Much has been said by this blog over the years about the cruel effects of the decision in N v UK. Rarely though has the human cost been so clearly displayed than in the ongoing case of Luqman Onikosi.  He came to the UK as a healthy young man to study economics and international relations. However, during this time he learnt that he had contracted hepatitis B, the disease that claimed his other two brothers. He is currently enrolled on a master’s course at the University of Sussex. After his original student visa expired, he applied to remain on medical grounds, which the Home Office refused. He cannot finish his master’s because it would be unlawful for his university to allow him to do this. His condition is such that he would need a liver transplant to ensure long-term survival independent of continuing treatment. Until then, only medical resources available in the UK will keep him alive.

The Home Office faces a stark choice: allow him to remain in the UK where he will finish his master’s and become a useful member of society; or deport him to Nigeria to his death, causing his mother the needless grief of watching her three sons die.

A first look at Article 3 ECHR

Historically appeals have been raised under Article 3 ECHR (prohibition of torture and inhuman or degrading treatment). This post by Colin Yeo is well worth a few minutes of your time, giving a full history of these types of case. In brief, in D v UK an appellant was successful because the prospect of their death in homelessness, unsanitary conditions without family there to assist would have constituted inhuman and degrading treatment. The test was laid down in D v UK that only in “very exceptional circumstances” would Article 3 be engaged in a medical case.  N v UK affirmed the House of Lords decision in N v SSHD. They regarded the test of exceptionality as an almost insurmountable barrier, finding that only such cases where the appellant would die in circumstances which constitute inhuman or degrading treatment would fit within the doctrine of D v UK. This would not be the case solely by the fact that their death by disease may in itself be extremely painful.

Very few major UK cases have since overcome the barrier, though the number to have done so is above zero (see the final paragraph). Any potential door to change the rule in N v UK has firmly been closed off by the Supreme Court, which refused permission in July last year to a case comprising seven conjoined appellants, foreseeing no reasonable prospect of departing from N v SSHD. GS (India), which appears thoroughly deserving at first sight – described in this article – was one of the seven whose appeals were refused by the Supreme Court.

What about Article 2 ECHR?

One might naturally think that an appeal ought to be brought under Article 2 which covers right to life. After all, what the judge is in effect doing is passing a death sentence to the claimant. The reason why Article 2 is irrelevant to such cases is that Article 2 only protects people from death inflicted at the hands of the state or non-state bodies. A state does not violate Article 2 insofar as it lacks the medical capability to treat certain diseases. Therefore, removing a person to such a country would not be a breach of their right to life.

Article 8 ECHR offers some hope

Article 8 states that interferences with private and family life can only be made when that is necessary in a democratic society for the following specific reasons: in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

JA (Ivory Coast) has offered a significant ray of hope for claimants with long-term conditions. The appellant in this case entered the UK lawfully with a visa – in contrast to the appellants in D v UK and N v SSHD. She originally was on a visitor visa, then was granted exceptional leave on medical grounds for treatment when two months after she entered, she found out that she had AIDS. The Home Office twice granted her discretionary leave to remain in order to access medical treatment. However, they refused to do so a third time, and proposed to send her back to her death. The Court decided in the view of the private and family life she had built in the UK and the impossibility of securing treatment in the Ivory Coast, the balance between the claimant’s private and family life and the state’s specific interests was capable of swaying in the claimant’s favour. Therefore the case was remitted to the Asylum and Immigration Tribunal (as it then was) for a fresh decision. Similarities between this case and that of Mr Onikosi seem to be present at first sight. There appears to be no clear reason why such an argument would be barred to him.

Even more obvious similarities present themselves in the case of Ahkalu, covered in this post in greater depth. The Appellant in that case came to the UK as a student, but while here was diagnosed with renal failure. After being put on dialysis she received a kidney transplant. Nonetheless, if deported to Nigeria, she would have died within two weeks as the treatment for her condition was unavailable there. She argued Article 3 and Article 8; her Article 3 claim was rejected because the Upper Tribunal felt itself bound by N v UK. However, after duly pointing out the impact on public resources that a positive decision would have, the tribunal went ahead and dismissed the Home Office’s appeal. The serious factors that allowed the judge to correctly determine that this was within the small band of cases that would succeed on Article 8 grounds included the powerful reminder that “there was nothing in any way hypothetical or speculative about the inevitable difficult, early and unpleasant death that would follow return to Nigeria”. Further reasons that counted in the Appellant’s favour were the active role in the community that she had played and the impossibility of replicating this private life in Nigeria, the lawful presence of the Appellant when she fell ill, and her receipt of NHS treatment which she was entitled to receive at that time.

