N v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Dyson,Lord Justice Carnwath |
| Judgment Date | 16 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1369 |
| Docket Number | Case No:C1/2003/0915 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 October 2003 |
[2003] EWCA Civ 1369
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Lord Justice Laws
Lord Justice Dyson and
Lord Justice Carnwath
Case No:C1/2003/0915
Mr R Scannell (instructed by Lawrence & Co) for the Appellant
Ms L Giovannetti (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
Ms F Webber (Intervenor) (instructed by The Terrence Higgins Trust)
INTRODUCTORY
This is an appeal against a decision of the Immigration Appeal Tribunal ("the IAT") given on 20 February 2003 when it allowed the Secretary of State's appeal against the determination of the Adjudicator promulgated on 10 July 2002. The Adjudicator had allowed the appellant's appeal against the decision of the Secretary of State, made on 26 April 2001, by which he refused the appellant leave to enter the United Kingdom. Permission to appeal to this court was granted by Pill LJ and Maurice Kay J on 26 June 2003, following earlier refusal by Kennedy LJ on 2 June 2003 on consideration of the papers only. I should add that shortly before the substantive hearing in this court the Terrence Higgins Trust ("the THT") applied to intervene in the appeal. I directed that while the court would take account of the skeleton argument submitted by the THT, we would decide at the substantive hearing of the appeal whether or to what extent we wished to hear oral submissions on its behalf. In the event we received without objection certain further documentation from the THT but declined to hear oral argument from its counsel Ms Webber. We are grateful for the documentary materials which the THT has provided.
THE FACTS
The appellant was born on 24 December 1974 and is a citizen of Uganda. She entered the United Kingdom on 28 March 1998 under an assumed name with a passport to which she was not entitled. At the time of her arrival she was seriously ill, and was admitted to Guys Hospital on the same day or within a day or two. She was diagnosed HIV positive. She was to say (and it is not I think disputed) that she had no idea that she had this condition when she left Uganda, and did not come to this country in order to obtain medical treatment.
On the 31 March 1998, when she was already in hospital, an asylum application was lodged by solicitors on her behalf. Her claim was based on allegations of ill treatment, including rape, by the National Resistance Movement in Uganda, and she asserted that she was in fear for her life and safety if she were returned. By 23 November 1998 she had developed what is sometimes called full blown AIDS. That appears from a medical report of that date provided to her solicitors by Dr Larbalestier. He stated that the appellant had been found to be suffering from disseminated mycobacterium TB, and also a form of cancer known as Kaposi's sarcoma. These are "AIDS defining" illnesses. The appellant was treated with chemotherapy for both conditions. During 1998 she was also clinically depressed, for which appropriate medication was prescribed. In his report of 23 November 1998 Dr Labalestier said this:
"From an HIV point of view, 'M' is extremely advanced. Her CD4 count at presentation was just 20 cells/mm 3, reflecting considerable immunosuppression. Her viral load was around 50,000 copies/ml at baseline. Anti-retroviral therapy has been problematic, with recurrent episodes of abnormal liver function, associated with fever, but she has recently tolerated a combination of stavudine, nevirapine and lamivudine.
Without active treatment 'M's' prognosis is appalling. I would anticipate her life expectancy to be under twelve months if she were forced to return to Uganda, where there is no prospect of her getting adequate therapy.
