The case of Rose Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC) offers a glimmer of hope to some migrants dependent on health care in the UK facing removal. These cases can involve people being sent to their country of origin to die an avoidably early and unpleasant death. It is an extraordinarily difficult and emotive subject and has been covered here on this blog before (GS (India) and medical treatment cases).

What was not covered on the blog – I cannot and do not cover everything – was the follow up to that last post, the actual outcome of the remitted GS India case, reported as GS and EO (Article 3 – health cases) India [2012] UKUT 00397 (IAC). The tribunal dismissed the appeal on Article 3 grounds, holding that the threshold for Article 3 was not met even in a case where a man would die within two weeks of removal from avoidable organ failure. The tribunal blamed the state of the existing higher case law by which it was bound, describing that case law as ‘not altogether satisfactory’.

As things stand, it is almost impossible to imagine a case that might actually succeed under Article 3. That may change following the hearing for permission to appeal to the Court of Appeal at the end of next week, but that remains to be seen.

However, in GS the tribunal also held that a different approach is required under Article 8, observing:

an Article 8 proportionality analysis might yield a different outcome in other cases, possibly where the claimant had a lawful permission to reside in the host state before the disease was diagnosed.

My new colleague at Garden Court, Ronan Toal (I’m the new one, here’s been here for yonks), developed that point in Akhalu and relied on Article 8 rather than Article 3, securing a fantastic outcome for the client (Garden Court coverage: Home Office fails in bid to send transplant patient to “certain death”).

Rose Akhalu’s case has had a lot of press coverage and you can read the full facts for yourself in the determination. In short, she came to the UK as a degree level student and it was only some time after arrival that she fell ill and was diagnosed with kidney failure. She received life sustaining dialysis for a time, managed to finish her degree and graduated and then later received a kidney transplant. The Home Office accepted that she would not be able to access treatment in Nigeria and so would die within weeks.

Building on the latest incarnation of GS India, the tribunal in Akhalu held as follows:

44. The correct approach is for the judge to have regard to every aspect of the claimant’s private life here, as well as the consequences for her health of removal, but to have in mind when striking the balance of proportionality that a comparison of levels of medical treatment available is something that will not in itself have any real impact on the outcome of the exercise. The judge must recognise, as did Judge Saffer, that it will be a rare case that succeeds where this is an important aspect of the claimant’s case.

45. Put another way, the consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality as was available in this country, are plainly relevant to the question of proportionality. But when weighed against the public interest in ensuring that the limited resources of this country’s health service are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant’s favour but speak cogently in support of the public interests in removal.

The tribunal went on to uphold the first tier judge’s decision to allow the appeal, dismissing the Home Office’s attempt to have that decision overturned.

The outcome can be contrasted with another new case, Okonkwo (legacy/Hakemi; health claim) [2013] UKUT 401 (IAC). The facts were similar to Akhalu, in that the main appellant came to the UK as a student, fell ill and was diagnosed with kidney failure after arrival and received life sustaining dialysis then an organ transplant. She would die swiftly and unpleasantly if removed. Here, though, the appellants through their representative relied on Article 3 and on a Legacy backlog argument.

The tribunal dismissed the appeal, but in doing so explicitly invited further consideration of the case:

We would be rather concerned if this conclusion was the last judicial examination of the issue and if it had been we would have positively invited the appellants to submit full evidence of their economic resources; their most likely residence in Nigeria and the costs of medication and care there and make a fresh claim in the light of Akhalu and the arguments reflected therein.

The tribunal goes on to note that for technical reasons, no removal decision had been made and once one was forthcoming that would give rise to a right of appeal to the tribunal, at which point Article 8 human rights arguments could be properly and judicially considered. It seemed to be taken as a given that the Secretary of State would not grant leave of her own motion.

Lawyers take note: health cases are almost bound to fail on Article 3 but in certain circumstances can still succeed on Article 8 grounds.