The Court of Appeal has held that a different test applies to children in human rights health cases. These difficult cases involve a person seeking to remain in the UK in order to receive life-saving medical treatment not available in his or her home country. The recent case of Rose Akhalu is one well known example and we discussed this type of challenge recently here on Free Movement.

In a new judgment, R (on the application of SQ (Pakistan) & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013] EWCA Civ 1251 the Court of Appeal holds that the Article 3 high test of exceptionality does apply in cases involving children, but that the threshold for meeting that test may nevertheless be lower:

I accept that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult. As Baroness Hale said in E v Chief Constable of the Royal Ulster Constabulary [2009] 1 AC 536 (at paragraph 9) :

“The special vulnerability of children is also relevant to the scope of the obligation of the State to protect them from such treatment.”

In this particular case the child, MQ, suffered from beta thalassaemia, a very serious medical condition requiring regular blood transfusions and chelation therapy. This treatment is available in Pakistan but only to a very limited and flawed extent. In the UK, MQ would have a normal life in terms of quality and duration. In Pakistan, it was likely she would die in her late teens or early twenties.

Nevertheless, on the facts of the case the Court held that the high Article 3 test was not met:

To put it bluntly, MQ would not be returning to an early and solitary death in Pakistan … There is no doubt that, on return to Pakistan, MQ would receive treatment inferior to that which he is presently receiving in this country. However, the circumstances fall significantly short of the high threshold.

The Court then turned to Article 8, as has been the trend in recent case law on health human rights cases, and concluded that this has not been properly considered by the judge below. Despite resistance from Ms Kerry Bretherton acting for the Secretary of State, the Court remitted the case for full consideration of Article 8, pointing to some of the potentially relevant considerations in doing so:

I do not intend to predict or seek to influence the outcome of the present case on remittal. On the one hand, MQ can pray in aid his lawful entry and his status as a child with the protection of the ZH approach. On the other hand, he arrived with his serious medical conditions at an advanced stage and, although not an unlawful entrant, it will be relevant to consider whether his arrival here was a manifestation of “health tourism”. If it was, that would fall to be weighed in the balance. After all, this country is under no international obligation always to act as “the hospital of the world”. The difficult question is whether it would be disproportionate to remove this child in the light of all the evidence in the case, including the medical evidence which, at present, is not as clearly presented as it could be.

On a purely procedural point, note that this case was an example of an appeal being refused by the First-tier Tribunal, permission being refused by the First-tier and then by the Upper Tribunal and then also being refused by the High Court on an application for judicial review. Sir Stanley Burton in the Court of Appeal at last granted permission and the case was retained in the Court of Appeal. See recent post on seeking permission to appeal in these Cart-type judicial reviews. Dogged determination was needed to achieve justice. This type of case will, however, be ineligible for legal aid funding if the residence test part of the Government’s consultation is implemented.

MQ was represented by Stephen Knafler QC and Mark Symes, both of Garden Court Chambers, instructed by Duncan Lewis.