RS (Zimbabwe) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Pill,Lady Justice Arden,Lord Justice Longmore
Judgment Date18 July 2008
Neutral Citation[2008] EWCA Civ 839
Date18 July 2008
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2007/2488

[2008] EWCA Civ 839

IN THE SUPREME COURT OF JUDICATUR

COURT OF APPEAL (CIVIL DIVISION

ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

JUDGE GLEESON

HR/00707/2004

Before:

Lord Justice Pill

Lady Justice Arden and

Lord Justice Longmore

Case No: C5/2007/2488

Between:
Rs (Zimbabwe)
Appellant
and
Secretary of State for the Home Department
Respondent

Mr Stephen Knafler and Ms Abigail Smith (instructed by Messrs Luqmani Thompson & Partners) for the Appellant

Mr Parishil Patel (instructed by Treasury Solicitors) for the Respondent

Hearing date: 15 April 2008

Written submissions 20 June 2008

Lord Justice Pill
1

This is an appeal by RS (Zimbabwe) against a decision of the Immigration Appeal Tribunal dated 17 July 2007 whereby the Tribunal dismissed an appeal by RS against a decision of the Secretary of State for the Home Department's (“The Secretary of State”) refusal on 5 January 2004 to allow RS to remain in the United Kingdom on human rights grounds.

2

An appeal against the Secretary of State's refusal had been allowed by an Adjudicator on human rights grounds on 29 October 2004 but that appeal was subsequently held to have been allowed in excess of jurisdiction. The matter reached this court which, by consent, remitted RS's appeal to the Tribunal. In the decision complained of, the Tribunal found that the Adjudicator had made a material error of law and substituted its own decision that the human rights appeal should be dismissed.

3

RS was born in Zimbabwe on 10 June 1977. On 21 February 2001, she arrived in the United Kingdom with six months leave as a visitor. In August 2001 she was diagnosed with HIV. She was granted leave to remain as a student until 30 September 2002 but an extension of that leave was refused.

4

The Adjudicator held that “in the peculiar circumstances of this case it would be contrary to the obligations of the United Kingdom under article 3 of the European Convention on Human Rights (“the Convention”) to remove the appellant to Zimbabwe”. The Adjudicator considered the decision of this court in N v Secretary of State [2003] EWCA Civ 1369. The court held, by a majority, that the decision of the European Court of Human Rights (“ECtHR”) in D v United Kingdom [1997] 23 EHRR 423, where the extent of the article 3 duty towards sick people was considered, did not cover the case of N. The House of Lords unanimously dismissed the applicant's appeal against that finding ([2005] UKHL 31).

5

The Tribunal considered the appeal on the basis of the judgments in the Court of Appeal in N and the House of Lords decision does not appear to have been cited at the hearing, where both parties were represented. (The House of Lords decision post-dated that of the Adjudicator, but not the Tribunal).

6

The Tribunal held, at paragraph 13:

“On that point, the appellant's evidence is that her husband is still alive and reasonably well and that, with his family's help he has been able to find at least some money for treatment. There is not total denial of treatment as in D v UK… on that basis, the Zanu-PF angle is merely an aspect of the difficulty in accessing treatment. It is not sufficiently different from the facts considered in N to amount to a special factor and to entitle the Immigration Judge to allow the appeal”

7

In a careful determination, the Adjudicator had set out, at paragraph 3, the personal circumstances of the appellant and her husband. He had returned to Zimbabwe in August 2002:

“The area in which they live is impoverished and has suffered violence at the hands of Zanu-PF supporters because it was an area of MDC support. There is no source of treatment available there for HIV and the appellant's husband is not receiving treatment … The appellant's husband, in common with other non Zanu-PF supporters, finds it difficult to purchase food or even to obtain general medical assistance.”

The appellant is stated presently to be in “fair health”, having responded favourably to anti-retroviral treatment. It was likely that she had been infected for seven or eight years.

