The Secretary of State for the Home Department v GS

Article 3 does not require a contracting state to provide an alien with continuing medical treatment indefinitely because equivalent treatment is unavailable or inaccessible in the country of return. The exceptional category exemplified by D v United Kingdom is confined to a person who is dying and beyond the reach of effective treatment, so that removal concerns the circumstances of an imminent death rather than a continuing obligation to treat.

A seriously ill person whose condition is controlled by treatment, but whose life will be shortened if treatment ceases after return, is ordinarily in the position considered in N v SSHD. Such a case does not satisfy Article 3 merely because treatment cannot realistically be afforded abroad.

The Secretary of State appealed against Immigration Judge Dove QC's decision allowing GS's appeal against refusal of leave to remain on compassionate grounds.

GS, an Indian citizen who had overstayed, had irreversible advanced chronic kidney disease. He required dialysis three times weekly and would die within one to two weeks if it stopped. Dialysis was available some 300 kilometres from his village in India, but he could not afford the treatment or support himself there, and his family could not support him.

The Immigration Judge held that removal would breach Article 3 of the ECHR because GS could not realistically obtain essential dialysis in India. The central issue was whether those circumstances were exceptionally compelling for Article 3 purposes.

1. Appeal allowed. The Immigration Judge made a material error of law. The Tribunal remade the decision and held that removal would breach neither Article 3 nor Article 8 of the ECHR.

2. The governing distinction derived from D v United Kingdom [1997] 24 EHRR 43 and N v SSHD [2005] 2 AC 296. In D, the claimant was dying and beyond the reach of effective medical treatment. Allowing him to remain therefore imposed no continuing medical-care obligation on the expelling state. The issue was where and in what conditions he would die.

3. GS was materially different. His condition was controlled by dialysis, and, if he remained, he would need continuing treatment for the foreseeable future. His removal would concern where he could live and receive long-term treatment. Article 3 did not require the United Kingdom to assume that continuing obligation, even though the treatment available in India was practically inaccessible to him and stopping dialysis would lead rapidly to death.

4. GS was therefore analogous to N, not D, and did not fall within the very exceptional category. The Tribunal accepted that the Immigration Judge had addressed exceptionality, but held that he had misunderstood the critical legal distinction.

5. The Article 8 claim disclosed no separate basis for success once the Article 3 claim failed. The Tribunal agreed with the respondent's concession on that issue.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State's appeal, set aside Immigration Judge Dove QC's determination of 14 June 2010, and remade the decision by dismissing the respondent's Article 3 and Article 8 claims.
• First-tier Tribunal (Immigration and Asylum Chamber): Immigration Judge Dove QC allowed GS's appeal against the refusal of leave to remain, finding that removal would breach Article 3 of the ECHR.