The Article 3 threshold
Applicants may claim that their removal from the UK would constitute a breach of Article 3 on account of their medical condition. Recent caselaw, both at domestic and Strasbourg level, has confirmed that the circumstances in which such a breach could be established will be exceptional. For guidance
please refer to the IDIs Chapter 1 Section 8 Paragraph 3.4.
[ which reads: 3.4. Human Rights Act. This paragraph has been withdrawn for updating. Claims that removal from the UK would breach Articles 3 and/or 8 of the European Convention on Human Rights because of the claimant’s medical condition should be considered in accordance with the House of Lords judgment in the case of N v SSHD (2005) UKHL31 and other relevant case law. http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/IDIs/idischapter1/section8/section8.pdf?view=Binary]
Discretionary Leave should be granted on medical grounds only in those exceptional cases where the high threshold of Article 3 is met. Information on the availability of treatment in the country of origin should be obtained from CIPU and from NCC5 of the Managed Migration Directorate (the CMU dealing with all non-asylum applications for LTR on the basis of HIV infection or other life-threatening medical conditions). Work is in hand to set up a comprehensive database containing such information.
5. INOCULATIONS AND OTHER PREVENTIVE TREATMENT (PROPHYLAXIS) FOR PERSONS BEING REMOVED FROM THE UK
5.1 British residents considering visits to countries where certain diseases are endemic are advised to have appropriate inoculations or other preventive treatment before travelling. This is advisable both for their own health and to prevent infections being brought into the UK on their return. They are normally required to pay for such treatment, although certain categories of persons may be entitled to it free of charge.
Those facing removal from the UK may claim that it would be a breach of their human rights or simply unreasonable to return them to a particular country without access to preventive treatment of this kind and may attempt to delay their removal on these grounds.
5.2 When considering such claims the general principle is that individuals are responsible for safeguarding their own health and that of their children. It should also be borne in mind that medical advice given to British residents who will be returning to the UK may not necessarily apply to people returning to the countries concerned. When someone is informed that their appeal rights are exhausted and/or they are otherwise
liable to be removed from the UK, caseworkers should remind them at the same time of their responsibility for minimising any health risks to themselves or their dependants in the country of return and advise them to consult a general medical practitioner about any preventive treatment needed before travelling and that they may have to pay for it.
5.3 In some cases preventive treatment may be unnecessary because of immunity acquired before coming to the UK but a limited number of people, for example pregnant women and children under 5, may be particularly vulnerable to infection and therefore may need inoculation or other prophylaxis in preparation for their return. The time between notification that their appeal rights are exhausted and final removal should
normally allow sufficient time for people to take medical advice from a general medical practitioner and arrange for and complete any recommended treatment.
5.4 If a person falling within the above vulnerable categories due to leave the UK under an assisted voluntary removal scheme requests, with the support of a doctor’s letter, that inoculation or malaria prophylaxis be provided, the request should normally be granted.
5. 5 A person subject to removal cannot in principle claim any entitlement to remain in the UK to benefit from medical treatment. However, requests to delay removal for a short period to allow for preventive treatment should be considered on their merits in the light of medical advice and standard operational procedures before removal. This is particularly important when pregnant women, young children or unaccompanied minors are involved. However, the presumption should be that removal will not be delayed unless a doctor has confirmed that the treatment concerned is necessary prior to removal and the person subject to removal can show good reasons why it could not have been completed earlier.
5.6 People detained prior to removal have access to medical care and advice from healthcare professionals in immigration removal centres. Detainees are not charged for treatment.
Where removal centre medical staff consider that preventive treatment should be given, removal directions may be set but should be dependent on any pre-departure element of such treatment being completed. Medical advice on preventive measures, including advice leaflets, should be made available to detainees as soon as possible, and should if possible be given as appropriate in the initial medical examination or screening which all detainees receive within 24 hours of detention, and in any case when removal
directions are set. Where removal centre medical staff consider that preventive treatment is necessary and can be completed (subject to para 5.7 below) without delay to planned removal, removal directions may be set but for a date after the treatment is completed. Caseworkers and those responsible for setting removal directions should consult the health care professionals, via the IND team at the centre, on the appropriate
minimum time lag between administering medication and removal taking place.
Caseworkers, those responsible for setting removal directions and IND teams at removal centres should document case histories as thoroughly as possible. This is because, if a JR is commenced, access to a claimant’s medical records cannot be guaranteed.
Therefore, if staff have carefully minuted, for example, any refusal of malarial prophylaxis after it has been offered, then that may make it easier to keep RDs in place, respond to any further representations on the point and/or defend any JR claim. These points should if possible be minuted directly on CID.
53.8 Medical problems
If a person’s medical condition is advanced as a reason for delaying or discontinuing removal:
♦ ascertain full details of the condition;
♦ obtain the person’s signature on a ASL.3751 (DocGen) for access to his medical records, if necessary;
♦ obtain a medical certificate;
♦ obtain a doctor’s or hospital letter outlining the condition;
♦ ascertain from a doctor whether the person is fit to travel, or when they will be fit;
♦ ascertain if the person has anyone in his home country to provide any necessary care;
♦ check with the relevant country officer in COIS the likelihood of treatment being available in the person’s country of origin;
♦ refer to the relevant casework section.
