GS (India), & Ors v The Secretary of State for the Home Department

Removal of a seriously ill person to a country with inferior healthcare does not, without more, breach Article 3. The Convention imposes no duty to provide continuing medical treatment merely because removal will significantly shorten life. The D exception is confined to a person already at a critical, terminal stage whose removal would cause an undignified death without adequate care.

Article 8 may be relevant only where a claimant has independent private- or family-life factors. Medical treatment unavailable abroad may then be weighed in proportionality, but cannot alone create a right to remain. An appellate court may refuse, as a matter of discretion, to entertain an Article 8 case deliberately not pursued before the Upper Tribunal.

Six appellants challenged decisions removing or deporting them from the United Kingdom. Five had end-stage kidney disease requiring dialysis. The sixth had advanced HIV. They contended that removal to their countries of origin, where treatment might be unavailable or unaffordable, would breach Articles 3 and 8 of the European Convention on Human Rights.

The appeals were from determinations of the Upper Tribunal (Immigration and Asylum Chamber), which had dismissed the challenges. In GM’s case, the Secretary of State accepted that the removal notice was unlawful because it combined a refusal of variation of leave with a removal decision, and accepted remittal of his Article 8 claim. The common issue was whether the grave medical consequences of removal brought the cases within the exceptional protection of Articles 3 or 8.

1. GM’s appeal was allowed. The removal decision was unlawful because a variation decision had not first been separately notified, as required before a removal direction could be made under section 47 of the Immigration Asylum and Nationality Act 2006. The decision was quashed and GM’s Article 8 appeal was remitted to the Upper Tribunal.

2. All Article 3 claims failed. The court followed N v Secretary of State [2005] UKHL 31. Article 3 does not require a contracting state to provide an alien indefinitely with treatment unavailable in the country of return, even where the absence of treatment will significantly shorten life. The exception in D v United Kingdom [1997] 24 EHRR 423 is confined to a person already dying, whose removal would deprive him of care needed to meet death with dignity. None of the appellants met that test.

3. The authorities concerning asylum seekers facing state responsibility, legal obligations, or conflict-created humanitarian crises did not enlarge the medical-treatment exception. They were materially different from deterioration caused by natural illness and inadequate resources in the receiving state.

4. Article 8 did not independently assist the remaining appellants. A health consequence may be relevant where other private- or family-life factors engage Article 8, but unavailable treatment cannot itself create a medical-care obligation. KK had no material family life in the United Kingdom and the Upper Tribunal had found treatment available in the DRC. PL’s friendships, formed during prolonged unlawful residence, could not outweigh immigration control merely because removal would have grave medical consequences.

5. The majority declined, as a matter of discretion, to consider the Article 8 arguments of GS, EO and BA because they had not pursued them before the Upper Tribunal and had no strong Article 8 case. New medical developments or later country-risk material did not retrospectively invalidate the Upper Tribunal’s decisions; they could be advanced in fresh representations.

• Court of Appeal (Civil Division): GM’s appeal was allowed, the removal decision quashed, and his Article 8 claim remitted to the Upper Tribunal. The appeals of GS, EO, PL, BA and KK were dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellants’ challenges to removal or deportation. The relevant determinations included GM (30 September 2012), GS and EO (17 October 2012), PL (14 January 2013), BA (24 January 2013), and KK (31 January 2013).
• First-tier Tribunal: The individual appeals had followed differing First-tier Tribunal outcomes, several of which had been set aside or revisited by the Upper Tribunal.