DM (Zambia) v Secretary of State for the Home Department

Time-limited discretionary leave to remain for medical treatment does not, without more, amount to a legal or moral undertaking to provide that treatment indefinitely. On reconsideration after an identified error of law, a tribunal should ordinarily retain unaffected findings, but that guidance is not a bright-line rule. It may make fresh findings on further relevant and fairly admitted evidence.

Under Article 8, proportionality requires a structured assessment. The availability of treatment, current health, financial and family support on return, credibility, and the character of private life may all be material. The court also indicated that, once private life exists, its intensity normally bears on proportionality rather than imposing a specially high threshold for Article 8 engagement.

The appellant, a Zambian national with HIV/AIDS, entered the United Kingdom as a visitor in 2001 and later received discretionary leave to obtain treatment. An Immigration Judge allowed her appeal against refusal of further leave, finding removal contrary to Articles 3 and 8. On first-stage reconsideration, the Asylum and Immigration Tribunal found a material error of law in the Article 3 reasoning and directed a fresh Article 8 assessment.

At the second-stage reconsideration, the Tribunal admitted late Home Office documents, reassessed the medical and support evidence, and dismissed the Article 8 appeal. The appeal to the Court of Appeal from [AIT No: IA/03081/2008] concerned whether the Tribunal was constrained by the first Immigration Judge’s finding that the appellant would be unable to obtain necessary treatment in Zambia.

Appeal dismissed unanimously. Sedley LJ gave the judgment, with which Stanley Burnton and Elias LJJ agreed.

1. The initial Article 3 determination was flawed. The discretionary grants of leave had been made for humane reasons and could not support an implied legal or moral commitment by the United Kingdom to provide treatment indefinitely. That conclusion was consistent with N v SSHD [2005] UKHL 31.

2. The first Immigration Judge’s Article 8 proportionality assessment also required reappraisal. A tribunal cannot resolve proportionality by a formulaic reference to a balancing exercise. It must give a structured assessment.

3. The Tribunal was not precluded from reconsidering the earlier finding about access to treatment. The guidance in DK (Serbia) [2006] EWCA Civ 1747, that unaffected findings normally need not be revisited, was important but was not a bright-line rule. The Tribunal could supplement the accepted expert evidence with later medical evidence and further findings relevant to proportionality. The late documents were fairly admitted: they originated with the appellant and her counsel declined the opportunity to take instructions.

4. The Tribunal’s fresh findings were open to it. The appellant’s condition had stabilised, treatment was available in Zambia, and she would have financial and family support there. Its credibility findings also entitled it to reject her assertion that she would lack such support.

5. The court expressed a tentative view that the Tribunal had misunderstood Article 8 engagement. The gravity and intensity of established private life generally concern proportionality, rather than whether Article 8(1) is engaged. Elias LJ shared that doubt. The point was not determinative, since the Tribunal’s finding that removal was proportionate was plainly sustainable even on the assumption that Article 8 was engaged.

1. Court of Appeal (Civil Division) — dismissed the appellant’s appeal from the Asylum and Immigration Tribunal determination [AIT No: IA/03081/2008].

2. Asylum and Immigration Tribunal — on second-stage reconsideration, dismissed the Article 8 appeal after reassessing the evidence of treatment and support on return.

3. Asylum and Immigration Tribunal — at first-stage reconsideration, held that the Immigration Judge had made a material error of law in allowing the Article 3 claim and directed a fresh Article 8 assessment.

4. Immigration Judge — initially allowed the appeal in April 2008 under Articles 3 and 8.