Updates, commentary, training and advice on immigration and asylum law

The case of N v The United Kingdom


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I found it necessary to polish off a bottle of wine before writing this post (Charon QC would be proud, although Rioja it was not), for reasons I think are probably clear from reading it. It is not a pleasant subject.

The European Court of Human Rights, often referred to amongst lawyers simply as ‘Strasbourg’, finally handed down judgment in the case of N v The United Kingdom. It is very bad news indeed, first and foremost for the woman known as N who has inadvertently lent her initial to this tragic line of case law. It is also the worst kind of news, the sort that usually involves a doctor with a practised long face, for others like who her who are infected with HIV/AIDS, are receiving top class treatment in the UK and will die slowly and often painfully if returned to their home countries from the United Kingdom.

Strasbourg has upheld the judgment of the House of Lords in dismissing N’s appeal. It is strange to say this, and perhaps it reflects my transformation to lawyer from human, but I always in a way admired the judgments of their Lordships in the earlier decision. They faced up morally to what they were doing to the woman — passing a death sentence, in effect — and found a legal-ish way forward. The rather nasty Court of Appeal judgment lacked the dignity of that of the House of Lords, and sadly so does the judgment of Strasbourg. There is an explicit reference at paragraph 44 to placing a resources burden on European Convention on Human Rights contracting states, which hardly sounds like a legal argument to me, and also in the same paragraph to the balance that the Convention as a whole strikes between the general interests of the community and the interests of individual. I’m sorry, but not under Article 3, under which this case was decided. Article 3 — the prohibition on torture and inhuamn or degrading treatment — is absolute, as was recently reaffirmed by Strasbourg in a case called Saadi v Italy in which the UK shamefully intervened to argue that it was not.

I recommend the minority judgment at the end of the transcript in N v UK, which may eventually prove to be one of those minority judgments that stands the test of time.

There are two possible rays of hope. One is that Strasbourg seems to have based its findings on the premise that the necessary treatment is widely available in Uganda (paragraph 48). This is absolutely not the case in many countries.

The other is that the Court refuses to examine the case under Article 8. The terms in which this is done will no doubt be interpreted by the Home Office and many in the Asylum and Immigration Tribunal as meaning that there is no separate Article 8 issue in any health care cases. However, it is possible to argue that the refusal is based on the circumstances of the case, and that this battle remains to be fought another day. It is certainly inconsistent with earlier cases, particularly Bensaid v UK.

My final thought is for N herself and for her legal team. I have lost HIV/AIDS cases before and will again in the future. It is tragic each and every time it happens. Doctors seem to have training and practise in this sort of thing, whereas I do not.

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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.


7 Responses

  1. words fails to describe my sadness at reading the outcome of this case. If anything, I would have thought that the European court with all it’s alleged human right protection would have availed this woman.

    A very big shame indeed.

  2. Its very sad that life can be meaningless to a group of individuals, who are sentencing people to death. Its clear that this turnout of events is specifically catasrophic to Africans and no one else. Racism can sometimes be interpretated differently.

  3. I myself am going through a legal battle with HO, I applied on medical grounds bse of my HIV status. My application was refused and was served with a one stop warning. My british partner very supportive bless her filed on additional grounds because she is also HIV POSITIVE so we are supporting each other.

    Am only asking discretion to remain but still waiting from the HO, i have to juggle a life without a job,taking lots of medication, keeping my relationship up to date its very frustrating indeed!

    1. Good luck. You need a good lawyer for this type of case. I know there have been challenges started based on the Home Office granting leave and then changing its mind further down the line but I don’t know the outcome of such cases. It is the sort of topic that makes an advanced-level training course delivered by top lawyers for other top lawyers.