conduct a genuine proportionality assessment, balancing the individual consequences against immigration control and considering material factors properly advanced and supported by evidence. A person does not acquire a right to remain merely because removal will worsen their health. Ostracism, humiliation and deprivation of basic rights may be relevant in a health case, but those matters must be raised and evidenced.

The appellant, a Zimbabwean national who had overstayed after entering the United Kingdom as a visitor, was HIV positive and dependent on anti-retroviral treatment unavailable to him in Zimbabwe. His asylum and human-rights appeal was initially dismissed. Reconsideration was ordered because the expert evidence concerning treatment availability had been misconstrued. Senior Immigration Judge Perkins dismissed the reconsidered appeal on 31 July 2007, accepting that removal would cause a catastrophic decline in health but finding it proportionate under Article 8.

Before the Court of Appeal, the appellant challenged only the Article 8 decision. He argued that the tribunal had failed to consider visual impairment, lack of treatment, political intimidation, HIV-related stigma, and shortages of food and basic commodities. The central issue was whether the tribunal had erred in law in assessing proportionality.

1. Appeal dismissed. The dismissal of the Article 3 claim was not challenged. The tribunal’s finding that removal would produce a catastrophic deterioration in health was sufficient potentially to engage Article 8, even though the Article 3 threshold was not met.
2. Lord Justice Dyson held that the tribunal had properly applied the structured Article 8 questions identified in R (Razgar) v SSHD [2004] UKHL 27. Immigration-control decisions will be proportionate in all but a small minority of exceptional cases, assessed case by case. A severe medical deterioration does not itself confer a right to remain.
3. In a health case, ostracism, humiliation and deprivation of basic rights may in principle bear on proportionality. However, the alleged political intimidation had not been part of the case advanced below, the HIV-related stigma had been considered, and the absence of treatment added nothing to the proportionality argument on the evidence.
4. The tribunal was not entitled to be criticised for failing to consider alleged deprivation of food and basic commodities where that case had not been advanced, no finding had been sought or made, and the evidence indicated that the appellant would live with and be supported by his family.
5. There was no failure to take material factors into account and no other legal error. Lord Justice Thomas agreed. The appeal was dismissed.

• Asylum and Immigration Tribunal: An adjudicator dismissed the appellant’s asylum and human-rights appeal on 20 April 2005. Reconsideration was ordered because the expert evidence concerning treatment availability in Zimbabwe had been misconstrued. Senior Immigration Judge Perkins dismissed the reconsidered appeal on 31 July 2007 in [AIT No: AS/01476/2005].
• Court of Appeal (Civil Division): The court dismissed the appeal, which challenged only the Article 8 assessment.