The Secretary of State for the Home Department v Roseline Onoshoagbe Akhalu

Where removal would seriously affect a claimant’s health, the consequences remain relevant to proportionality under article 8 even if the article 3 threshold is not met. MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 does not impose a requirement that established private or family life must affect the claimant’s prognosis.

The tribunal must conduct a holistic proportionality assessment. It must consider all aspects of private life and the foreseeable health consequences of removal. A disparity in available healthcare will ordinarily carry little weight in the claimant’s favour and strongly engages the public interest in immigration control and finite NHS resources. Only very rare cases will succeed, but exceptional facts may justify that result.

The claimant, a Nigerian national admitted lawfully as a student, was diagnosed in the United Kingdom with end-stage kidney failure. Following a transplant, she required continuing medication, monitoring and safe living conditions. It was accepted that she could not afford the necessary treatment in Nigeria and would die within weeks of removal.

The First-tier Tribunal allowed her article 8 appeal. The Secretary of State appealed, contending principally that MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 required a direct connection between the claimant’s United Kingdom private life and her prognosis. The central issue was whether the First-tier Tribunal had made an error of law in treating this as one of the rare health cases capable of succeeding under article 8 despite failure under article 3.

1. Appeal dismissed. The First-tier Tribunal made no error of law. Its decision allowing the claimant’s article 8 appeal stood.

2. MM (Zimbabwe) v Secretary of State for the Home Department [2012] EWCA Civ 279 did not create a threshold rule barring an article 8 claim unless private or family life in the United Kingdom affected the claimant’s prognosis. The family-support scenario identified in that case was an example, not a mandatory condition.

3. Health consequences of removal may engage article 8 as an aspect of physical and moral integrity, although article 8 requires a proportionality assessment whereas article 3 is absolute. The judge must consider every aspect of the claimant’s private life and the foreseeable consequences for health. Excluding private-life matters because they do not affect prognosis would make the balance legally deficient.

4. The public interest will ordinarily outweigh the consequences flowing solely from inferior or unaffordable healthcare abroad. The United Kingdom is not required to provide treatment merely because it is unavailable in the country of nationality. Finite NHS resources and immigration control are powerful countervailing considerations. Thus, success in a health case under article 8 where article 3 fails will be very rare.

5. On the particular facts, the First-tier Tribunal had permissibly undertaken a holistic assessment. The claimant had been lawfully present when diagnosed, had received treatment to which she was entitled, had an exceptional private life in her community, could not live safely with relatives in Nigeria, and faced an inevitable, early and distressing death alone if removed. The decision was not based merely on comparative healthcare. Appellate restraint was appropriate in reviewing that fact-sensitive evaluation.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The Upper Tribunal upheld the First-tier Tribunal’s allowance of the claimant’s article 8 appeal.

• First-tier Tribunal: Judge Saffer allowed the claimant’s appeal against refusal of further leave to remain and the associated removal decision.