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HIV/AIDS cases


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Permission to appeal to the Court of Appeal has been granted in at least three cases to look at the question of in what circumstances a person with HIV/AIDS might succeed in establishing a right to remain in the UK on the basis that their removal to another country would breach their Article 3 or 8 human rights. Since the case of N v The United Kingdom there has been little or no reported case law on this very difficult issue, although a number of different arguments and approaches have been tested.

In the grant of permission I came across, KH (Afghanistan) v SSHD [2009] EWCA Civ 836, even Lord Justice Sedley doesn’t hold out much hope for success, but he finds that it is at least arguable and mentions at the end of the short judgment that permission was granted in two other cases that day.

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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.


9 Responses

  1. Whether the terminal illness is curable (Cancer) or the treatment just delays (AIDS), wow this is a difficult topic for all concerned.

    However, one thing is for sure, the HO position currently held is so hard hearted, that exposure like this should only help those who are so unfortunate.

    See the BBC coverage of the cancer victim “Ama Sumani” for an example of how “wicked” our immigration can be.

    1. As an aside, did we all miss the withdrawal of Government plans to disband the Common Travel Area ( between UK, Eire & Channel Islands).

      It certainly wasn’t announced with as much profile as say the Probationary Citizenship points scheme.

      It was however widely predicted on this Blogging site.

  2. Not just the HO position, but the one approved by the Court of Appeal, then the House of Lords, and most recently the European Court.

    Of course, as that bastion of bias Sedley LJ has said before and repeats again in the case cited, their decisions were based on political expediency rather than the law.

    I can’t help but wonder what the Lords think of him.

    1. Accusing of bias a Lord Justice of the Court of Appeal with the intellect and reputation of Sedley is a serious matter. It’s not the first time I’ve heard inappropriate and strong criticism of Sedley from a Presenting Officer. One SHOPO, who should have known better, even called him ‘dangerous’. Just because you disagree with him certainly doesn’t make him biased or dangerous. Since the House of Lords have followed a very similar line to Sedley on a number of important issues, I imagine they think very highly of his legal reasoning.

      The difference between the courts and ministers is that the courts merely tell us what the threshold is for inhuman or degrading treatment. Ministers could, of course, be more generous than the absolute minimum requirement in a civilised society. In this case, though, it’s true that the reasoning of the Court of Appeal and Strasbourg looked rather political in nature. I thought the Lords did a rather better job of making it look like a legal rather than a policy based judgment, though.

    2. I am not so blinkered to think that the SSHD’s position is always right and the appellant’s always wrong. Can you honestly say that Sedley isn’t so blinkered in the opposite direction? I don’t doubt his intellect, but since when did intelligence stop someone being biased?

      We all know that there is considerable bias amongst IJs, we all know which will never dismiss or never allow. But at the Court of Appeal, is it not reasonable to expect an open mind from the judiciary.

      It seems that most LJs have one, but has Sedley ever been known to take a position that was not against the government? I don’t suggest he hasn’t been correct to do so on many occassions, but do you really believe that the government is always wrong?

      Take the recent case on WHMs – KS (India) v ECO [2009] EWCA Civ 762 – he just had to find against the established position on third party support, established in well-reasoned determinations from the tribunal. Thankfully, the other two disagreed with him.

      You say that just because I disagree with him, it doesn’t make him wrong. Well, I would suggest that Sedley LJ and others might apply the same reasoning to the principles in N.

    3. Talking in terms of bias…..I think that’s a rather pretentious thing to say considering the number of times the tribunaral has managed to get its self into legal tripe.

  3. Unfortunately the decisions around this issue are purely political and a result of our socialized medical system.

    It is clear that the judges who have made these decisions understand that if they were to find that people were entitled to stay in the UK for medical treatment for the reasons put forward in N and other cases then the UK and other similar ECHR signatories would be overwhelmed by people who scrape the money together to get here then demand fee treatment.

    It is a distasteful position but what could happen if the courts were to find otherwise would very possibly be much more unpleasant.

    That said the argument being put forward in KH is an interesting one, and sufficiently different Sedley clearly appreciates this and thinks it is worth the effort.

  4. When you mention different approaches and arguments that have been tested, I think especially of 2 cases which have been used to circumvent the harsher aspects of N.

    There is CA v SSHD [2004] EWCA Civ 1165 where the court said that whilst the appellant might not necessarily lack the requisite treatment on return to Ghana, her baby however, unborn at time of hearing, would have little chance of staying well as s/he could not be breastfed, and dried formula milk would be mixed with unsafe water. There was a reasonable likelihood that the baby would die; therefore, it was a breach of Article 3 to return the mother.

    There is also RS (Zimbabwe) [2008] EWCA 839 in which the Court of Appeal gave permission and agreed that the Article 3 threshold might be reached where there are humanitarian considerations.

    I suspect these will increasingly become important angles in arguing HIV cases.