Where a family member of an individual suffers from a medical condition and this is advanced as a reason for delaying or discontinuing with removal, ascertain the information above in respect of the family member.
53.9.1 AIDS/HIV positive cases and other Article 3 (medical) claims
This section has been withdrawn for updating.
53.9.2 Inoculations and other preventative treatment (prophylaxis)
See also: IDI, chapter 1 General provisions, section 8 Medical, part 5.
If a person claims that it would be a breach of their human rights or simply unreasonable to return them to a particular country without access to preventive treatment of this kind, or attempts to delay their removal on these grounds, the general principle is that individuals are responsible for safeguarding their own health and that of their children.
When someone is informed that their appeal rights are exhausted and/or they are otherwise liable to be removed from the UK, you should:
♦ remind them at the same time of their responsibility for minimising any health risks to themselves or their dependants in the country of return;
♦ advise them to consult a general medical practitioner about any preventive treatment needed before travelling; and
♦ that they may have to pay for it.
A limited number of people, e.g. pregnant women and children under 5, may be particularly vulnerable to infection and therefore may need inoculation or other prophylaxis in preparation for their return.
The time between notification that their appeal rights are exhausted and final removal should normally allow sufficient time for people to take medical advice from a general medical practitioner and arrange for, and complete, any recommended treatment.
A person subject to removal cannot in principle claim any entitlement to remain in the UK to benefit from medical treatment. However, requests to delay removal for a short period to allow for preventive treatment should be considered on their merits in the light of medical advice and standard operational procedures before removal. This is particularly important when pregnant women, young children or unaccompanied minors are involved:
♦ Obtain a doctor’s or hospital letter outlining the treatment required;
♦ Ascertain from a doctor why the treatment is necessary prior to removal;
♦ Ascertain the duration of the treatment; and
♦ Ascertain from the person why the treatment could not have been completed earlier.
The presumption should be that removal will not be delayed unless a doctor has confirmed that the treatment is necessary prior to removal and the person can show good reasons why it could not have been completed earlier.
COUNCIL OF EUROPE
EUROPEAN COURT OF HUMAN RIGHTS
Application number: Application no. 26565/05
Jean-Paul Costa, President et al.
CASE OF ‘N’ (AppellantN)
THE UNITED KINGDOM
[EIN EXTRACT from the full judgment in the CASE OF N. v. THE UNITED KINGDOM on the Strasbourg/HUDOC website]
[……….]Having deliberated in private on 26 September 2007 and on 23 April 2008,
Delivers the following judgment, which was adopted on the last‑mentioned date:
1. The case originated in an application (no. 26565/05) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ugandan national, Ms N. (“the applicant”), on 22 July 2005. The President of the Grand Chamber acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court).
2. The applicant, who had been granted legal aid, was represented by Mr J. Luqmani, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office.
3. The applicant, who is HIV positive, alleged that if she were returned to Uganda she would not have access to the medical treatment she required and that this would give rise to violations of Articles 3 and 8 of the Convention.
The principles to be drawn from the case-law
42. In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles.
Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.
44. Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 26). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 89). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.
45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant’s country of origin or which may be available only at substantial cost.
4. Application of the above principles to the present case
46. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, she does not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated, ill-treatment. Her claim under Article 3 is based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.
47. In 1998 the applicant was diagnosed as having two AIDS defining illnesses and a high level of immunosuppression. As a result of the medical treatment she has received in the United Kingdom her condition is now stable. She is fit to travel and will remain fit as long as she continues to receive the basic treatment she needs. The evidence before the national courts indicated, however, that if the applicant were to be deprived of her present medication her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years (see paragraphs 14-17 above).
48. According to information collated by the World Health Organisation (see paragraph 19 above), antiretroviral medication is available in Uganda, although through lack of resources it is received by only half of those in need. The applicant claims that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she comes. It appears that she has family members in Uganda, although she claims that they would not be willing or able to care for her if she were seriously ill.
49. The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue so to provide for her.
50. The Court accepts that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide.
51. In the Court’s view, the applicant’s case cannot be distinguished from those cited in paragraphs 36-41 above. It does not disclose very exceptional circumstances, such as in D. v. the United Kingdom (cited above), and the implementation of the decision to remove the applicant to Uganda would not give rise to a violation of Article 3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
52. The applicant argued under Article 8 that the circumstances facing her on return to Uganda would engage her right to respect for her private life.
53. The Court does not consider that any separate issue arises under Article 8 of the Convention. It is not necessary, therefore, to examine this complaint.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the application admissible;
2. Holds by fourteen votes to three that there would be no violation of Article 3 of the Convention in the event of the applicant being removed to Uganda;
3. Holds by fourteen votes to three that it is not necessary to examine the complaint under Article 8 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 27 May 2008.
