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Medical treatment case: look away now


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This is stomach turning stuff, I’m afraid, and has left me quivering with anger. A new case on Article 3 has just been reported: GS (Article 3 – health exceptionality) India [2011] UKUT 35 (IAC)

The facts of the case and the medical evidence were undisputed. That evidence was as follows:

“He (the respondent) is dependant on this treatment to remain alive and well, and would expect he would die after a period of one to two weeks if the treatment was discontinued.  (The respondent) is a good candidate to receive renal transplant, and we have been discussing with him whether any of his family could offer a live kidney donor for him.  However, there are no firm plans to proceed with this at present.”

The Immigration Judge allowed the appeal on human rights grounds because there was no way the Appellant or his family could afford the medical treatment. Bravo for a courageous and humane decision.

Someone at UKBA saw fit to appeal, however. One really does have to wonder at what went through their mind, as the determination was unreported and set no precedent.

The Home Office appeal has now succeeded. Apparently it is not ‘inhuman and degrading treatment’ to send a man back to an avoidable but painful death over a one to two week period as his single kidney fails him.

It is a cliche, but I honestly do wonder how the person who made that decision to appeal will sleep at night knowing that he or she is personally responsible for an entirely avoidable early and painful death.

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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.


25 Responses

  1. Surely those presiding at the upper tribunal had a little something to do with it! The decision to appeal alone didn’t overturn the first tier finding!

    Terribly sensationalist comment.

    1. The blog is not arguing the UT decision is wrong in law. It is wrong on a moral sense. The individual who chose to appeal has chosen to cause this applicant’s death by appealing, when no-one would have battered an eyelid if this unreported decision had been left untouched.

    2. Not bound by the law? I’ll have to remember that next time you argue that one of their immigration decisions is unlawful!

    3. You sound like you ought to know better. UKBA is obliged never to be less generous than the law requires. They can be more generous, through the discretion imparted by s.4 of the 1971 Act or Crown prerogative, depending on which analysis you prefer. SM hits the nail on the head, though. My complaint is not a legal one, it is a moral one. Why on earth did someone see fit to appeal that decision? They might as well have killed the man themselves.

    4. I have every sympathy with GS but you absolutely have to look at the reasoning behind this judgment and other cases like ‘D’ and ‘N’. I don’t like the term ‘floodgates’ but we all know about the strain the NHS is under with medical advances, us all living longer and so on.

      Ultimately, it all boils down to whether you’re willing to pay more in tax to fund the NHS (and other public services). And let’s be honest, none of us wants to pay more in tax. To treat all individuals like GS would result in the meltdown of the NHS. Though from what I hear it already is in meltdown despite above real terms increases in investment.

      Also, it is not fair to attack the person that made the decision- it is simply his/ her job. And how do you know this caseworker hasn’t let numerous other cases quietly slip through?

  2. any half decent person-with even an ounce of compassion-would feel bad at such a disgraceful decision…at ANY tier level…

  3. Nothing new there I am afraid. Point is that some caseworkers have no idea why the HRA and ECHR are in place. The operative word is “Human” and for some people, there is simply no connection with that word.

  4. As if there have never been outraged caseworkers in UKBA saying they are morally disgusted by lawyers mounting (sometimes successful) appeals on behalf of people who have really unpleasant records – say Abdi. Outside the immigration context, say Hirst.

    There is a moral ground for feeling the procedural step should not have been taken. But in their view there are moral grounds for feeling you do the wrong thing by defending some of your clients.

    The point is we are supposed to be in a forum where visceral moral reactions are considered secondary to a – belief that it is – morally – correct to seek to bring about the law which the law deems correct.

    Not saying there is anything wrong with making a moral point on this blog as a private individual without your wig on, it is your thing. But at that point it is just like any tabloid rag moaning about a paedo rapist getting let off deportation.

    1. I agree with this to some extent but helping somebody remain in the UK does not have the same direct effect in ending human life as this has done. This is a little close to enabling state sanctioned murder for my liking, although I appreciate that sounds a little dramatic but I’m sure you get my point.

    2. There is no moral equivalence in the analogy you draw, nor is there legal equivalence. Morally, pursuing an appeal for a person with a ‘really unpleasant record’ is simply not the same as deliberately seeking to send a sick man to die. Legally, an appellant’s lawyer must act on instructions. A civil servant, particularly at that level, has total discretion. In this case that discretion was used to seek to overturn a judicial decision that would have allowed the man to live.

