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Human rights, expulsion and medical treatment cases: a review
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Human rights medical treatment expulsion cases are perhaps some of the most stark, most difficult and most challenging cases faced by a human rights lawyer. They concern life itself and will often involve a miserable, painful death if unsuccessful. The claimant and his or her family will be understandably desperate to succeed.
Politicians, civil servants and even judges characterise these cases as ‘health tourism’ and reply that individual cases are very sad but the NHS cannot provide universal health care for the entire world.
Human rights lawyers instructed by those reliant on medical treatment in the UK who resist removal face the difficult task of attempting to achieve a good outcome for the client in a very hostile environment amid some very unhelpful case law.
However, recent developments offer hope to some individuals.
The history of the use of human rights law to resist removal from the United Kingdom begins with the Soering v United Kingdom (1989) 11 EHRR 439 case.
Article 3 – Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
A murderer was able to resist extradition to the United States to face the death row phenomenon on the grounds that there was a real risk he would be exposed to such treatment and that such treatment would be inhuman or degrading treatment, a breach of Article 3 of the European Convention on Human Rights.
In D v United Kingdom (1997) 24 EHRR 423 the European Court of Human Rights took a further logical step forward, holding that it would be a breach of Article 3 for D, who suffered from advanced stage HIV/AIDS, to be removed to his original home country of St Kitts, where he faced a swift death with no medical or other support whatsoever.
Since then, however, UK’s domestic courts have been seeking to distinguish the situation of D as being all but unique. This trend in case law culminated in the case of N, which reached the UK’s House of Lords (N v Secretary of State for the Home Department  UKHL 31) before also travelling to Strasbourg (N v United Kingdom (2008) 47 EHRR 39).
N also suffered from HIV/AIDs but first the House of Lords then Strasbourg held that she could nevertheless be removed to Uganda, where her life expectancy would be much reduced, because some treatment and support was available to her, unlike D.
Since N v UK very few if any cases have succeeded relying on Article 3
Article 3: deadend
For a long time human rights lawyers focussed their arguments on Article 3 because of the attractively absolute nature of its protection. The almost impossibly high threshold in N v UK meant that it was time to explore other avenues.
In N v UK itself, the majority in Strasbourg declined to hold that the case raised any distinct issues under Article 8. A minority disagreed.
However, in an earlier case, Bensaid v UK (2001) 33 EHRR 10, the claimant had resisted removal on the grounds, broadly, that his mental health and the lack of care available in his home area of his home country combined to mean that removal would be breach of his human rights. Strasbourg held that the facts of the case did not engage Article 3. On Article 8, the court held a sufficiently serious adverse impact on ‘physical and moral integrity’ would potentially engage Article 8 but that on the facts of the case the impact was not adequately established and the removal was not disproportionate.
Article 8 – Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.
And here lies the key difficulty with reliance on Article 8: unlike Article 3, it is not absolute. Even if engaged, one must show that removal would be disproportionate. Assessing proportionality must include weighing considerations such as the prior conduct of the claimant, the cost to public purse, the public policy pronouncements of politicians and so on.
Politicians and the press think that human rights are some sort of trump card allowing all and sundry (and their cat) to remain in the UK. The facts of GS (India)  UKUT 00397 (IAC) tell us otherwise:
Both GS and EO (whom we shall refer to as the “claimants”) suffer from chronic advanced kidney disease which is irreversible and requires dialysis three times a week. Without dialysis, the medical evidence is that GS would die within one to two weeks and EO would die within two to three weeks. Although kidney dialysis is available in their respective countries, namely India and Ghana, that treatment would not be available to them because of the cost and practical difficulty of accessing it.
Both lost their cases and their appeals were dismissed. The consequences to the appellants are obvious.
The tribunal did, however, signal that a different legal approach might yield different results in other cases. The tribunal noted that no attempt to argue Article 8 had been made in the case and went on:
…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.
Two further tribunal determinations issued within a short space of time with different outcomes illustrate the potential of reliance on Article 8.
In Okonkwo (legacy/Hakemi; health claim)  UKUT 401 (IAC) the main appellant had come 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 being taken as a given that the Secretary of State would not grant leave of her own motion).