From a mental health point of view, 'M' is now stable…"
It is convenient at this stage to give some account of HIV/AIDS, so that the expert material may be properly understood and the issues in this appeal in due course brought into focus. What follows is taken from the notes put in by the THT described as a "summary of evidence on HIV/AIDS and treatment". HIV (Human Immunodeficiency Virus) attacks the immune system. As the immune system weakens, the sufferer develops AIDS (Acquired Immune Deficiency Syndrome). He or she is thereby rendered vulnerable to various diseases and in particular what are called opportunistic infections. Eventually one or more of these proves fatal. The progress of AIDS is monitored by what is called the CD4 cell count, which decreases as the immune system weakens, and by the viral load (VL) which increases. The CD4 cell count in a normal healthy individual is over 500. Many infections which may attack an AIDS sufferer are more prevalent in Uganda than in the United Kingdom. They include various bacterial infections, such as typhoid and salmonella, and also viral infections, including two kinds of herpes, and fungal infections. While HIV/AIDS cannot be cured, the progression of the virus can be halted or reversed by means of what is called anti-retroviral therapy. Since the mid-1990s this treatment has taken the form of triple combination therapy: that is, the use of three different types of anti-retroviral drugs in combination. The value of the use of multiple drugs in this way arises because the HIV virus is inclined to mutate, so as rapidly to become resistant to any particular anti-retroviral drug. The use of triple combination therapy in the UK has had a dramatic effect on the life expectancy of persons infected with HIV and those suffering from AIDS. Material produced by the THT shows that deaths in the UK associated with HIV infection have fallen to about 400 per year in 2003; the equivalent death rate figure in Uganda is stated to be about 100,000.
As I have indicated the Secretary of State refused the appellant's asylum claim in April 2001. By her appeal to the Adjudicator, before whom unaccountably the Secretary of State was not represented, the appellant again canvassed the merits of that claim, but also sought the protection of Articles 3 and 8 of the European Convention on Human Rights ("ECHR"). The adjudicator dismissed the asylum appeal, but allowed the appeal based on Article 3. Accordingly he did not find it necessary to determine the case put forward under Article 8.
As is well known Article 3 ECHR provides:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
A major element in Mr Scannell's submissions on this appeal has been that the IAT failed to confront unimpeachable findings of fact made by the Adjudicator in the appellant's favour, or implicitly departed from those findings without giving proper reasons for doing so. That being so, it is important to scrutinise the Adjudicator's determination, as well of course as that of the IAT, with some care.
THE ADJUDICATOR
The Adjudicator accepted that on arrival in the UK the appellant did not know that she was suffering from a life threatening illness. He then stated (paragraph 10):
"I find that the condition from which she now suffers is indeed AIDS and that without the sophisticated treatment which she is now receiving she would die within a matter of months. I find that the treatment she needs would not be available to her in Uganda."
In reaching that conclusion the Adjudicator referred to three reports prepared by Dr Jeanette Meadway, which he found to be "particularly impressive", and saw "no reason why [he] should not accept the opinions of Dr Meadway in their entirety". Dr Meadway is the Medical Director Mildmay Hospital UK.
In her first report Dr Meadway stated that without treatment to improve the appellant's CD4 count her life expectancy would be less than one year, and the CD4 count would only improve if there were regular supplies of medication at the full dose. She stated that the appellant's then current treatment regime would cost $246 per month in Uganda, but if it had to change (presumably because of the mutation of the virus) that could increase to something like $397. There was no question, she stated, of "the ordinary person" suffering HIV in Uganda getting any combination therapy. She set out other detailed contentions, and then in her second report sought to "reinforce" her earlier comments, stating that the appellant's outlook without combination therapy would be "particularly poor"; her Kaposi's sarcoma would be likely to reactivate. The form of triple combination therapy provided for her in the UK would be completely out of her reach; so would a dual therapy regime, which in any event would be unlikely to maintain her existing state of health. She would also be unlikely to benefit from medication available under a particular United Nations programme, since it had reached "only 905 Ugandans out of 820,000".
The Adjudicator also indicated that he had "drawn heavily" on the appellant's own statement of 5 April 2002, and her oral evidence. She had stated that five of her six siblings died of HIV-related conditions, as did other close relatives. Her parents are dead. She was separated from her former partner, who had the care or custody of her two children. If she were returned to Uganda it would be to her home village of Masaka in the south of Uganda, some eighty miles from Kampala. There is only a small hospital at Masaka which, she stated, would not be able to deal with AIDS-related illnesses, and she would have to live in overcrowded conditions. She would not be able to work; she is not strong enough to work here, in the UK's more...
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