RS & Ors v The Secretary of State for the Home Department

A Zimbabwean returnee will not establish a protection or human-rights claim merely because they have HIV/AIDS and receive treatment in the United Kingdom. They must satisfy the very high medical-removal threshold in N v United Kingdom.

Although deliberate, discriminatory denial of food or medical treatment for political reasons may amount to persecution, evidence of some discrimination or irregular access does not suffice. The claimant must show a real risk of personally being denied treatment or food for that reason. On the evidence, access to antiretroviral treatment and food aid in Zimbabwe was not shown to be systemically dictated by political affiliation.

Removal did not breach Articles 8 or 14, nor did it contravene the reasonable-adjustment duties in the Disability Discrimination Act 1995.

Three Zimbabwean women, each living with HIV and receiving antiretroviral treatment through the NHS, appealed against immigration decisions requiring their removal. They relied on asylum, Articles 3, 8 and 14 of the European Convention, and the Disability Discrimination Act 1995.

RS also claimed past MDC activity. EC and BR did not claim a political history. The appeals followed lengthy and differing procedural histories, including remittals for reconsideration. The Tribunal heard extensive evidence on the availability of antiretroviral treatment, food aid, political discrimination and conditions in Zimbabwe.

The central issues were whether the appellants faced a real risk of persecution or treatment contrary to Article 3 through discriminatory denial of medication or food, and whether their removal was otherwise unlawful.

1. All three appeals were dismissed. The appellants had not shown a real risk of persecution, Article 3 ill-treatment, or a disproportionate interference with Article 8 rights on return to Zimbabwe.

2. The medical-removal principle in N v United Kingdom governed the Article 3 claims. The threshold is exceptionally high. A reduction in life expectancy or access only to inferior treatment is insufficient without compelling humanitarian circumstances. Each appellant was presently stable and did not meet that threshold, including BR, notwithstanding that her drug Raltegravir was unavailable in Zimbabwe.

3. A significant number of people in Zimbabwe received HIV/AIDS treatment. The evidence did not establish a real risk that these appellants would have to demonstrate ZANU-PF loyalty to receive antiretroviral drugs. There was evidence of discrimination and politicisation in some places, but it was anecdotal, sporadic and not shown to be systemic or likely to affect these appellants in their home areas.

4. The same conclusion applied to food aid. Discriminatory denial of food on political grounds can constitute persecution, consistently with RN (Returnees) Zimbabwe CG [2008] UKAIT 00083. However, the evidence did not show a real risk that any appellant would personally be denied food aid for an actual or imputed political opinion. RN remained binding country guidance because no clear and cogent basis for departure had been shown.

5. Article 8 private life was engaged by the foreseeable health consequences of removal. Unlike the appellants in JA (Ivory Coast) v SSHD [2009] EWCA Civ 1353, none had been granted leave specifically to continue HIV treatment. They therefore had to meet the exceptional medical threshold, which they did not. Their family and private-life evidence did not make removal disproportionate.

6. Article 14 added nothing once removal was justified under Article 8. The Tribunal had jurisdiction to consider the Disability Discrimination Act 1995, but its reasonable-adjustment duties did not require the Secretary of State to cease removal. In any event, immigration control and the protection of finite public medical resources provided justification.

1. Upper Tribunal (Immigration and Asylum Chamber): The Tribunal dismissed RS’s, EC’s and BR’s appeals on asylum, human-rights and disability-discrimination grounds.
2. Court of Appeal: RS’s Article 3 claim was remitted for a fresh hearing in July 2008. EC’s appeal was set aside by consent and remitted for reconsideration in March 2009.
3. Immigration tribunals: Each appellant had earlier adverse or procedurally defective determinations. Their cases were subsequently reconsidered together after case-management directions.