In the well publicised case of Rose Akhalu (health claim: ECHR Article 8)  UKUT 400 (IAC) the tribunal finally delivered on the promise of Article 8 in a reported determination.
The facts were similar to Okonkwo, in that Ms Akhalu had come to the UK legitimately as a student, 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.
The determination was allowed at first instance but the Home Office appealed, arguing that an earlier Court of Appeal case, MM (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 279, dictated that an Article 8 case could only be allowed where the private or family life life established in the UK had a bearing on the person’s prognosis.
The tribunal held that some cases might potentially succeed under Article 8 which failed under Article 3, that such cases were exceptional but that the first instance judge had correctly directed himself in law:
43. MM (Zimbabwe) does not establish that a claimant is disqualified from accessing the protection of article 8 where an aspect of her claim is a difficulty or inability to access health care in her country of nationality unless, possibly, her private or family life has a bearing upon her prognosis. The correct approach is not to leave out of account what is, by any view, a material consideration of central importance to the individual concerned but to recognise that the countervailing public interest in removal will outweigh the consequences for the health of the claimant because of a disparity of health care facilities in all but a very few rare cases.
44. When a judge arrives at the question of proportionality he is required to have regard to all of the circumstances relied upon by both parties. If he left out of account aspects of the claimant’s private life established here because it could not be shown that they had a direct bearing on her prognosis, the balancing exercise would be fundamentally flawed and legally deficient.
45. 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.
The first instance appeal was upheld, happily for Ms Akhalu.
Different test for children
In a new judgment, R (on the application of SQ (Pakistan) & Anor) v The Upper Tribunal Immigration and Asylum Chamber & Anor  EWCA Civ 1251 the Court of Appeal holds that the Article 3 high test of exceptionality does apply in cases involving children, but that the threshold for meeting that test may nevertheless be lower:
I accept that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult. As Baroness Hale said in E v Chief Constable of the Royal Ulster Constabulary  1 AC 536 (at paragraph 9) :
“The special vulnerability of children is also relevant to the scope of the obligation of the State to protect them from such treatment.”
In this particular case the child, MQ, suffered from beta thalassaemia, a very serious medical condition requiring regular blood transfusions and chelation therapy. This treatment is available in Pakistan but only to a very limited and flawed extent. In the UK, MQ would have a normal life in terms of quality and duration. In Pakistan, it was likely she would die in her late teens or early twenties.
Nevertheless, on the facts of the case the Court held that the high Article 3 test was not met:
To put it bluntly, MQ would not be returning to an early and solitary death in Pakistan … There is no doubt that, on return to Pakistan, MQ would receive treatment inferior to that which he is presently receiving in this country. However, the circumstances fall significantly short of the high threshold.
The Court then turned to Article 8 and concluded that this has not been properly considered by the judge below. Despite resistance from Ms Kerry Bretherton acting for the Secretary of State, the Court remitted the case for full consideration of Article 8, pointing to some of the potentially relevant considerations in doing so:
I do not intend to predict or seek to influence the outcome of the present case on remittal. On the one hand, MQ can pray in aid his lawful entry and his status as a child with the protection of the ZH approach. On the other hand, he arrived with his serious medical conditions at an advanced stage and, although not an unlawful entrant, it will be relevant to consider whether his arrival here was a manifestation of “health tourism”. If it was, that would fall to be weighed in the balance. After all, this country is under no international obligation always to act as “the hospital of the world”. The difficult question is whether it would be disproportionate to remove this child in the light of all the evidence in the case, including the medical evidence which, at present, is not as clearly presented as it could be.
The case is certainly not yet a victory for MQ, but the court’s comment on the exceptionality threshold being different for children compared to adults is a welcome one.
As a footnote, this case was an example of an appeal being refused by the First-tier Tribunal, permission to appeal being refused by the First-tier and then by the Upper Tribunal and then also being refused by the High Court on an application for judicial review. Sir Stanley Burton in the Court of Appeal at last granted permission and the case was retained in the Court of Appeal. Dogged determination was needed to achieve justice.
This type of case will, however, be ineligible for legal aid funding if the residence test part of the Government’s consultation is implemented.
Previous relevant posts on this blog include:
This post is based on a talk I gave at the JUSTICE annual human rights conference this year.