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

In removal cases involving serious illness, a disparity between medical facilities in the United Kingdom and the receiving state does not ordinarily engage Article 3 of the Convention. The high threshold for medical-treatment cases remains applicable. A claimant who is stable, not critically ill and fit to travel will normally not succeed merely because treatment abroad is less available and deterioration may follow. The analysis must nevertheless distinguish lack of national resources from deliberate harm by public authorities or non-State actors. Other very exceptional cases with equally compelling humanitarian considerations remain possible. A tribunal must examine relevant evidence of alleged oppression and give a cogent factual basis for strong findings. Lawful entry, compliance with immigration law, honesty and medical care previously provided in the United Kingdom add little to the claim.

RS, a Zimbabwean national diagnosed with HIV after entering the United Kingdom, challenged the refusal of further leave to remain on human rights grounds. An Adjudicator allowed her appeal under Article 3, relying principally on the lack of effective treatment in Zimbabwe, her husband’s circumstances and alleged government oppression.

The Immigration Appeal Tribunal, on 17 July 2007, found a material error of law and dismissed the appeal. The Court of Appeal considered the proper application of the medical-treatment principles in N, together with the later Grand Chamber judgment, and whether alleged deliberate oppression and other humanitarian circumstances required separate consideration. The central issue was whether the claim could be treated simply as a case of unequal medical resources.

Appeal allowed unanimously. Pill LJ gave the principal judgment. Arden LJ agreed and added guidance, and Longmore LJ agreed with both judgments. The Article 3 issue was remitted in full to a differently constituted Tribunal.

1. Following N v Secretary of State [2003] EWCA Civ 1369, N v SSHD [2005] UKHL 31 and the Grand Chamber judgment in N v United Kingdom (Application No. 26565/05), the high threshold in D v United Kingdom [1997] 23 EHRR 423 remained applicable. A stable person who was not critically ill and was fit to travel would not normally establish an Article 3 breach merely because treatment in the receiving state was less available and deterioration or early death might follow.
2. The Grand Chamber had not excluded other very exceptional cases where humanitarian considerations were equally compelling. Article 3 analysis could therefore require consideration of alleged deliberate harm by public authorities or non-State bodies, separately from naturally occurring illness and shortages of national resources.
3. The Tribunal was entitled to identify an error in the Adjudicator’s treatment of the medical-treatment issue and the Zanu-PF factor. It was not entitled to confine the analysis to medical access where material raised a separate case based on oppression. If the receiving government was condemned in strong terms, the decision-maker needed a cogent factual basis and sufficient factual analysis.
4. Lawful entry, compliance with immigration law, frankness, the husband’s conduct and the United Kingdom’s previous provision of medical care did not significantly advance the Article 3 claim and should not have been treated as special factors.
5. Arden LJ stated that a mixed case should address the source and seriousness of the alleged harm, whether deprivation resulted from deliberate conduct or lack of resources, and whether the harm would be as serious without the medical condition. She also identified an apparent distinction between the medical-resource authorities and the absolute protection applicable to intentional harm, while leaving full reconciliation of those lines for a later case.

• Court of Appeal (Civil Division): in [2008] EWCA Civ 839, allowed the appeal and remitted the whole Article 3 issue to a differently constituted Immigration Appeal Tribunal.
• Immigration Appeal Tribunal (17 July 2007): found a material error of law in the Adjudicator’s decision and dismissed the human rights appeal.
• Adjudicator (29 October 2004): allowed the appeal on Article 3 grounds. That decision was subsequently held to have been made in excess of jurisdiction, and the matter was remitted by consent.
• Secretary of State for the Home Department (5 January 2004): refused further leave to remain on human rights grounds.