AE (Algeria) v Secretary of State for the Home Department

Removal of a seriously ill child to a country providing substantially inferior healthcare will breach article 3 only if the exceptional threshold governing health cases is met. Childhood is relevant and may affect that assessment, but it does not itself displace the established threshold.

Under article 8, the child’s best interests must be treated as a primary consideration within a structured proportionality assessment. Relevant countervailing considerations may include immigration control, unlawful or precarious residence, misconduct by a parent, and the prospective public cost and duration of treatment.

The appellant, an Algerian national, sought leave for himself and his family to remain in the United Kingdom. His severely disabled daughter had entered lawfully to receive specialised medical care unavailable at a comparable level in Algeria. The First-tier Tribunal dismissed the family’s appeal, and the Upper Tribunal dismissed a further appeal in December 2012.

The appeal to the Court of Appeal concerned articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms. The central questions were whether removal to substantially inferior healthcare would cross the article 3 threshold and whether the Upper Tribunal had lawfully assessed the children’s best interests and the competing public interests under article 8.

1. Disposition. The article 3 appeal was dismissed. The article 8 appeal was allowed. The Upper Tribunal’s article 8 decision was quashed and that issue alone was remitted for reconsideration.
2. The authorities established an exceptional threshold for health cases under article 3. A child’s age and vulnerability may inform the content of the duty and may permit the threshold to be met where an adult could not meet it. Nevertheless, the proposed removal in this case would not cause death and the child would continue to receive family support and some medical care. Treating the substantial reduction in medical, educational and social support as sufficient would require a significant extension of existing article 3 jurisprudence. The Court declined to make that extension.
3. Article 8 may afford a sick child greater protection than article 3. It remains a qualified right, however, and the result depends upon the proportionality balance required by article 8.2.
4. The Upper Tribunal made contradictory findings about whether return was consistent with the children’s best interests. It also appeared to merge the article 8 analysis with the exceptional threshold applicable under article 3. The Court therefore could not be confident that the article 8 decision was free from material legal error.
5. A lawful article 8 assessment required a structured approach. The best interests of the disabled child and her siblings had to be a primary consideration, accompanied by careful examination of the competing considerations. Those considerations included the family’s overstaying, the father’s illegal entry and bogus asylum claim, and the legitimate maintenance of immigration control.
6. The future cost and duration of treatment and care could also form part of the proportionality balance as matters concerning the country’s economic wellbeing and pressure on public finances. The outcome of that balance was not self-evident. The Upper Tribunal was the appropriate body to reconsider it.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 653 , unanimously dismissed the article 3 appeal, allowed the article 8 appeal, quashed the Upper Tribunal’s article 8 decision and remitted that issue alone.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the further appeal on 14 December 2012.
3. First-tier Tribunal: Dismissed the appeal on 16 September 2010.