KK & Ors v Secretary of State for the Home Department

In health-related removal cases under Articles 3 and 8 of the ECHR, powerful existing authorities do not prevent permission to appeal where there is an arguable question about their precise scope or application. Materially different circumstances, such as lawful residence before diagnosis and treatment, long mainly lawful residence, or a very short expected survival period, may justify clarification of the exceptionality criterion. A group of cases with varied factual matrices may properly be heard for that purpose. A separate technical ground may independently justify permission where it appears or may be irresistible, even if it does not itself prevent removal.

Six applicants with grave medical conditions, receiving effective treatment in the United Kingdom, renewed applications for permission to appeal from the Upper Tribunal (Immigration and Asylum Chamber). Five applicants faced a risk of very early death if returned, while the sixth faced a somewhat longer but still limited survival period. The proposed appeals concerned the scope of the Strasbourg decisions in D and N, the domestic decision in N, and the exceptionality criterion in health cases under Articles 3 and 8 of the ECHR. GM also relied on an Ahmadi point said to be, or possibly be, irresistible. The central questions were whether these issues were arguable, satisfied the second appeals test, and warranted appellate clarification.

The court granted permission to appeal in all six renewed applications. The judgment concerned permission only and did not determine whether removal would breach Articles 3 or 8 of the ECHR.

1. The existing decisions in D and N created substantial obstacles for health-based removal claims. Nevertheless, the court accepted that the precise scope and application of those authorities were arguable where the factual circumstances differed materially. The applicants were not effectively illegal entrants or health tourists. Relevant differences included lawful residence before diagnosis and treatment, long and mainly lawful residence, and the gravity and imminence of the medical consequences on return.
2. There was room to clarify the exceptionality criterion derived from D and N. The court identified, without deciding, the possibility that virtually certain death within two weeks of return following lawful and sometimes lengthy residence in the United Kingdom could fall within that criterion. Lady Hale’s judgment in N might permit such an approach.
3. The court considered it appropriate to grant permission in a group presenting a selection of factual matrices so that the scope and application of the existing authorities could be addressed in one judgment. The less attractive features of some cases did not prevent permission being granted.
4. In GM’s case, the additional Ahmadi ground was, on its face, or might be, irresistible. Although it was technical and unrelated to the health issues, and would not necessarily prevent removal in the near future, it independently justified permission.

• Court of Appeal (Civil Division): Six renewed applications for permission to appeal were granted on 12 March 2014. [2014] EWCA Civ 415
• Upper Tribunal (Immigration and Asylum Chamber): The applications arose from decisions of the Upper Tribunal. No citation or outcome for those decisions is stated.