JA (Ivory Coast) Es (Tanzania) v Secretary of State for the Home Department

Article 8 claims arising from the withdrawal of medical treatment must be assessed independently of the exceptional threshold governing removal under article 3. A lawful entrant granted and repeatedly renewed leave for treatment occupies a materially different position from a person whose presence followed unlawful entry.

A compassionate grant of leave creates no legal assumption of responsibility or reasonable expectation of renewal. Its history, duration and effect on private life may nevertheless be material to proportionality. The tribunal must consider the likely availability and accessibility of treatment after removal, the consequences of discontinuance, the person’s ability to fund treatment, available family support and the public interest in preserving finite health resources.

Two African women entered the United Kingdom lawfully and were subsequently diagnosed with HIV. NHS anti-retroviral treatment stabilised their conditions. Each received exceptional and then discretionary leave to remain expressly because the United Kingdom had assumed responsibility for her care under the Home Office policy then in force.

Following a policy change prompted by N v Home Secretary [2005] UKHL 31, further leave was refused. The Asylum and Immigration Tribunal accepted that article 8 was engaged but held removal proportionate. In ES’s case it found that her skills, earning capacity and family network would enable continued treatment in Tanzania. In JA’s case it made no finding that treatment would be available or accessible in Ivory Coast.

The central issue was how the appellants’ lawful entry and history of compassionate leave for medical treatment affected proportionality under article 8(2).

1. JA’s appeal was allowed and remitted; ES’s appeal was dismissed. The tribunal had erred in both cases by treating the article 3 decision in N v Home Secretary [2005] UKHL 31 as the dominant standard under article 8 and by marginalising a potentially material feature of the proportionality assessment.

2. Articles 3 and 8 have no fixed relationship. Article 8 is not a more readily accessible version of article 3, but neither does failure to satisfy article 3 determine an article 8 claim. Each right must be applied on its own terms. The appellants’ lawful admission placed them in a significantly different legal position from the unlawful entrants considered in D v United Kingdom (1997) 24 EHRR 423 and N.

3. The Home Office’s previous references to an “assumption of responsibility” did not describe a legal obligation. In D, that expression was highly case-specific: the state had treated a prisoner for whom it bore custodial duties, and continued treatment stood between him and a degrading death. Nor had repeated renewal given these appellants a reasonable expectation of further leave. At most, it created a legitimate hope carrying little independent weight.

4. The history of compassionate grants and renewals nevertheless amounted to a de facto commitment capable of affecting proportionality. Relevant matters included the effect of that history upon private life, the consequences of discontinuing treatment and the passage of time without fault. These considerations had to be balanced against the economic well-being of the country and the settled population’s prior claim upon finite health resources.

5. ES could obtain work contributing towards treatment costs and had family support in Tanzania. Her lawful entry and prior compassionate leave could not therefore prevent removal.

6. JA’s case required redetermination. The tribunal had not found that she had any realistic prospect of obtaining treatment in Ivory Coast or assessed the severity and consequences of removal. Discontinuance of years of life-saving NHS treatment was capable of making removal disproportionate. Her case was remitted for determination of all article 8(2) issues, including an up-to-date appraisal of treatment availability and her practical access to it, applying the methodology in Razgar [2004] UKHL 27.

1. Court of Appeal (Civil Division): Allowed JA’s appeal and remitted her article 8(2) claim to the Asylum and Immigration Tribunal for redetermination. Dismissed ES’s appeal.
2. Asylum and Immigration Tribunal—JA: Held that article 8 was engaged but that removal was proportionate, without finding whether treatment would be available or accessible in Ivory Coast.
3. Asylum and Immigration Tribunal—ES: Held removal proportionate because her skills, earning capacity and family network were likely to enable her HIV infection to remain controlled in Tanzania.