SQ (Pakistan) & Anor, R (on the application of) v The Upper Tribunal Immigration and Asylum Chamber & Anor

Removal of a seriously ill person engages article 3 only where the consequences cross its high threshold. A child’s vulnerability forms part of that assessment and may produce a different result from an adult’s case.

Article 8 must nevertheless be considered in its own terms. In assessing proportionality, a tribunal must identify the medical treatment and other features of the child’s private life that removal would disrupt. The child’s best interests are a primary consideration. They must be considered first, although cumulative countervailing considerations, including effective immigration control, may outweigh them.

Lawful entry and childhood may materially affect that balance. A purpose of obtaining healthcare may also be relevant. Failure to include medical welfare in the best-interests assessment is a material error of law.

MQ, a child suffering from beta thalassaemia and serious associated complications, entered the United Kingdom lawfully with his mother as a visitor. They subsequently claimed asylum and relied on articles 3 and 8 of the European Convention on Human Rights. Their evidence indicated that his treatment and prognosis would be substantially worse in Pakistan.

The First-tier Tribunal dismissed their appeals. Permission to appeal was refused by the Upper Tribunal. Cox J then refused permission to seek judicial review of that refusal. The appellants appealed to the Court of Appeal.

The central questions were whether MQ’s childhood altered the article 3 assessment and whether the First-tier Tribunal had lawfully assessed his medical welfare and best interests when deciding the article 8 claim.

1. The appeal was allowed. The article 3 claim did not cross the established high threshold. Removal on health grounds violates article 3 only in a very exceptional case involving compelling humanitarian grounds. Severity depends on all the circumstances. A child’s special vulnerability is relevant and may cause the threshold to be reached where an adult’s case would fail. Even allowing fully for MQ’s age, his previous access to transfusions and chelation therapy meant that the evidence fell significantly short of that threshold: D v United Kingdom and N v Secretary of State for the Home Department applied.

2. The First-tier Tribunal’s article 8 assessment contained a material error of law. It had to identify all features of MQ’s private life that removal would interfere with. Those features included the discontinuation of his treatment in the United Kingdom. Interference admitted of only one answer on the evidence; the real question was whether removal was proportionate.

3. Under article 3(1) of the Convention on the Rights of the Child and section 55 of the Borders, Citizenship and Immigration Act 2009, a child’s best interests are a primary consideration in the article 8 proportionality assessment. They must be considered first, although they may be outweighed by the cumulative effect of other considerations. A decision which fails to address the need to safeguard and promote the child’s welfare is not in accordance with article 8(2): ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 applied. The tribunal had wrongly excluded MQ’s medical condition and treatment from that assessment.

4. Article 8 may raise an issue separate from article 3 in a health case. Each article must be applied in its own terms. Childhood and lawful entry may bear materially on proportionality, as may evidence that entry was undertaken to obtain healthcare. The United Kingdom has no obligation invariably to provide treatment to persons who otherwise have no right to remain.

5. The Court granted permission to seek judicial review, determined the claim substantively and remitted the immigration appeal to the Upper Tribunal for rehearing. The appellants were to remain anonymous.

1. Court of Appeal (Civil Division): By [2013] EWCA Civ 1251, unanimously allowed the appeal, departed from Cox J’s refusal, granted permission to seek judicial review, determined the claim substantively and remitted the immigration appeal to the Upper Tribunal for rehearing.

2. Administrative Court: Cox J refused permission on the papers to seek judicial review of the Upper Tribunal’s refusal of permission to appeal.

3. Upper Tribunal: Refused permission to appeal from the First-tier Tribunal.

4. First-tier Tribunal: Dismissed the asylum and human-rights appeals under articles 3 and 8.