8

The Adjudicator summarised the decision in D and that of the Court of Appeal in N, along with background material about conditions in Zimbabwe. He concluded, at paragraph 12:

“Because of lack of availability of drugs and general decline in the healthcare situation there is no practical availability to the ordinary person, that is other than the affluent or influential, of treatment in Zimbabwe for opportunist infections attacking the HIV positive and much less so for anti-retroviral treatment.”

9

The Adjudicator found, at paragraph 13:

“In the result I find that it is likely that the appellant on return to Zimbabwe would live in circumstances of privation. … I find that the appellant, even with help from her sisters, could not be expected to access private anti-retroviral treatment even if it were available. The effect of lack of access to anti-retroviral therapy and to appropriate treatment for opportunistic infections is likely to be a rapid decline in the appellant's health … I find that the rapid decline in the appellant's health will be attended by considerable mental and physical suffering… . I therefore find, in accordance with the estimate given by the appellant's own physician, Dr Evans, that the life expectancy of the appellant on a removal to Zimbabwe is likely to be no more than one or two years at most, as against a possible life expectancy of a possible ten years on her present regime.”

10

Notwithstanding those findings, the Adjudicator concluded, at paragraph 14:

“For all the force of the foregoing, I acknowledge that this seems to bring one only to the point described by Dyson LJ in N above as tragic but by no means exceptional or very exceptional and not raising humanitarian considerations so exceptional as to engage article 3. The appellant must, if she is to win protection, show that something more referred to by the Court of Appeal in N.”

11

The Adjudicator then set out further factors which, in his view, entitled him to reach the conclusion on article 3 already cited. The first factor was the evidence of the circumstances of the appellant's husband. The Adjudicator stated that he lives in poverty and in circumstances of continued threat of political intimidation. He is afraid of the continued deprivations of “these brutal guys” who had caused his brother's abhorrent death. The objective evidence, the Adjudicator said, including a report by Professor Barnett, showed attempts by the government of Zimbabwe “to use as a means of further suppression of political opposition the deprivation of food; the deprivation of medical care; and the tight regulation of non-governmental organisations”. The appellant would be obliged to return to “an area already oppressed by the intolerant and totalitarian methods of the Mugabe Zanu-PF government to a state of poverty and deprivation of food and healthcare in order to suppress any expression of dissent to his rule”.

12

The Adjudicator stated, at paragraph 16:

“To my mind, this is an extraordinary situation that provides the further relevant factors, referred to in N, that elevate the totality of circumstances in this case to that degree where, even applying with the greatest of circumspection the principle exemplified in D, it would be properly seen that the protection of article 3 is engaged. Among the added factors to be borne in mind in this particular case are that the appellant entered the country lawfully and has abided by immigration laws, as did her husband before her; that her husband has not sought to advance any false claim for protection but he, despite his condition, has returned to his home, while still enjoying a right to remain in the United Kingdom, upon the death of his father; that the appellant herself, although her sisters-in-law are able to show an acknowledged claim for asylum, has not sought falsely so to claim but has placed her situation frankly and honestly before the respondent; that the United Kingdom has already assumed a burden of medical care towards the appellant over the past two years and has in so doing so given her some hope. The particular reason for holding the strict requirements of N to be met, however, is that on top of all this remains the added factor of the malign contribution of the Zimbabwean government to the individual circumstances of hardship and want that the appellant will face.”

13

In the following paragraph, the Adjudicator expanded on the “malign contribution” factor. Having re-stated the circumstances, he added, eloquently, at paragraph 17:

“Not only that but, perhaps the most telling circumstance of all, that shows the protection of article 3 to be engaged, is that the appellant is reasonably likely to face not merely an absence of continued health but the very denial, as a result of perverted policies by the ruling party, of medication and even nutrition. It is in no respect whatever exaggerated or colourable to hold it reasonably likely that the appellant will rapidly decline to a condition stripped of her human dignity, reduced, by government oppression afflicting the family area where she will have to live, to subsistence gardening, meagrely vested in tattered clothes and barefoot, just as is her husband today, who barely two years ago was a student in London receiving medical treatment that would have prolonged his life had he not felt the duty to return to his home and his children upon his father's death.”

The Adjudicator then referred again to the contribution of “the abhorrent policies of the government” and its likely effect on the appellant's...

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