ZT v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Sedley,Lord Justice Jonathan Parker |
| Judgment Date | 24 November 2005 |
| Neutral Citation | [2005] EWCA Civ 1421 |
| Docket Number | Case No: C4/2004/1920 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 2005 |
[2005] EWCA Civ 1421
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION TRIBUNAL
HR/41670/2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Sedley and
Lord Justice Jonathan Parker
Case No: C4/2004/1920
Mr Nicholas Blake QC and Mr Femi Omere (instructed by Ms S Hellier, Terrence Higgins Trust) for the Appellant
Ms Lisa Giovanetti (instructed by The Treasury Solicitor) for the Respondent
Crown copyright©
Facts and background
1. Ms ZT, a citizen of Zimbabwe, arrived in this country in July 2000, and was given leave to enter as a visitor for a period of 6 months. Fairly shortly thereafter she was diagnosed as being HIV-positive, and started a course of anti-retroviral treatment, which has succeeded in controlling the disease. In February 2001 she sought permission to remain on the basis that to return her to Zimbabwe, where treatment for her very serious illness would be difficult or impossible to obtain, would infringe her rights under the European Convention on Human Rights. She did not then, or subsequently, make any claim under the refugee Convention. The Secretary of State refused that application in January 2003, but in October 2003 an adjudicator allowed an appeal against that decision. The Secretary of State appealed against the adjudicator's decision, and that appeal was allowed by the Immigration Appeal Tribunal [IAT] in July 2004. This court gave Ms ZT permission to appeal in October 2004. The appeal has been heard only now, sixteen months after the IAT's decision, and nearly five years after Ms ZT's original application, because the appeal was stayed pending the decision of the House of Lords in N, speeches in which case were delivered in May 2005.
2. There is no doubt that Ms ZT was very ill indeed when admitted to hospital in 2001, suffering from a seriously damaged immune system, and from opportunistic infections including both pneumonia and tuberculosis. Without treatment, she was estimated to have some three to six months to live. That treatment has restored her condition and her immune system to stability. If it is withdrawn, as is the practical likelihood if she is returned to Zimbabwe, it is unlikely that she will survive for more than a year or two, during that time being burdened with serious illness. Her case thus raises yet again the acute dilemmas posed by persons with no right to remain in this country who however face illness and death if they are expelled.
The proceedings
3. Before the Adjudicator, Ms ZT's case was advanced under article 3, no case being made either in her original human rights claim or in her grounds of appeal to the Adjudicator under article 8. The Adjudicator dealt with the matter as expressed in her paragraphs 11–12:
“In summary, first, anyone wanting to access ARVs [anti-retroviral drugs] or treatment for Ols [opportunistic infections] in Zimbabwe has to find the money to pay for it. Medical aid schemes do not cover the cost. Secondly, tests for viral load and CD4 are not available in every public medical facility and are only available if paid for. The cost would be in the region of US$ 400 per annum. Thirdly treatment cost per month (to include medication, clinical supervision and tests) would be in the region of a minimum of US$ 1500 per month. Fourthly, even supposing the appellant could find a job on return (doubtful as the unemployment rate is high owing to the adverse economic and political climate in Zimbabwe) her rapid decline into ill health would render it difficult for her to work and she would be destitute. She would not be able to afford to pay for treatment herself (and her family clearly cannot) – let alone contribute to any household that might take her in. She would need care soon after return from the UK, as withdrawal of treatment would result in acute recurrence of the illness. Supplies of medicine for Ols are just not available even in the private sector. Even if medicines are available the supply is likely to be disrupted owing to sanctions, absence of aid and limited foreign exchange. ARVs are unlikely to be of priority. Priority is given to food imports and or goods and services demanded by politically sensitive groups. Fifthy, HIV/AIDS sufferers are subject to stigma, discrimination and isolation. This is a serious and continuing problem and may even affect the way people are treated in hospital. Sixthly, were the appellant to be removed to Zimbabwe she would have to cease ARV as she does not possess the resources to cover the cost of treatment. She would experience acute mental and physical suffering as a result of withdrawal of treatment and good specialist support networks. Professor Barnett is in no doubt that to return her to Zimbabwe would be to reduce her life expectancy and expose her to acute physical and mental suffering. [12.] Clearly the level of suffering would reach the high threshold necessary to engage Article 3 and I find that it would be breached if she were to be removed to Zimbabwe.”
4. The Secretary of State appealed to the IAT against that conclusion in terms that are controversial and to which I shall have to return. The IAT allowed the appeal. In relation to article 3 it directed itself according to the then ruling authority, the decisions of this court in N and in K v SSHD [2001] Imm AR 11, and set out a substantial part of the then current CIPU report on Zimbabwe, which had been before the Adjudicator but was not referred to in her determination. The IAT then concluded in its paragraphs 22–23:
“On the basis of these authorities, we are satisfied that the claimant's removal from United Kingdom would not be in breach of her rights under Article 3. [Counsel] sought to persuade us that the claimant's case was an exceptional one. Indeed, he argued at one point during his submissions that it was a unique one. With respect to him, both those submissions are plainly unsustainable. Sadly, as disclosed by paragraph 6.249 of the CIPU Report in the terms set out above, the claimant's situation is far from exceptional. It is certainly not unique. On the contrary, it is estimated that one-third of the adult population of Zimbabwe is now infected with HIV and/or AIDS. [23] Whilst the situation which would face the claimant on return to Zimbabwe is undoubtedly a grim and distressing one, it is not one which is exceptional, or which reaches the high threshold required to constitute a breach of Article 3. In arriving at her conclusion to the contrary, the adjudicator fell into error. Her conclusion to the contrary cannot be allowed to stand.”
5. The Secretary of State's grounds of appeal to the IAT also, and presumably for good measure, criticised the Adjudicator for not making any findings in relation to article 8, and indicated what those findings should have been. Whether that was a necessary, or even a relevant, plea must be in doubt, in view of the failure to rely on article 8 when launching the proceedings. But, the matter having been raised, the IAT was right to address it. In the appeal to this court, we were told that Ms ZT's case is now based principally on article 8, so for future reference we set out the IAT's findings, in paragraphs 24–29 of their determination:
“As confirmed by the recent judgment of the House of Lords in R v Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27, it has now been established that in principle, the removal of an individual in the claimant's position can amount to a breach of Article 8 by reason of the foreseeable consequences of removal on the health of the individual concerned. This is confirmed in the speech of Lord Bingham of Cornhill at paragraph 10 in the following terms:
“I would answer the question of principle in paragraph 1 above by holding that the rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied on by the applicant are sufficiently strong. In so answering I make no reference to “welfare”, a matter to which no argument was directed. It would seem plain that, as with medical treatment so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state”
25. However, as stated by Lord Bingham at paragraph 20 of the same speech:
“Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis”.
26. The same point is to be found elsewhere in the speeches of the other Lords of Appeal in Razgar. By way of example, Lord Carswell stated at paragraph 72:
“For the reasons given by your Lordships in the appeals of R (Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department [2004] UKHL 26, it must now be accepted that in principle article 8 could exceptionally be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights”.
27. In light of the guidance to be derived from...
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