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Neutral Citation No.:  EWCA Civ 1353
Case Number: C5/2009/0153; C5/2009/0959
LORD JUSTICE SEDLEY
LORD JUSTICE LONGMORE
LORD JUSTICE AIKENS
JA (IVORY COAST) and ES (TANZANIA)
The Secretary of State for the Home Department
Stephen Knafler and Sadat Sayeed (instructed by Elder Rahimi for JA (Ivory Coast) and Brighton Housing Trust for ES (Tanzania) ) for the Appellants
Miss Lisa Giovannetti (instructed by Treasury Solicitor) for the Respondent
Hearing dates: 10-11 November 2009
Lord Justice Sedley :
- All three members of the court have contributed to the judgment which follows.
- Both appellants are African women, one from Ivory Coast and one from Tanzania, who entered the United Kingdom lawfully. Each was thereafter diagnosed for the first time as HIV-positive and was treated by the NHS with anti-retroviral drugs which stabilised her condition and have kept it stable ever since. With a minor (and for present purposes immaterial) hiatus in ES’s case, both women had leave to enter and thereafter were given leave to remain until, in 2006, Home Office policy changed and renewal of leave to remain was refused. Their appeals to the AIT failed, and with permission they now appeal to this court.
- In each case, importantly, the appellant’s reason for seeking leave to remain here – to continue with her treatment – was given to and accepted by the Home Office. JA entered as a visitor in March 2000, was diagnosed in May that year and applied for exceptional leave to remain for treatment. This was granted in November 2002 for a year, and then renewed as discretionary leave in November 2003 for a further 3 years. But the application which she made shortly before the expiry of that period was eventually refused because, following the case of N, to which we will be coming, Home Office policy had changed. Much the same happened to ES, who entered the UK as a student in September 1998 with one year’s leave. She became an overstayer, but in November 2002 was granted ELR for a year because she was by then being treated for AIDS. Before the expiry of this period she applied for and was granted discretionary leave to remain for a further 3 years. At the end of this time, in December 2006, she reapplied but was refused any extension.
- It is submitted by Stephen Knafler, who appears with Sadat Sayeed on behalf of both appellants, that there was an assumption of responsibility by the United Kingdom which distinguishes the present cases from the line of leading cases in which no such obligation has been held to exist. Disclosure of documents has revealed that when each appellant was granted ELR it was explicitly on the ground that the UK had assumed responsibility for her treatment.
In that critical sense we consider that the present appellants are in a significantly different legal position from both D and N. This in turn, as Ms Giovannetti contingently concedes, gives them a toehold on Art. 8. But we accept her submission that the purchase which this gives is not augmented by the exaggerated importance given for a time by the Home Office to the notion of assumption of responsibility in mistaken reliance on D v United Kingdom. The question is whether in either case the true toehold is sufficient to enable them to resist removal. This must depend in large part on the remainder of the material facts. It also depends, however, on law and legal policy, and it is here that we consider that Mr Knafler has demonstrated two errors in both divisions of the AIT.
First, both have treated N as, if not dispositive, then as the dominant standard for deciding these claims. Secondly, both have marginalised a potentially material factor – not a legal assumption of responsibility but a de facto commitment, not indefinite but not strictly time-limited (save for the policy or practice of giving indefinite leave to remain after six years of exceptional or discretionary leave), and prompted initially by compassion and subsequently by a sense of moral obligation. The consequent passage of time, without any allocation of fault, may also have a bearing: see EB (Kosovo) UKHL 41, §14-15. But the argument for a formal or legal assumption of responsibility goes, in our judgment, too high. Nor do we accept Mr Knafler’s contention that renewal of leave to remain had become for these two appellants a reasonable expectation: it may have become a legitimate hope, but that in itself goes little distance. The real question is how far in each case the proportionality of removal is affected by the history of the compassionate grant and renewal of leave to remain for treatment, having regard to the impact both of that history and of the proposed discontinuance of treatment on the individual’s private life.
Could this, however, have made a difference to either outcome? In the case of ES we consider that it could not. Once it was shown to the immigration judge’s satisfaction that the appellant had the skills and experience to obtain work which could pay, or help to pay, for treatment in Tanzania, and familial support to turn to as well, the history of lawful entry and compassionate grants of leave to remain could not have staved off removal. ES’s case is thus on a par with DM (Zambia)  EWCA Civ 474.
JA’s is a markedly different case. Her position as a continuously lawful entrant places her in a different legal class from N, so that she is not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom. There is no finding by the AIT that she has much if any hope of securing treatment if returned to Ivory Coast, or therefore as to the severity and consequences of removal (see Razgar  UKHL 27). Depending on these, the potential discontinuance of years of life-saving NHS treatment, albeit made available out of compassion and not out of obligation, is in our judgment capable of tipping the balance of proportionality in her favour.
Accordingly we propose to dismiss the appeal of ES but to allow that of JA to the extent of remitting it to the AIT (we see no reason why it should not be the same panel) for redetermination of all issues arising under Art. 8(2) in accordance with our judgment and – of course – with the methodological guidance given by Lord Bingham in Razgar  UKHL 27. For the avoidance of doubt we make it clear that this permits the AIT, on the application of either party, to make an up-to-date appraisal of the availability of ARV and other treatment in Ivory Coast and of JA’s potential access to it.
|BHIVA / NAT : “Detention, Removal and People Living with HIV” – June 2009|