GS (Article 3 - health - exceptionality) India
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bannatyne |
| Judgment Date | 16 November 2010 |
| Neutral Citation | [2011] UKUT 35 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 November 2010 |
[2011] UKUT 35 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lord Bannatyne
SENIOR IMMIGRATION JUDGE Allen
For the Appellant: Mr C Avery, Home Office Presenting Officer
For the Respondent: Mr D O'Callaghan & Miss J Lean
GS (Article 3 — health — exceptionality) India
In D v United Kingdom [1997] 24 EHRR 43 , the claimant came into the exceptional category because he was beyond the reach of medical treatment, and hence no medical care obligation wasplaced on the expelling state. A seriously ill claimant who will, if he remains, require continuing medical treatment for the foreseeable future, is not an exceptional case.
The appellant appeals against the decision of Immigration Judge Dove Q.C., of 14 June 2010 reversing the appellant's decision of 12 March 2010 refusing the respondent's application for leave to remain.
The respondent is an Indian citizen and was granted entry clearance as a working holiday maker, with such leave valid until 29 October 2006.
He entered the United Kingdom on 1 November 2004.
He overstayed.
On 28 January 2009, the respondent applied for leave to remain in the United Kingdom on compassionate grounds. The basis of his claim was that he suffered from kidney failure and required regular dialysis, all as further detailed below.
The application was refused by way of a decision dated 12 March 2010 and directions were given for his removal from the United Kingdom.
The respondent appealed to the First Tier Tribunal (Immigration & Asylum Chamber) and his appeal was allowed by Immigration Judge Dove, Q.C. The Immigration Judge allowed the appeal on the basis of a breach of article 3 of the ECHR.
There was no dispute between the parties as to the respondent's medical history which was as follows:
In 2008 the respondent was suffering from high blood pressure and attended for a blood test.
On 5 January 2009, the test confirmed that he had medical problems relating to his kidneys. He has advanced chronic kidney disease. This is an irreversible condition.
He requires dialysis three times a week for four hours per session.
The respondent only has a single kidney, likely due to congenital absence of his right kidney.
Doctor James Medcalf, Consultant Nephrologist, University Hospital of Leicester, detailed in his report of 27 May 2010:
“He (the respondent) is dependant on this treatment to remain alive and well, and would expect he would die after a period of one to two weeks if the treatment was discontinued. (The respondent) is a good candidate to receive renal transplant, and we have been discussing with him whether any of his family could offer a live kidney donor for him. However, there are no firm plans to proceed with this at present.”
The respondent is only able to walk for 10 to 15 mins at a slow pace.
The following facts were either accepted or not challenged by the appellant before the Immigration Judge. They were equally accepted or not challenged before us.
The respondent has uncles, aunts and cousins settled in the United Kingdom.
He has a mother and two brothers resident in India.
His mother does not enjoy good health.
The nearest hospital to his village which is able to provide dialysis is situated in Chandigar, some 300 kilometres away.
Dialysis would cost £10,000 to £12,000 rupees per week (£138 – £166 per week).
The respondent could not afford to:
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(i) pay for dialysis and
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(ii) pay to support himself in Chandigar.
The respondent would be unable to work so as to support himself.
His mother and brothers are not able to support the respondent so as to secure medical treatment.
The Immigration Judge, having reminded himself of the principles as outlined in D v United Kingdom [1997] 24 EHRR 43; Ben Said v United Kingdom (2001) 33 EHRR 10 and N v SSHD [2005] 2 AC 296 decided that the respondent's medical circumstances were such as to bring him into the exceptional category whereby his removal from the United Kingdom would amount to inhuman treatment of the kind prescribed by article 3 of the ECHR. Having found a breach of article 3 he did not turn to consider whether there had been a breach of article 8 which was also argued before him.
The Immigration Judge's reasoning for his decision can be summarised by reference to the following section in paragraph 10 of his determination:
“11. Whilst theoretically there may be medical treatment available to him in India, the practical reality is that there would be no opportunity for him to realistically avail himself of the dialysis which is essential to prevent his early death. In these circumstances in my judgement, his return to India would amount to inhuman treatment of the kind prescribed by Article 3 …..”
Both parties made oral submissions. The appellant provided a detailed skeleton argument. In summary, it was submitted that although the Immigration Judge had referred himself to the correct authorities, he had not properly applied the principles enunciated therein to the circumstances of the instant case. In particular it was submitted that the judge had erred in law by holding that the respondent's inability to access available treatment in India met the exceptional test as set out in the authorities.
In development of this argument it was said that the Immigration Judge when considering whether the exceptional test had been met had failed to take proper account of what was stated to be the general position set out by Lord Nicholls of Birkenhead in the N (FC) v SSHD case at paragraph 18:
“No one could fail to be moved by the appellant's situation. But those acting on her behalf are seeking to press the obligations arising under the European Convention too far. The problem derives from the disparity of medical facilities in different countries of the world. Despite this disparity, an AIDS sufferer's need for medical treatment does not, as a matter of Convention right, entitle him to enter a contracting state and remain there in order to obtain the treatment he or she so desperately needs.”
Moreover, it was submitted that the point which was constantly emphasised in the authorities was that in order to succeed an individual must bring himself into the very exceptional category. In the instant case, the Immigration Judge had allowed the appeal on the basis that although appropriate treatment was available to the respondent in India, the practical reality was that he would not be able to access it. It was submitted that in holding that this factor brought the respondent into the exceptional category the Immigration Judge had failed to have regard to the observations made by Lord Hope of Craighead at paragraph 43 in the N (FC) v SSHD case where he was considering the tensions between the D v UK case where it was held that there was a breach of article 3 and other European decisions on the matter in which it had been held that there was no breach. Lord Hope he argued had distilled the following principle at paragraph 43:
“Two points stand out from this decision. The first is that it was the applicant's present state of health that was subjected to close scrutiny. This is, of course, appropriate where a decision is being taken on grounds of humanity, because it ought to be based on the most up to date information that is available. But there is more in the point than that. It was the applicant's present state of health that was critical to the decision in D v United Kingdom that because of his present state of health his case was exceptional. The second is that the court did not apply the same high standard of scrutiny to the applicant's future prospects were she to be returned to Zambia. The question whether she would be able to afford the treatment that was said to be available there was not addressed, nor was her fate were it to turn out that she could not afford it. It was enough that the treatment was available”.
In light of the observations made by Lord Nicholls of Birkenhead and Lord Hope of Craighead, it was submitted that the Immigration Judge had misunderstood the principles as set out above and had misapplied these when considering the circumstances of the present case. It was submitted that had he correctly applied these principles to the circumstances of the instant case, then he would not have allowed the appeal. There was accordingly a material error of law.
Lastly we were taken to a recent consideration of these issues in the case of KH (Afghanistan) [2009] EWCA CIV 1354. This case involved an Afghani national who suffered from mental health problems. Lord Justice Longmore made the following observations when applying the exceptionality test to the facts of that case;
“The truth is that the presence of mental illness amongst failed asylum seekers cannot really be regarded as exceptional. Sadly, even asylum seekers with mental illness who have no families can hardly be regarded as “very exceptional”. If this case is to be regarded as a very exceptional one, there will inevitably be cases which will be indistinguishable. A person with no family would have to be equated with the person who has a family but his members are unwilling or unable to look after him or her. I cannot think that Baroness Hale had such a wide category in mind. In order for a case to be “very exceptional” it would have to be exceptional inside the class of person with mental illness without family support. Perhaps a very old or very young person would qualify but hardly an ordinary adult”.
It was argued that with respect to the...
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