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

Rule 395C of the Immigration Rules requires an individual assessment of all relevant factors, including compassionate circumstances. It is neither confined to the Article 3 threshold nor a substitute for Article 3. Compassionate circumstances falling short of Article 3 may justify treating otherwise lawful removal as unduly harsh when considered with the other factors. An immigration decision is unlawful where a material factual gap remains unresolved, including the practical availability of treatment and financial support on return. Later country guidance does not automatically cure that defect where its evidence or implementation remains uncertain.

The appellant, a Zimbabwean national living with HIV, challenged the dismissal of his appeal against refusal of leave to remain outside the Immigration Rules. His Article 3 claim had failed. He argued that the Immigration Judge had inadequately assessed compassionate circumstances under rule 395C, particularly the loss of the financial support he sent to his wife and children and the uncertain availability of antiretroviral treatment in Zimbabwe.

The Secretary of State relied on later country guidance in RS (Zimbabwe) [2010] UKUT 363 (IAC) and contended that remission was unnecessary. The central issue was whether the original decision under rule 395C had been reached on a complete factual basis and whether the later evidence established only one possible outcome.

1. Appeal allowed. The matter was remitted to the Upper Tribunal for determination in accordance with the judgment.
2. Rule 395C of the Immigration Rules requires consideration of all relevant factors. Where compassionate circumstances are relied upon, the rule is not a simple analogy of Article 3 and is not a substitute for it. It may apply where circumstances fall short of Article 3 but removal, although lawful, would be unduly harsh in the context of the other relevant factors.
3. The Immigration Judge had considered the medical evidence and availability of treatment, but had not addressed the material fact that the appellant’s remittances were the only financial support available to his immediate family. The assumption that financial support would be available on return was unsupported. The decision under rule 395C therefore rested on incomplete facts.
4. The later decision in RS (Zimbabwe) [2010] UKUT 363 (IAC) was not sufficient to make remission pointless. Conditions and funding were in flux, and questions remained about whether the policy of prioritising returnees already receiving antiretroviral treatment had been implemented in the appellant’s area or elsewhere to which he could relocate.
5. On remission, the decision-maker had to determine what financial support could actually be expected from the appellant’s brothers and whether the relevant treatment-prioritisation policy was implemented in practice. The Court of Appeal was not itself able to resolve those questions, and there was not only one possible answer.

• Asylum and Immigration Tribunal: the appellant’s appeal was dismissed by Immigration Judge Robinson after reconsideration.
• Court of Appeal (Civil Division): permission to appeal was granted and the appeal was allowed under [2011] EWCA Civ 71. The matter was remitted to the Upper Tribunal.