CA v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 2004 |
| Date | 20 July 2004 |
| Court | Queen's Bench Division |
Court of Appeal
Lord Justice Mummery, Lord Justice Laws and Sir Martin Nourse
Representation:
Mr A Nicol QC and Mr M Henderson instructed by Bartram & Company, for the Claimant;
Ms J Anderson instructed by the Treasury Solicitor, for the Respondent.
Cases referred to in the judgment:
BD (Application of SK and DK) Croatia CG* [2004] UKIAT 00032
N v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 1369; [2004] INLR 10
R v Immigration Appeal Tribunal ex parte Kotecha [1982] Imm AR 88
R v Immigration Appeal Tribunal ex parte Weerasuriya [1982] Imm AR 23
R v Secretary of State for the Home Department ex parte Ravichandran (No.1) [1996] Imm AR 97
Subesh v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 56; [2004] Imm AR 112; [2004] INLR 417
Legislation judicially considered:
Nationality, Immigration and Asylum Act 2002, ss 101 and 102
Jurisdiction of the Immigration Appeal Tribunal to overturn the decision of an Adjudicator s 101 of the Nationality, Immigration and Asylum Act 2002 Article 3 of the ECHR risk of HIV to unborn child and young baby perversity Wednesbury unreasonable
The Claimant was a Ghanaian national whose asylum claim had been refused by the Secretary of State for the Home Department. After arriving in the United Kingdom she became pregnant and was also diagnosed as HIV positive, her condition since that time being managed on antiretroviral therapy. Her son was born and remained free of HIV. At the date of her appeal hearing before the Adjudicator, the Claimant was pregnant for a second time. The Adjudicator dismissed her asylum appeal and also dismissed her appeal under Article 3 of the ECHR to the extent that it was based on the risks to her own health which would be faced on her return to Ghana. However, the Adjudicator allowed the appeal on the basis of the risks to the unborn child on removal to Ghana. The Adjudicator found that, while a foetus had no right to life, the position of the unborn child as at the date of the hearing and the necessary care for the child after birth meant that there was a real risk that the baby would develop HIV, which would amount to exposing the Claimant to inhuman or degrading treatment.
The Secretary of State appealed to the Immigration Appeal Tribunal. By the time of the Tribunal hearing, the Claimant had given birth to the child, who was not HIV positive. The Tribunal allowed the appeal, finding that the Adjudicator's decision was perverse in that it was paradoxical to accept that a woman suffering from HIV could be returned to Ghana and yet her child who was not suffering from HIV could not be removed there. Permission to appeal to the Court of Appeal was granted to consider the Tribunal's jurisdiction to overturn the decision of the Adjudicator.
Held, allowing the appeal:
(1) the appeal against the Adjudicator's decision was governed by s 101 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) under which the appellate function of the Tribunal was confined to appeals on points of law, and specifically to whether there had been a material error of law; s 101 did not permit the Tribunal to decide the merits of the case unless it had first concluded that the Adjudicator's decision could not stand due to such an error of law (paras 10, 14, 22 and 30);
(2) in finding that the Adjudicator had erred in law the Tribunal's reasoning was flawed: it had erroneously relied on material not before the Adjudicator and its criticisms of the evidence before the Adjudicator were unsubstantial (paras 23, 28 and 37);
(3) the Adjudicator's reasoning had not sought to accord rights unrecognised by law to the foetus; rather, he had found that for a mother to witness her newborn child being infected by HIV and perhaps dying, was a type of suffering far greater than could arise if the mother confronted the same fate herself; this finding was not perverse (paras 25, 26 and 38);
(4) in concluding that there was a substantial risk of exposing the child to HIV, the Adjudicator was entitled to rely on the medical evidence before him; his decision to do so was not Wednesbury unreasonable (para 27).
Judgment
Lord Justice Laws:
[1] 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.
[2] Permission to appeal to this court was granted by Pill LJ on consideration of the papers on 26th May 2004.
[3] 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.
[4] 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.
[5] 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.
[6] 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.
[7] 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...
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