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Good news in an HIV/AIDS case


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This is another from last week’s luggage carousel – I’m still catching up, I’m afraid.

In the case of JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009] EWCA Civ 1353 the Court of Appeal has allowed the appeal of a woman with HIV/AIDS (albeit only to the extent of remitting it to the tribunal) on the basis that she was a lawful entrant, had previously been granted leave on the basis of her medical condition and had been lawfully resident in the UK for quite some time on that basis. These features were found to distinguish the case from Article 3 cases like D v UK and N v UK and placed the woman in a different legal context.

Her co-appellant was unsuccessful on the basis that the immigration judge had found that she could find work in Tanzania and support her treatment costs. Giving the leading judgment, Sedley LJ went on:

JA’s is a markedly different case. Her position as a continuously lawful entrant places her in a different legal class from N, so that she is not called upon to demonstrate exceptional circumstances as compelling as those in D v United Kingdom. There is no finding by the AIT that she has much if any hope of securing treatment if returned to Ivory Coast, or therefore as to the severity and consequences of removal (see Razgar [2004] UKHL 27). Depending on these, the potential discontinuance of years of life-saving NHS treatment, albeit made available out of compassion and not out of obligation, is in our judgment capable of tipping the balance of proportionality in her favour.

It was possible for JA to succeed on the basis of Article 8, essentially. This comes hot on the heels of KH (Afghanistan), in which the Court reaffirmed the high threshold to be met in Article 3 cases.

JA is the first bit of good news for HIV/AIDS sufferers facing removal for a very long time. It is a humane decision and may prove to be of assistance to the unknown number of claimants who were previously granted leave on the basis that the UK had assumed responsibility for their treatment, only to be told a few years later that the UK had later unassumed responsibility.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


4 Responses

  1. It will be interesting to see how this one plays out, as the appellants were both lawfully present on the basis of them having been granted leave under the D policy (prior to N). Given that N was handed down by the House of Lords almost 5 years ago, there are likely to be very few claimants left (apart from the appeals that were stayed whilst this case was dealt with, and maybe a handful more that were subject to long delays) applying to extend DL that was granted under the D policy.

    Obviously claimants are not limited to people who were previously granted leave under the D policy, but I interpreted the decision as the de facto commitment to provide ARV treatment implicit from previous grants of leave would be a weighty factor in the article 8 assessment.

    1. I think you are quite right on both fronts: there aren’t that many affected people and it is a weight issue in the Article 8 proportionality argument. It does not necessarily mean people will win, although the case can be interpreted as a strong steer from the Court of Appeal. As ever, if an immigration judge wants to dismiss a case, a way will be found.

  2. This can be looked at a bit differently.

    The scourge of HIV and AIDS is ravaging parts of Africa.

    Say there are a thousand people in this Appellant’s position, and their treatment costs the state £15,000 a year.

    ARVs in the standard form given in, say, South Africa, cost $88 a year.

    So perhaps it might be more humane to spend the same amount of money to benefit far more people?

    I don’t know the answer, this is a question (-: