RS and Others (Zimbabwe – AIDS)

JurisdictionUK Non-devolved
JudgeAllen,Latter,Kekic
Judgment Date03 March 2010
Neutral Citation[2010] UKUT 363 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date03 March 2010

[2010] UKUT 363 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Senior Immigration Judge Allen

Senior Immigration Judge Latter

Senior Immigration Judge Kekic

Between
RS, EC and BR
Appellants
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellants: Ms K Monaghan QC, Ms S Knight and Mr A MacKenzie instructed by Luqmani Thompson & Partners in the case of RS instructed by Refugee & Migrant Justice in the case of EC instructed by Harrison Bundey in the case of BR

For the Respondent: Ms E Grey and Mr C Thomann, instructed by the Treasury Solicitor

RS and Others (Zimbabwe — AIDS) Zimbabwe CG

  • (1) A significant number of people are receiving treatment for HIV/AIDS in Zimbabwe, and hence a Zimbabwean returnee will not succeed in a claim for international protection on the basis of a diagnosis of HIV/AIDS unless their case crosses the threshold identified in N v United Kingdom .

  • (2) Though there is some evidence of discrimination in access to AIDS medication and food in Zimbabwe, it is not such as to show a real risk of such discrimination.

  • (3) The return to Zimbabwe of a Zimbabwean diagnosed with HIV/AIDS does not place the United Kingdom in breach of its obligations under the Disability Discrimination Act.

DETERMINATION AND REASONS
1

These are the appeals of three female Zimbabwean nationals born in June 1977, 24 September 1964 and 16 November 1957 respectively. They all claim to have a well founded fear of persecution if returned to Zimbabwe as they would be unable to demonstrate loyalty to ZANU PF, their removal would breach their human rights (Articles 3, 8 and 14) and their rights under section 21D and 21E of the Disability Discrimination Act 1995 would be breached. All three appellants are HIV positive and are receiving NHS treatment.

RS
2

This appellant was born in Chigutu. She was educated in Gokwe and last lived in Dema Seke, about an hour's journey from Harare. She arrived at Gatwick airport on 21 February 2001 to visit her husband who was a student here at that time (although in her subsequent asylum interview in October 2006, she claimed that he had returned to Zimbabwe in the year 2000). He had entered the UK as a visitor in February 2000 and thereafter remained as a student, with leave. The appellant was admitted as a visitor for six months and subsequently commenced Bible studies here as a result of which she was granted 12 months' leave as a student (until 30 September 2002). Their children remained living in Zimbabwe and were cared for by relatives in Dema. In August 2001 both she and her husband were diagnosed as HIV-positive and both commenced anti-retroviral treatment (ART). Her husband was said to have returned to Zimbabwe following the death of his father in 2002.

3

On 25 September 2002, before the expiry of her leave to enter, the appellant made an application to remain for a limited period to undergo private medical treatment. However, a letter from her former representatives accompanying her application form indicated that she was entitled to benefit from NHS treatment and the application was treated by the Secretary of State as having been made to receive free medical treatment for an indefinite period. The appellant stated on her application form that she intended to leave the UK in October 2005 and that she received £600 every month from a relative or friend. A letter dated 16 September 2002 from her consultant, Mr Derrick Evans of Southend Hospital, confirmed that although she had been diagnosed with HIV in August 2001, she had probably had the disease for approximately seven or eight years.

4

The application was refused on 5 January 2004. The Secretary of State balanced the compassionate aspects against the need to maintain immigration control. He considered that the resources of the NHS were limited and that it would be unrealistic to expect the NHS to treat everyone who could not obtain treatment of a similar standard in their own country. He considered that the medical evidence indicated that the appellant was fit to travel, and that she had been working for a long period of time. He noted that medical treatment was available in Zimbabwe and that the appellant's husband, three children and other family members lived there. He noted that the appellant's studies had been funded by her sisters-in-law, P (in the USA) and M (in the UK), and that funds were said to be available for the cost of private treatment in the UK. He considered there was no reason why these funds could not be provided to the appellant in Zimbabwe particularly as treatment would be cheaper there than in the UK. He concluded that the immigration rules made no provision for leave to be granted for the purpose sought and that under the applicable policy, this was not a case where exceptional leave should be granted.

5

An appeal was lodged against that decision and came before Mr Gillespie, sitting as an adjudicator at Hatton Cross on 21 October 2004. In support of her appeal, the appellant provided a statement dated 11 October 2004. She maintained that she had been born in Chigutu, a rural district about 110 km south-west of Harare. Her parents were alive and lived in Gokwe, several hundred kilometres west of Harare. They moved there in 1990. She claimed to have one sister and four brothers; a fifth brother had died the previous year. Her sister, J, was married and had four children. Her brother L was also married with two children. These siblings lived with their families in Gokwe. Her three younger brothers were unmarried and lived with their parents. Two of them were still at school. The rest of her siblings were unemployed. The appellant stated that she had lived in Gokwe until 1995 when she was married and went to live in Dema. She has two children. They are currently looked after by her sister-in-law, F. The appellant claimed that she and her family had always been MDC supporters. This had caused problems with food distribution in the village. When food arrived it was distributed according to a list drawn up by regional ZANU PF supporters who were able to identify the families who did not regularly attend their meetings. They were then put last on the list. She maintained that in August 2004 her brother-in-law was killed and his house was burnt down. The hospital refused to treat him because he was an MDC supporter and he died of his injuries. She stated that her husband had come here to visit his sister and had subsequently obtained a student visa to study English on a three-year course. He stayed with his sister M, with whom the appellant also lived after her arrival. M was recognised as a refugee in 2002. The appellant stated that her husband returned to Zimbabwe in August 2002 following the death of his father and was not receiving any treatment as there was none available in his area.

6

The Adjudicator found that the appellant would not have access to consistent and adequate ART in Zimbabwe and that her family was not affluent and could not guarantee financial assistance. He noted that the appellant's mother-in-law was said to have fallen seriously ill while visiting P in the USA and the appellant maintained that the claim in her application form that she received £600 a month had been fabricated by her previous representatives. He found that on return to Zimbabwe it was likely that the appellant would live in circumstances of privation. He found that she would be unable to access private treatment. He considered there would be a rapid decline in the appellant's health on return and that life expectancy would be no more than one or two years at most as against a possible 10 years on her present regimen. He found that the appellant's husband lived in poverty and was unable to obtain medical treatment without production of a ZANU PF card. He lived in fear of threats of political intimidation. His brother had been killed the previous month and his house had been destroyed. He concluded that in the “peculiar circumstances” of this case the Article 3 threshold had been met and allowed the appeal. The determination was promulgated on 29 October 2004.

7

On 3 November 2004, the respondent applied for permission to appeal. It was argued that the adjudicator had failed to take into account the jurisprudence of the higher courts and that he had failed to reason how the appellant would fall into the exceptional category as outlined in N v Secretary of State for the Home Department [2003] EWCA Civ 1369, given that she had family in Zimbabwe and that medical treatment, whilst expensive, would be available. Permission to appeal was granted on 25 January 2005. When the appeal came before Senior Immigration Judge Warr on 12 July 2006, he found with the consent of the parties that following the decision of the Tribunal in JM* Liberia [2006] UKAIT 00009, the Tribunal was without jurisdiction as the appellant's removal was not imminent, this being a variation appeal.

8

Despite the agreement of the parties, the appellant's representatives sought permission to appeal to the Court of Appeal against that decision. It was submitted that JM was wrongly decided and the Tribunal had erred in concluding that on an appeal against a refusal to vary leave, the question of the compatibility with human rights of a hypothetical return was not justiciable. That application was refused by Senior Immigration Judge Jordan on 7 August 2006. A renewed application was made to the Court of Appeal on 27 August 2006. It was argued that as permission to appeal had been granted in the case of JM and was listed for hearing by the Court of Appeal, that the application in the instant case should have been stayed until judgment was issued in JM or should have been granted pending judgment. On 29 December 2006 Laws LJ ordered that the court was satisfied that the appeal should be allowed and...

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