      And Abraham drew near, and said, Wilt thou also destroy the righteous with the wicked? Peradventure there be fifty righteous within the city: wilt thou also destroy and not spare the place for the fifty righteous that [are] therein? That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? (Genesis 18:23-25)

  5. Lawyers cannot so easily distance themselves from consequences such as this. By continually seeking to exploit and stretch any discretion that might be exercised, regardless of the merits of a case, I suspect the moral ground you purport to occupy is more upland bog than craggy pinnacle.

  6. As you well know, the vast majority of cases which we consider binding authority today began life as unreported cases. To suggest that such authority be applied differently (or overlooked in the name of discretion) where a case is unreported surely only moves us further away from a fair and consistent application of the Immigration Rules; something which critics of the Home Office routinely argue for (and with which I agree).

    1. It was a plain and ordinary immigration judge decision. There was no way it could have been reported or become any sort of precedent. There are probably countless other examples of similar cases where a judge has taken a humane and compassionate view on the facts and the Home Office has not appealed.

  7. Indefensible, hard hearted, wicked ……….

    Thank you FM for bringing this to the attention of the general public.
    Not a first by the UKBA, and sadly probably not the last.
    The “Exceptionality” bar is being set too high by the HO & judges.

    “a – belief that it is – morally – correct to seek to bring about the law which the law deems correct.”
    I personally disagree. Justice & morality should be higher than the law. Laws can be changed. Perhaps a good definition of “legalism”.

  8. I read this judgement yesterday and it made me feel physically ill.

    For me, it highlighted the idea I’ve long held that (at least some of) those within the HO believe their primary role is to keep the number of ‘customers’ in the country as small as possible – and the rules requiring them to grant anything at all are an adversary to be defeated wherever & whenever you can get away with it.

    I’d go further than you to say – whoever exercised the discretion to a) refuse in the first place and b) to appeal either has to be a psychopath (in the technical lacking empathy sense), or, more likely, has managed to become so jaded that it no longer seems like a real person at the other end of their actions.

    I accept that the judges’ role is to interpret the law, and as such, their hands were bound – but the civil servants in this disgusting little tale had the discretion to let this poor chap quietly slip into the background… alas.

    I’d assume he’ll do whatever he can to take this to the appeals court. Even if it is inevitable he will lose, at least he gets to actually draw breath while he waits for his day in court. Would such an appeal be bound to fail?

    Are the HO still in a position to exercise discretion, or is that all over now the appeal has been dismissed?

    One wonders, what would happen if he were to commit a crime that resulted in a custodial sentence? Would his ‘punishment’ be that he would be able to continue to receive medical care, albeit whilst imprisoned? That would be an interesting trial to say the least – I had to commit a crime otherwise you’d deny me medical care and I would die.

  9. Something else occurs to me.

    If the court was satisfied that there is a risk (or real risk?) he would commit suicide if deported, then my understanding is that he’d have a valid Article 3 claim.

    However, because he is all but certain to die, albeit not by his own hand, he has no Article 3 claim. Perverse.

  10. Another casual application of the banality of evil? Lin Homer set the bar in these case in 2008. (“Minister defends ‘barbaric’ decision to deport dying woman.”) Interestingly,the Ama Sumani cancer case also involved dialysis. Branded as “atrocious barbarism” by The Lancet, Homer described the case as heart-rending but not exceptional. “We deal with many hundreds of cases where the personal circumstances reach and touch the people involved. … It is one of the things that makes being a caseworker in the agency an incredibly difficult job.”

    Arguing floodgates Homer said, “If we vary from that point there are many, many tens of thousands who would be able to argue [that the UK must provide care].



    1. The Abdi I was thinking of was convicted of rape and indecency with a child. Of the various Abdi cases the one I was referring to is the one currently in Strasbourg (App 27770/08).

      UKBA detained him for yonks, often when there was absolutely zero chance of his being returned to Somalia because carriers would not even go there. Seems he is extremely uncooperative.

      It seems absolutely right to me for people to raise the point that the law does not permit UKBA to just lock people up indefinitely when they can’t remove them, because democracries don’t tolerate that sort of thing.

      But I imagine there are UKBA caseworkers who really think they are doing the country a favour by keeping him off the streets and trying their best to remove him (he is assessed as a high risk of sexual reoffending).

