N v Secretary of State for the Home Department

JurisdictionUK Non-devolved
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date04 July 2007
Neutral Citation[2005] UKHL 31
CourtHouse of Lords
Date04 July 2007

[2005] UKHL 31

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

N (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

This appeal raises a question of profound importance about the human rights obligations of the United Kingdom in respect of the expulsion of people with HIV/AIDS. The appellant, a woman 30 years of age, comes from Uganda. She was born there in December 1974. She came to London on a flight from Entebbe in March 1998. She was refused leave to enter this country. Her claim for asylum was rejected. The Secretary of State proposes to expel her. But there is a tragic complication: she suffers from advanced HIV/AIDS ('full blown AIDS', in the old terminology).

2

When the appellant arrived here she was very poorly. Within hours she was admitted to Guy's Hospital. She was diagnosed as HIV positive, with an AIDS defining illness. In August 1998 she developed a second AIDS defining illness, Kaposi's sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10.

3

As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the appellant is now much better. Her CD4 count has risen to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for 'decades'. But without these drugs and facilities her prognosis is 'appalling': she will suffer ill-health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it.

4

The cruel reality is that if the appellant returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine switched off.

The proceedings

5

The history of the appellant's proceedings can be summarised shortly. On 28 March 2001 the Secretary of State refused her application for asylum. On 10 July 2002 the adjudicator, Mr Paul Norris, dismissed the appellant's appeal from that asylum decision. But he allowed her appeal on the ground that to return her to Uganda would be a breach of her Convention right under article 3 of the European Convention. He said that on the evidence her case for protection under article 3 was 'overwhelming'.

6

On 20 February 2003 the Immigration Appeal Tribunal allowed an appeal by the Secretary of State. The appellant appealed to the Court of Appeal. The court, comprising Laws, Dyson and Carnwath LJJ, held unanimously that the tribunal's conclusion was flawed for want of legally sufficient reasons: [2004] 1 WLR 1182. But by a majority, comprising Laws and Dyson LJJ, the appeal was dismissed on the ground that the appellant's evidence did not bring her case within that 'extreme' class of case to which it must belong if a claim based on article 3 is to succeed: paras 43 and 49. Carnwath LJ would have remitted the case to the tribunal for redetermination.

Article 3

7

I mention first, to put on one side, the fact that the Secretary of State has wide powers to grant the appellant leave to remain here. The existence, and exercise, of these powers are not in question on this appeal. The sole legal issue before the House is whether deporting the appellant to Uganda would be incompatible with her Convention right under article 3 of the European Convention. Article 3 prohibits torture and, more widely, 'inhuman' treatment.

8

Clearly there is no question of any breach of article 3 so long as the appellant remains here. So long as she is in this country she, like everyone else here, will continue to receive the medical treatment on which her health and life are dependent. The question is whether the act of expelling the appellant would itself be inhuman treatment within article 3. Unlike the separatist Sikh in Chahal v United Kingdom (1996) 23 EHRR 413, the appellant if expelled is not at risk of being subjected to intentional ill-treatment in her home country. The adverse prospect confronting the appellant in Uganda is of a different character. It derives from Uganda's lack of medical resources compared with those available in the United Kingdom. Thus the all-important question is whether expelling the appellant would be inhuman treatment within article 3 given the uncertainties confronting her in Uganda through shortage of the necessary drugs and medical facilities there.

9

If the appellant were a special case I have no doubt that, in one way or another, the pressing humanitarian considerations of her case would prevail. But in principle the law should seek to treat like cases alike. A similar principle applies to the exercise of administrative discretions. Sadly the appellant is not a special case. In its overall shape the appellant's case as a would-be immigrant is far from unique. As everyone knows, the prevalence of AIDS worldwide, particularly in southern Africa, is a present-day human tragedy on an immense scale. Each case will differ in detail and degree. But a common feature in all these immigration cases is that the would-be immigrant faces a significantly shortened expectation of life if deported. The AIDS illness of the would-be immigrant is currently under control by treatment received here while the immigration process is being completed, but his medical condition will deteriorate rapidly and fatally if he is deported and in consequence the necessary medication is no longer available to him.

10

These brief statements of the problem encompass much human misery. No one can fail to be touched by the plight of the appellant and of others in a similar position. The prospect facing them if returned to their home country evokes a lasting sense of deep sadness.

The Strasbourg jurisprudence

11

It is against this background that the House must decide whether article 3 can properly be interpreted to afford protection against expulsion in cases such as that of the appellant. In reaching its decision the House is required to take into account the Strasbourg jurisprudence: section 2(1) of the Human Rights Act 1998. The principal decisions of the European Court of Human Rights are reviewed by my noble and learned friends Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood. As appears from those reviews, the Strasbourg jurisprudence, it has to be said, is not in an altogether satisfactory state. The difficulty derives from the decision in D v United Kingdom (1997) 24 EHRR 425, concerning the expulsion of an AIDS sufferer to St Kitts, and the basis on which the Strasbourg court has subsequently sought to distinguish that case.

12

In the case of D the court extended the reach of article 3. The court noted, at paragraph 46, that contracting states have the right, as a matter of well-established international law and subject to their treaty obligations including the European Convention, to control the entry, residence and expulsion of aliens. Having noted the Chahal type of case, the court said it must reserve to itself sufficient flexibility to consider the application of article 3 in other contexts: paragraph 49. The court then applied article 3 in what it described as the 'very exceptional circumstances' of that case.

13

The difficulty posed by this decision is that, with variations in degree, the humanitarian considerations existing in the case of D are not 'very exceptional' in the case of AIDS sufferers. In the case of D the applicant was 'in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts': see the court's appraisal of the 'exceptional circumstances' of D's case in Bensaid v United Kingdom (2001) 33 EHRR 205, 218, para 40. If unavailability of appropriate medical care or family support was regarded as an exceptional circumstance for the purpose of article 3 in the case of D, why is this not equally so in the case of other AIDS sufferers? In D's case there was the additional feature that D was dying. But the appellant's condition in the present case will rapidly become terminal, as soon as her life-preserving medication is discontinued. This prompts a further question: why is it unacceptable to expel a person whose illness is irreversible and whose death is near, but acceptable to expel a person whose illness is under control but whose death will occur once treatment ceases (as may well happen on deportation)?

14

As I see it, these questions are not capable of satisfactory humanitarian answers. This highlights, if I may respectfully say so, that on this subject the Strasbourg jurisprudence lacks its customary clarity. A supposed difference of degree in humanitarian appeal, with emphasis on a claimant's current state of health, is not a satisfactory basis for distinguishing between D's case and other AIDS cases. If a difference of degree in humanitarian appeal were the basis for distinguishing D's case from the present case I would unhesitatingly share the adjudicator's view that the appellant's case based on article 3 is overwhelming. The humanitarian considerations in the present case are of a very high order.

Article 3 and medical care for would-be immigrants

15

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