A second look at Article 3 ECHR

Was N v SSHD really the correct call? The ECHR case, N v UK, was not decided unanimously by the ECHR. Three judges dissented in the case; Judge Spielmann subsequently became President of the court, and Judge Tulkens is currently its Vice-President. It would be fair to say that they know what they are talking about when it comes to human rights.

In that dissent they made four main points. First, they criticised the high threshold decided in D v UK as inconsistent with prior case law and unnecessary. They first stated that HLR v France correctly interpreted D v UK as affirming that “the suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3” if it risks being exacerbated by conditions in the country of origin. If so, there is no reason for erecting a barrier of extraordinariness above and beyond the usual Article 3 threshold which is summarised as follows by the judges:

Where a rigorous examination reveals substantial grounds for believing that expulsion will expose the person to a real risk of suffering inhuman or degrading treatment, removal would engage the removing State’s responsibility under Article 3 of the Convention.

The judges’ second and third points are based on countering the majority’s statement that running through the ECHR as a whole is a balance between the state and the individual. Rather, Article 3 specifically is an absolute right; if a state of affairs runs the risk of constituting inhuman or degrading treatment, that is and must be sufficient.

Finally they lambast the majority for suggesting that a finding in favour of the Appellant “would place too great a burden on the Contracting States”. They state that this reveals their true concern: inadmissible economic considerations regarding state resources.

If the applicant were allowed to remain in the United Kingdom to benefit from the care that her survival requires, then the resources of the State would be overstretched. Such a consideration runs counter to the absolute nature of Article 3 of the Convention and the very nature of the rights guaranteed by the Convention that would be completely negated if their enjoyment were to be restricted on the basis of policy considerations such as budgetary constraints.

They noted that, as Lord Brown stated in N v SSHD, an applicant does not need to be on their death-bed like D was, to have their removal classed as violating Article 3. Furthermore, they stated that a lack of medical and palliative care, put forward by the court in D v SSHD as additional grounds for a finding of a potential Article 3 violation, is capable of standing on its own as grounds for a similar finding in an appropriate case.

Unfortunately, this sophisticated and humane judgment does not represent the current state of affairs in either ECHR or UK law.

Some further thoughts on Luqman Onikosi’s case – a point about ‘health tourism’

Even if the higher UK courts are right to worry about the possibility of ‘health tourism’, that should only be a matter for an Article 8 balancing exercise rather than a matter for Article 3. Nonetheless it strikes one that even if economic considerations such as a fear of ‘health tourism’ were to guide a court’s approach to the matter, a way out could be found. Luqman Onikosi is in no way a health tourist: he came to the UK a full three years prior to his diagnosis. Therefore properly health tourism should not be on the minds of any decision maker on his case. Rather, even if human rights legislation must of necessity be harsh on the cases of those who come to the UK desperately seeking treatment for a fatal disease, there should be a recognised exception to such a rule in cases where the applicant could show that on the balance of probability they did not know at the time when they came to the UK that they had the disease. Otherwise the court would be guilty of importing principles irrelevant to the case before them into their jurisprudence.

Luqman Onikosi differs from many of the claimants in the cases above because, if granted a liver transplant, would be able to live his life independently. So while the judges preferred to see what they were doing in N v UK as more akin to turning a life-support machine off (paragraph 4), the life-support machine in the present case is not permanent. Similarities to the death penalty are more striking here.

As mentioned above, allowing him to live would not suddenly bring large numbers of ‘health tourists’ into the country, because he only learnt of his diagnosis after he arrived – so his case is distinguishable from these.

What can I do to help Luqman Onikosi?

At this stage, the Home Office has the opportunity to avoid a sorry series of court hearings by using its discretion to allow Luqman Onikosi to remain on medical grounds. It is incredibly important that as much noise can be made in the media and as much weight as possible can be thrown behind the campaign to stop his deportation. You can sign the petition to stop his deportation here.

Please do so, for the sake of all that is humane.