N v UK: No Duty to Rescue the Nearby Needy?
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00769.x |
| Published date | 01 September 2009 |
| Date | 01 September 2009 |
CASES
NvUK:NoDutytoRescuetheNearbyNeedy?
Virginia Mantouvalou
n
This article discusses the deportation of a seriously ill foreign national to her country of origin,
where she would face a high risk of extreme deterioration of her health due to the inadequate
medical treatment. It criticises the reasoning of the judgment NvUK of the European Court of
Human Rights, and explores the circumstances under which removal of a severely ill non-
national constitutes a breach of the prohibition against inhuman and degrading treatmentunder
the European Convention on Human Rights.
INTRODUCTION
What duties do we owe to a fellowcitizen who faces severe su¡ering and death
due to a life-threateni ngill ness? Do we have any similar obligation towards a for-
eigner living in a remote country, who su¡ers from such a condition? Andwould
the answer tothis latter question di¡er, if the distant needyhappened to be within
our borders? These complex moral questions were explored in ajudgment of the
Grand Chamber of the European Court of Human Rights (ECtHR), NvUK
(N),
1
which involved the issue of whetherthe removal from the UKof a Ugandan
national HIV-positive asylum seeker wouldviolate the European Convention on
Human Rights (ECHR or Convention). The case split the 17-judge Grand
Chamber with the majority rejecting the claim of the applicant to stay in the
UK, and dissenting Judges Tulkens, Bonello and Spielmann arguing that her
deportation would breach the ECHR.
This article presents the judgment and identi¢es its keyprinciples. Itscrutinises
the reasoningof the majorityof the ECtHR that held that returning the seriously
ill applicant to her country of origin, which would put herat a high risk of severe
su¡eringand death, wouldnot constitute inhuman and degrading treatment.The
Court put emphasis, ¢rst, on the fact that Ms N’splight would stem from natural
causes and not from human action, and second,on the idea thatthe Convention is
primarily not concerned with wrongs that result from socio-economic depriva-
tion. This article suggests that both statements are misleading, for in exploring
whether thesituation of the applicant was soextreme as to warrant herprotection
under the ECHR, the Court misplaced its focus. I then propose an alternative
principle that was at issue here, the ‘duty to rescue the nearby needy’, and set out
the criteriagrounding state responsibility under the ECHR.What emergesi n my
n
University of Leicester, School of Law. Thanks are due to Leto Cariolou, George Letsas, Ach illes
Skordas,Charlie Webb, Leif Wenar, RobinWhite and an anonymous refereefor comments on a draft
of this article.
1NvUK App No26565/05,Grand Chamber Judgment of 27 May20 08.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(5) 815^843
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