The Secretary of State for the Home Department v GS

Removal of a person with a serious naturally occurring illness may engage Article 3 where life-sustaining treatment is not practically available in the receiving state. The threshold remains very high. The decision-maker must assess all the circumstances, including available medical, family and social support and whether the person would die with dignity.

A dramatically shortened life expectancy following withdrawal of treatment does not, by itself, establish an exceptional case. Treatment may be unavailable in practice because it is unaffordable or inaccessible, but that fact is not determinative. Any extension of the principles in N v Secretary of State for the Home Department [2005] UKHL 31 and N v United Kingdom (2008) 47 EHRR 39 is for higher courts.

The Secretary of State appealed in two linked health cases. GS, an Indian national, and EO, a Ghanaian national, each required dialysis three times weekly for irreversible kidney disease. Dialysis was available in their countries of origin but was practically inaccessible because of cost and personal circumstances. Without it, GS would die within one to two weeks and EO within two to three weeks.

The First-tier Tribunal had allowed each appeal under Article 3. Earlier Upper Tribunal decisions had found errors of law. After remittals from the Court of Appeal, the Tribunal had to determine whether the inability to obtain life-sustaining treatment, and the resulting imminent death, amounted to the very exceptional circumstances required by Article 3.

1. The Secretary of State’s appeals were allowed and the claimants’ Article 3 appeals were dismissed. The First-tier Tribunal decisions were set aside for legal error and remade by dismissing GS’s and EO’s appeals.

2. Article 3 may apply where the anticipated harm on return results from a naturally occurring illness and a lack of treatment or support, rather than conduct attributable to the receiving state. But this is an incremental and narrowly confined extension of Article 3. The governing approach in D v United Kingdom (1997) 24 EHRR 423, N v Secretary of State for the Home Department [2005] UKHL 31 and N v United Kingdom (2008) 47 EHRR 39 requires very exceptional and compelling humanitarian circumstances.

3. The assessment is holistic and concerns the claimant’s actual situation in the receiving country. The claimant must prove that necessary treatment or care is unavailable in practice. Theoretical availability does not suffice where treatment cannot be afforded or accessed. Nevertheless, practical unavailability and imminent death do not alone meet the Article 3 threshold.

4. The decisive question is whether the cumulative circumstances create a real risk of inhuman or degrading treatment, including an undignified death. The paradigm remains D v United Kingdom: critical illness combined with the absence of medical, family and social support. The rapidity of decline is relevant, but no workable rule makes a specified period before death determinative.

5. GS and EO each had family support and a home to which to return. There was no evidence that either would be denied all palliative care or would die in circumstances comparable to D. Their removal would therefore not expose them to a real risk of an undignified death contrary to Article 3.

6. The Tribunal identified possible different considerations in cases involving discriminatory denial of treatment, young children, or humanitarian conditions caused by conflict or comparable human agency. It also observed, without deciding the issue, that Article 8 may require a different proportionality analysis in an appropriate case.

• Upper Tribunal (Immigration and Asylum Chamber): The present Tribunal allowed the Secretary of State’s appeals, set aside the First-tier Tribunal decisions, and remade them by dismissing the Article 3 appeals.
• Court of Appeal: Each case was remitted to the Upper Tribunal by consent after permission to appeal had been granted. No Court of Appeal citation is stated.
• First-tier Tribunal: Judge Ian Dove QC allowed GS’s Article 3 appeal, and Judge Hedworth allowed EO’s Article 3 appeal. Both decisions were found to involve errors of law.