CA v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date20 July 2004
Neutral Citation[2004] EWCA Civ 1165
Docket NumberC4/2004/0825
CourtCourt of Appeal (Civil Division)
Date20 July 2004

[2004] EWCA Civ 1165




Royal Courts of Justice


London, WC2


Lord Justice Mummery

Lord Justice Laws

Sir Martin Nourse


Secretary of State for The Home Department

MR A NICOL QC AND MR M HENDERSON (instructed by Bartram & Co) appeared on behalf of the Appellant

MS J ANDERSON (instructed by the Treasury Solicitor) appeared on behalf of the Respondent

Tuesday, 20th July 2004.


This is an appeal against the decision of the Immigration Appeal Tribunal ("the IAT") notified on 9th February 2004 when they allowed the Secretary of State's appeal against the determination of the Adjudicator which had been promulgated on 24th June 2003. The Adjudicator had allowed the appellant's appeal on grounds arising under Article 3 of the European Convention on Human Rights against the decision of the Secretary of State to refuse asylum and to make removal directions on 12th February 2003. The case is to say the least an unusual one, as the conclusion of the Adjudicator at paragraph 53 shows:

"In conclusion then, the appellant does not succeed in her appeal before me on the Article 3 claim under her own right because I have held that the necessary treatment is available to her in Ghana and whether she can pay for it or not is an irrelevant consideration. However, she does succeed in the Article 3 claim before me on the basis of the dangers apparent to her unborn child. Had it not been for her pregnancy and for the imminent birth, she would not have succeeded in this appeal under Article 3 at all. I therefore hold that this is an exceptional case and it is not to be taken as setting any form of precedent."


Permission to appeal to this court was granted by Pill LJ on consideration of the papers on 26th May 2004.


The appellant is a national of Ghana. She arrived in the United Kingdom on 4th November 1999 and claimed asylum on 12th November 1999. Her claim to asylum arose because her family had for generations been the custodians of a particular shrine and her mother had been what was called "priestess of the fetish" until her death on 1st October 1999. It was the appellant's case that as her mother's eldest daughter, she would be expected to succeed her as priestess on pain of what was referred to as a "mysterious" death if she refused. The appellant strongly objected to her prospective place as priestess because of her Christian beliefs.


Her asylum claim was in due course dismissed by the Adjudicator as it had been by the Secretary of State, and I need say no more about it. The issues in the appeal concern the case made by the appellant under Article 3 of the Human Rights Convention. On the facts as found by the Adjudicator, the appellant had become infected with the HIV virus before leaving Ghana. After her arrival here she fell pregnant. She was diagnosed HIV positive during a routine antenatal screening test in April 2000. She was delivered of a son, K, born in the United Kingdom on 18th October 2000. He was born and to date remains free of HIV. The appellant's condition has been managed on antiretroviral therapy under the care of Dr Larbalestier.


Following the Secretary of State's refusal of her asylum claim, the Adjudicator heard her appeal on asylum and human rights grounds on 5th June 2003, and as I have said his decision was promulgated on 24th June 2003. By the date of the hearing the appellant was pregnant for the second time. Indeed, she was close to term. She had an appointment at St Thomas' Hospital for a delivery by caesarean section on 23rd June 2003. Delivery by this means together with associated precautions greatly reduces the risk of transmission of HIV from an infected mother to the newborn child.


The Adjudicator rejected the appellant's case under Article 3 so far as it was based on the risks to her own health which would or might be posed by her returning to Ghana. He allowed the appeal only in virtue of the risks to her unborn child which would eventuate if she were returned. I shall first set out one paragraph in which the Adjudicator recounted part of the appellant's evidence.

