Nsubuga v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,Lord Justice Latham,LORD JUSTICE LATHAM,LORD JUSTICE BUXTON,LORD JUSTICE SEDLEY,LORD JUSTICE BROOKE |
| Judgment Date | 29 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1414,[2005] EWCA Civ 1683 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C5/2005/0789; C5/2005/0789(A),C5/2005/0789 |
| Date | 29 November 2005 |
[2005] EWCA Civ 1414
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Pill
Lord Justice Latham
Lady Justice Arden
C5/2005/0789; C5/2005/0789(A)
MR REMBERT DE MELLO and MR SATVINDER JUSS (instructed by Coventry Law Centre, Coventry CV1 1NG) appeared on behalf of the Appellant
MR STEVEN KOVATS (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
For the reason I have given, I will ask Lord Justice Latham to give the court's ruling.
This matter comes before us today as an appeal by reason of permission granted on 5th October. At the same time Carnwath LJ, when granting permission, indicated that it was appropriate to expedite this case. The reason for his doing so was because he was informed that it gave rise to a particular issue which should be resolved as soon as possible relating to the interaction of Articles 3 and 8 of the European Convention on Human Rights, in cases involving those who have sought to remain here on the grounds that they are suffering from HIV or AIDS, in the light of the decisions of the House of Lords in R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27 and N v Secretary of State for the Home Department [2005] UKHL 31. The particular concern in this appeal relates to the way that the court should approach an application or appeal based upon an alleged breach of Article 8 in view of the decision of the House of Lords in N which related to Article 3.
In fact, it is apparent that the issue is before this court in a number of other appeals. In particular, there is an appeal to be heard tomorrow but which raises other issues which may or may not in the end be of greater significance, and that is the appeal of T which is 2004/ 1920/C4. There are, however, certainly two other appeals due to be heard at the end of this month, firstly, Mando and others (2004/ 0702/C4) and secondly KM (2004/ 1753/C4).
On the basis of the material that we have, it would seem inappropriate for this court to hear this appeal today, in advance of those appeals, which are appeals which have been listed significantly before this appeal was granted permission. This particular appeal could more appropriately be joined with the two appeals at the end of the month and dealt with together with them, if it is at all possible to achieve that result.
We accordingly propose that this appeal should be stood out of the list today and that it should be listed together with the appeal of Mando and/or the appeal of KM preferably (if this is possible) so that all three appeals can proceed together. This will ensure that the court is able to deal with the issue in question in one hearing. One would anticipate in those circumstances that the estimated length of the hearing would not be significantly increased by the addition of this appeal, bearing in mind the fact that in this case, apart from the core issue of principle, there is not a great deal of subsidiary argument. That would mean that, certainly so far as the respondent is concerned, argument would be confined to the core issue.
Clearly in order to enable the court to deal with the three appeals if, as we say, at all possible, counsel should liaise with each other and with the Court Office in order to provide the court, firstly, with a sensible estimate of the consequences in terms of time and, secondly, to ensure that there is before the court, whatever course is taken, simply one bundle at least of authorities which can assist the court, and also to ensure that such skeleton arguments and other documentation are so edited as to avoid duplication.
In those circumstances, it seems to us that the right order is that the case should be stood out of the list today on the basis that I have indicated. As far as costs are concerned, the costs should be reserved.
ORDER: Appeal adjourned; costs reserved.
(Order not part of approved judgment)
[2005] EWCA Civ 1683
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Brooke
(Vice President of The Court of Appeal, Civil Division)
Lord Justice Buxton
Lord Justice Sedley
C5/2005/0789
MISS L GIOVANETTI (instructed by TERENCE HIGGINS TRUST) appeared on behalf of the Appellant
MR R DE MELLO (instructed by TREASURY SOLS) appeared on behalf of the Defendant
This is an appeal from a determination of the Immigration Appeal Tribunal in yet another case where the appellant has the misfortune to suffer from HIV/AIDS and it is proposed by the Secretary of State to remove her from this country to her country of origin, where the therapy that she has been receiving here is almost certainly not going to be available to her. There is in fact now only one point that is open to the appellant in this Court, permission to assert various other complaints having been refused at various stages.
I can state the background really quite shortly. The matter was considered by an adjudicator in January 2004 who made various findings as to the present state of the applicant and her future fate. She is a citizen of Uganda and it is to there, of course, that the Secretary of State proposes to remove her. At paragraph 37 of his determination the adjudicator held, as a fact, that the particular drug therapy that she required for her condition and is receiving here is not currently available in Uganda and there was no indication when it might be so available. He then continued in these terms in paragraph 38:
"I also find on the basis of the unchallenged evidence of Dr Walsh that it is reasonably likely that there would indeed be an adverse affect on the Appellant's health. Bearing in mind the nature of HIV, I am prepared to accept that there is a real risk that it could develop into full-blown AIDS and lead to death. This has to be compared with the evidence of Dr Walsh that the Appellant would have a very good life expectancy in this country with her current drug therapy."
He said at paragraph 39 that the he was satisfied that the degree of harm involved was sufficiently serious to engage Article 8.
He then had to consider whether it would be a disproportionate response by the Secretary of State, bearing in mind the claims of effective immigration control, to expel this lady to Uganda. The adjudicator said this in his paragraph 45, having gone through a number of other considerations that in my judgement do not now call for investigation:
"The final, and for me decisive factor that I take into account is the medical situation of the appellant and the lack of availability in Uganda of the specific drug combination required by her to continue stabilising her HIV. This in itself distinguishes this case from cases such as K where the argument had turned around affordable or treatment rather than actual availability.
Whilst I would accept that this is something of a finely balanced case, taking all the above factors into account I have come to the conclusion that to remove the Appellant from the United Kingdom in the circumstances would be disproportionate and not necessary in a democratic society."
He therefore found that the expulsion would be a breach of this country's obligations under Article 8 of the Convention.
The Secretary of State sought permission to appeal to the Immigration Appeal Tribunal. Criticism was made of the terms in which that permission was sought and as to whether a point of law was engaged by those terms, but that matter was considered at the permission stage in this court and permission to pursue...
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