      And it is open to them to express disbelief and outrage at lawyers pursuing a case on his behalf. But we know those lawyers are doing something good because they are seeking to enforce rights which the law confers on him. Those rights are contained in instruments which are democratically sanctioned, like the rest of the law. We rely on the legitimacy of the law to say that the interest in seeing it applied properly outweighs our individual moral reaction.

      Likewise in this case the UKBA caseworker may genuinely think the interests of immigration control are also something democracy wants protecting, and feel it is right to pursue the appeal.

      My point is only a minor one, I just think the moral accusation needs to be against parliament, on the basis that the law or SSHD policy needs changing, rather than the caseworker for enforcing it as it stands.

  11. In reply to Scruffy Git

    “the moral accusation needs to be against parliament”

    Here’s what the then Government said about the Sumani case:,

    Hansard: 31 Mar 2008 : Column WA138Immigration: Medical Treatment

    The Earl of Sandwich asked Her Majesty’s Government:

    What lessons they have drawn from the case of Ama Sumani in Ghana; and whether they would allow an asylum-seeker to remain temporarily in this country for dialysis treatment, provided that sufficient funds were available for such treatment.[HL2766]

    The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): Common humanity means we all feel sympathy when dealing with individuals who face challenging medical and personal circumstances, but this in itself is not enough to entitle someone to a different process or consideration. Cases such as Ms Sumani’s will continue to be assessed and reviewed by independent judicial processes on an individual basis and in accordance with existing legislation and guidance.

    Individuals who make formal applications for asylum in the United Kingdom are eligible for free NHS treatment while their applications, including any appeals, are being considered. Unsuccessful applicants who have exhausted their appeal rights are expected to leave the country as soon as possible and may be charged for any new course of medical treatment. Nevertheless, immediately necessary treatment would never be withheld or delayed, regardless of chargeability or ability to pay. This would be a matter for medical decision on a case-by-case basis.”

    In other words, the Secretary of State (through her officers) exercises discretion. Discretion was exercised twice in this case – to refuse and to appeal the IJ’s decision – that’s the banality of evil -OnlyMe – “simply doing his/her job”

    31 Mar 2008 : Column WA138

    1. Let’s be clear on one thing. UKBA considers itself the guardian of the state’s resources and security and takes that perceived role seriously, to the point of fanaticism. So if you give it discretion, it will see public interest everywhere it sees a potentially successful appeal. Essentially SSHD discretion is mostly illusory as she will stick to the legal minimum. You refer to the SSHD’s discretion above but, as it says, this is ‘in accordance with existing legislation and guidance’. If I am disgusted by decisions taken on that basis then I want the legislation and guidance changing. And it is my view, as an individual, on the basis of my own moral reaction to the case.

    2. I agree to an extent that discretion is illusory at the initial decision level. What genuinely horrifies me about this case is that someone who did not have to lodge an appeal and could easily have just let it go chose not to do so.

      I’m not quite so into the Nuremburg argument as DRJ but I certainly wouldn’t be able to work in a role that required me to implement that kind of policy. I know UKBA caseworkers wonder how immigration lawyers can defend some of the unpleasant characters we encounter in deportation cases but it really isn’t of the same order as sending a man to die.

    3. I know UKBA caseworkers wonder how immigration lawyers can defend some of the unpleasant characters we encounter in deportation cases but it really isn’t of the same order as sending a man to die.

      It’s the exact opposite of that order. I’m familiar with the case Scruffy Git mentions (Abdi) and however unpalatable his crimes, I’m far happier to try to prevent an unpleasant man from facing death in his country of origin than I would be to try to enforce a perfectly decent man’s death in his country of origin.

  12. I think for the casual reader it’s the double standards of the situations that is disturbing.

    We remove/deport sick people (overstayers) to countries where health care is too expensive if it is available at all. This and the Sumani case both involved innocent people with sicknesses not of their own doing. The Sumani case is worse due to her husbands earlier death and leaving two orphans – not sure if S.55 would apply now to this scenario as they were not in UK at the time.

    By contrast, UK judges stop deportation of criminals back to their own coutries, because it violates their ECHR (usually private family life) or because their own country’s justice system could involve the death penalty.

    Lin Homers exceptionality bar (thanks DJR for info) is too high if it does not cover probably death due to lack of healthcare – there seriously can’t be that many as Lin quoted (tens of thousands).