A child referred to in court only as “Maya” is six years old. She has Spina Bifida and is very severely disabled. She also has severe learning difficulties and extremely complex needs. For the last five years she has received highly specialised medical treatment and has attended a special school in Enfield which provides her with a very high level of support. The situation of Maya and her family is a hard one.

It is a situation made all the harder by the twin facts that Maya is Algerian and that the Home Office want to send Maya back there.

As is recorded in the judgment of the Court of Appeal in AE (Algeria) v Secretary of State for the Home Department [2014] EWCA Civ 653], when Maya was born the available healthcare in Algeria was incapable of meeting her needs. She and her mother were granted a UK visa in 2009 specifically in order to receive medical care at Great Ormond Street Hospital. Even now, although Maya would not die if removed to Algeria, it is accepted that the differentials in relation to medical, social and educational support as between this country and Algeria are very substantial indeed.

Article 3

Article 3 of the European Convention on Human Rights provides:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

As discussed previously, this has been held previously to prohibit removal of very ill people who are close to death: N v UK. However, the test is now considered to be an extremely high one, albeit one that the UK courts plan to revisit in the near future. It is now accepted, though, that there is a different threshold of suffering to be applied in cases of children rather than adults.

Giving the leading judgment, Lord Justice Maurice Kay, who recently granted permission in some other health cases on this point, took the view that the facts of this case did not come close to showing a breach of Article 3. He therefore swiftly moves to consider Article 8 of the Convention instead.

Article 8

Recent cases have indicated that there is much more scope for succeeding under Article 8 than under Article 3, although only in certain quite narrow factual scenarios. Given the legal background, the possibility that some cases will succeed and the obvious importance of the issue for Maya and her family, this was a case that needed to be very carefully determined.

Unfortunately, it was not. The determination of the Upper Tribunal is sloppy and contradictory. The judge, who is not identified, accepted that it was in Maya’s best interests “medically” to remain in the UK but went on to use a double negative to find that it had “not been shown not to be in the children’s best interest for them to be returned to Algeria”. The judge then seems to conflate Articles 3 and 8 by referring to “established thresholds”, suggests that best interests cannot really mean obtaining the best possible medical care because that would render the established legal test “inadmissible” before going on to leave a sentence incomplete.

The Article 8 case was remitted back to the Upper Tribunal for it to be decided again.

The judgment reiterates that some medical treatment expulsion cases can succeed under Article 8.