GS and EO (Article 3 - Health Cases) India [Upper Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake,Grubb,Kebede,Blake J,Grubb UTJ,Kebede UTJ |
| Judgment Date | 24 October 2012 |
| Neutral Citation | [2012] UKUT 397 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 October 2012 |
[2012] UKUT 397 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
UPPER TRIBUNAL JUDGE Grubb
UPPER TRIBUNAL JUDGE Kebede
For the Appellant: Mr C Bourne instructed by the Treasury Solicitor
For GS: Ms N Lieven QC, Mr D O'Callaghan and Ms J Lean instructed by Jasvir Jutla & Co Solicitors
For EO: Miss N Benitez instructed by Irving & Co Solicitors
GS and EO (Article 3 — health cases) India
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(i) The fact that life expectancy is dramatically shortened by withdrawal of medical treatment in the host state is in itself incapable of amounting to the highly exceptional case that engages the Article 3 duty.
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(ii) There are recognised departures from the high threshold approach in cases concerning children, discriminatory denial of treatment, absence of resources through civil war or similar human agency.
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(iii) Article 8 cases may also require a different approach and will do so where health questions arise in the context of obstacles to relocation.
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(iv) Any extension of the principles set out in N v SSHD [2005] UKHL 31 and N v United Kingdom (2008) 47 EHRR 39 will be for the higher courts.
1. This judgment is one to which all members of the panel have contributed. These appeals raise the common question of whether and if so, in what circumstances, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome 1950) (“ECHR”) is infringed by the removal of an individual from the UK to a country where he or she will be unable to receive life-sustaining medical treatment which is being provided in the UK and which, in its absence, will lead to the death of the individual in a short time. Both appeals are subject to anonymity orders.
2. Both GS and EO (whom we shall refer to as the “claimants”) suffer from chronic advanced kidney disease which is irreversible and requires dialysis three times a week. Without dialysis, the medical evidence is that GS would die within one to two weeks and EO would die within two to three weeks. Although kidney dialysis is available in their respective countries, namely India and Ghana, that treatment would not be available to them because of the cost and practical difficulty of accessing it.
3. Central to both appeals is the scope of Art 3 of the ECHR as interpreted in the leading cases of D v United Kingdom (1997) 24 EHRR 423 (ECtHR); N v SSHD [2005] UKHL 31 (HL) and N v United Kingdom (2008) 47 EHRR 39 (ECtHR).
4. The facts in relation to both appeals are not now in dispute.
5. GS was born on 1 March 1981. He is a citizen of India. He entered the United Kingdom on 1 November 2004 with entry clearance as a working-holidaymaker. His leave was valid until 29 October 2006 but thereafter he overstayed.
6. On 5 January 2009, medical tests confirmed that he had problems with his kidneys. He has been diagnosed with advance chronic kidney disease which is an irreversible condition. He requires dialysis three times per week, each session lasting for four hours. He only has one kidney probably due to a genetic absence of his right kidney. He requires the dialysis in order to remain alive. The medical evidence is that he would die within one to two weeks if the treatment was discontinued.
7. On 5 February 2009, GS applied for leave to remain in the United Kingdom on compassionate grounds relying on Arts 3 and 8 of the ECHR. On 12 March 2010, the Secretary of State refused his application and made a decision to remove him by way of directions to India under s.10 of the Immigration and Asylum Act 1999.
8. GS appealed to the First-tier Tribunal (“F-tT”). In a determination sent on 14 June 2010, Judge Ian Dove QC allowed GS's appeal.
9. The Judge accepted that the appellant had close contact with uncles, aunts and cousins in the UK. He accepted that he had a mother and two brothers in India but that his mother was in poor health. He accepted that his family were not in a position to provide him with financial support and that, while kidney dialysis was available in India, due to GS's circumstances that would not be available to him and that he would die within one to two weeks of returning to India.
10. Having referred to the decision of the Strasbourg Court in D v UK and of the House of Lords in N v SSHD, Judge Dove QC concluded that a breach of Art 3 had been established. He held that GS's circumstances fell within the “category of exceptionality” recognised in the case law because of the “immediacy of his death” upon the withdrawal of treatment on his return to India.
11. The Secretary of State appealed to the Upper Tribunal (“UT”) and, following the grant of permission (SIJ Freeman), the UT allowed the Secretary of State's appeal and dismissed GS's appeal on the basis that no breach of Art 3 (or indeed Art 8) of the ECHR had been established (see GS (Article 3 – Health – Exceptionality) India [2011] UKUT 35 (IAC) (Lord Bannatyne and SIJ Allen). The UT concluded that the F-tT had erred in law in finding that GS's circumstances fell within the “exceptional” category recognised in N v SSHD and D v UK. The UT went on to remake the decision and dismissed the appeal.
12. GS then appealed to the Court of Appeal and, following the grant of permission to appeal by Toulson LJ, the appeal was remitted by consent to the UT in order to determine whether “the consequences of lack of funds are capable of making a case exceptional in terms of N”. In fact, this ground was not specifically relied upon before us by the Secretary of State. Rather, the appeal was argued both by Mr Bourne (on behalf of the Secretary of State) and Ms Lieven QC (on behalf of GS) more generally on the basis of whether GS's circumstances fell within the exceptional category in D v UK on the premise that dialysis treatment was not, for whatever reason, available to him in India.
13. EO was born on 24 January 1970 and is a citizen of Ghana. He has a wife and son, now aged 7 in Ghana. On 26 March 2005, he arrived in the United Kingdom on a short term work permit valid until 1 April 2005 in order to work as a musician. EO overstayed.
14. In 2006 he became ill and was diagnosed with end-stage renal failure. He requires dialysis three times a week and the prognosis is that without dialysis he will probably die within two to three weeks. He also suffers from hyper-tension.
15. On 1 March 2010, EO was arrested. He claimed asylum. Following an interview, on 5 May 2010, the Secretary of State refused his application for asylum under para 336 of HC 395 (as amended) and refused to grant him leave to remain under Arts 3 and 8 on the basis of his medical condition. EO appealed to the F-tT. In a determination dated 14 July 2010, Judge Hedworth allowed the appellant's appeal under Art 3 of the ECHR. The Judge accepted that dialysis was available in Ghana but the cost was such that EO and his family would not be able to afford the treatment which would cost around £3,000 every three months. The Judge accepted that without dialysis treatment EO would die within two to three weeks on return to Ghana. Having referred to the case law, Judge Hedworth concluded that EO's case was “an exceptional one” because the high cost of the treatment (which was available) meant that it was a “certainty” that EO could not afford it.
16. The Secretary of State appealed with permission (granted by SIJ Freeman) to the UT. The Upper Tribunal (SIJ McGeachy) concluded that the F-tT had erred in law in finding that EO's case was an “exceptional” one and remade the decision dismissing his appeal under Art 3 (and Art 8) of the ECHR.
17. EO appealed to the Court of Appeal and, following the grant of permission by Hooper LJ, the appeal was allowed by consent and remitted to the UT. Following remittal, the UT (Coulson J and UTJ Latter) again found that the F-tT had erred in law in allowing the appeal and adjourned the hearing in order for the decision to be remade. The re-making of the decision fell to us at the adjourned hearing.
18. In relation to GS we must decide whether Judge Dove QC erred in law in allowing the appellant's appeal and, if he did, we must remake the decision. In relation to EO, the error of law in Judge Hedworth's decision has already been identified by the UT and it falls to us to remake the decision.
19. In both appeals, the appellants rely exclusively upon Art 3 of the ECHR. No reliance is placed upon Art 8. Although we invited them to do so, neither Counsel for the Secretary of State nor for the appellants sought to address us on Art 8 and, indeed, Mr Bourne invited us not to deal with Art 8 as we had not heard submissions in relation to it.
20. We are grateful for the assistance given by Counsel in their helpful written submissions and also in their oral submissions before us. Subsequent to the hearing, at our request, by letter dated 31 July 2012 the Secretary of State provided us with information (including the relevant Enforcement Instructions and Guidance (ch 53)) dealing with the practicalities of removing a person with a medical problem from the UK. The essence of the parties' submissions may be encapsulated as follows.
21. Miss Lieven QC, on behalf of GS submitted that Judge Dove QC had not erred in law in allowing GS's appeal under Art 3. She submitted that the Judge was entitled to take the view that GS's case was “exceptional” as recognised by the Strasbourg Court in D v UK and N v UK. The category of “exceptional” case was not limited to the factual situation in D v UK where the individual was dying and would die in the UK from his underlying condition in any event. The fact that an individual's continued presence in the UK...
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