"12. If she were to be returned to Accra, she said that she will be with two young children (as she was currently pregnant due to have a planned caesarean later on in June) . She will not be able to look after them. She would have no money to accommodate herself or the children. She could not disclose that she had the disease to anyone at all. Rather than going back to Ghana, she would prefer to kill herself and the children. She will not be able to get milk or medicine in Ghana. It was therefore better to kill themselves in that respect. The appellant said that in Ghana, if you have a baby, you are given nothing. You breastfeed and the children die. Here in the United Kingdom, the children were given milk without being breastfed."


There is next the Adjudicator's summary of the medical evidence. It is necessary only to set out paragraphs 47 to 50.

"47. I note that the appellant's son, K, does not have the symptoms of HIV. Therefore, the medical services in the United Kingdom have been successful in ensuring that he does not contract this virus. However, the appellant is once again pregnant. Her confinement date was sometime in July 2003, however, the health care professionals have decided to give her an elective caesarean section which is booked for 23 June 2003. This is to ensure that there is no risk of infection to the child by means of a vaginal birth. I have to decide this case as of the date of the hearing. Although I can take into account the practicality of the situation that the respondent will not remove the appellant until after she has given birth on 23 June 2003, nevertheless this is not a case where the appellant is to give a simple birth to a child. This is a case where there are complications in view of the appellant's HIV/AIDS and the allied difficulties and complications for her expected child. I note that from the report from Jeanette Meadway, that after the birth, the baby should receive antiretroviral treatment for a month and monitoring for eighteen months as the interpretation of tests to determine HIV status in a baby are complex and difficult. Furthermore, the recommendation in the strongest term is that the baby ought to be fed formula feeding. This is only available in powdered form in Ghana and therefore the appellant would have to mix it with water. There are considerable risks of contamination of water both in towns and villages during rainy seasons. This will lead to a risk of water borne diseases such as Cholera and Typhoid as well as gastroenteritis. This poses considerable risk to small babies whose feeds are made up with available water.

"48. In these circumstances, in my judgment, if the appellant were to be removed with a small baby, the necessary care in relation to that baby would be interrupted. That care was necessary for her other child K and ensured that he remained risk free. The expected baby would be deprived of that care and to expose the baby through either breast feeding or through a mixture of breast feeding and formula feeding, this would increase the risk to the baby of contracting HIV/AIDS from the appellant. There will be obvious health risks to this baby in view of using contaminated water to mix the powder form of formula feeding in Ghana.

"49. Although a foetus has no right to life, it is really for the position of the unborn child as of the date of the hearing and the necessary care for this unborn child upon birth, that I hold that the removal of the appellant as of the date of the hearing would breach Article 3 since there will be substantial risk of exposing the child to HIV/AIDS and this would amount to exposing the appellant to inhumane or degrading treatment. To see a new born child develop HIV is capable of being inhumane and degrading treatment particularly where it could have been prevented with adequate [care] as in the case of her son, K.

"50. Had it not been for the position of the unborn child, I would have dismissed the appellant's claim under Article 3 for the reasons I have outlined above. This is because the necessary treatment is available in Ghana. Although it is said that the appellant cannot pay for the treatment, I have my reservations about this because I do not accept her evidence that her father is such a poor man as she claims. Although her father may shun her for developing AIDS, he may provide her with the necessary finances to resettle in Accra upon return to Ghana."


That then was the basis of the Adjudicator's conclusions. These conclusions were translated into practical consequences by what is said at paragraph 51:

"As the appellant has succeeded in her Article 3 claim before me, the respondent then has to grant her some form of leave. That is a matter entirely for the respondent but my recommendation is that she be granted discretionary leave to remain for a period of two years. This should be enough to ensure that her unborn child is present in the United Kingdom in order to receive the necessary antiretroviral treatment and the monitoring for the test to determine whether the baby has contracted HIV/AIDS. At the end of that period, if the new child is as healthy as K is now, then the appellant should be removed at the end of that period."


The Secretary of State obtained leave to appeal to the IAT. His first and third grounds of appeal stated:

"1. It is submitted that the Adjudicator has made an error of law in allowing this appeal on the basis of the...

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