Court of Appeal rules on entitlement of foreign nationals to treatment for HIV

10 January 2010 by

JA (Ivory Coast) and ES (Tanzania) v Secretary of State for  the Home Department [2009] EWCA Civ 1353 (CA (Civ Div) (Sedley LJ, Longmore LJ, Aikens LJ)
In these two cases, heard together, the Court of Appeal provided clarification of the circumstances in which Art. 8 of the European Convention of Human Rights entitles foreign nationals’ to remain in the UK in order to receive medical treatment.
The two appellants in this case were both from Africa.  JA, an Ivory Coast national, had entered the UK as a visitor in March 2000, was diagnosed with HIV in May that year and applied for exceptional leave to remain for treatment. This was granted in November 2002 for a year, and then renewed as discretionary leave in November 2003 for a further 3 years. However, the application which she made shortly before the expiry of that period was refused because of a change in Home Office policy following the case of or the N v Secretary of State for the Home Department (2005) UKHL 31. The second appellant, ES, was a Tanzanian national who had entered the UK as a student in September 1998 with one year’s leave. She became an overstayer, but in November 2002 was granted exceptional leave to remain (“ELR”) for a year because she was by then being treated for AIDS. Before the expiry of this period she applied for and was granted discretionary leave to remain for a further 3 years. However when she reapplied for an extension at the end of this period (December 2006) this was refused.
Underpinning the decision in this case are two key cases, N v Home Secretary [2005] UKHL 31 and D v United Kingdom (1997) 24 EHRR 423.
In N, the House of Lords found that Art. 3 only provided protection to foreign nationals facing removal in extreme and exceptional cases.  This was later affirmed by the Grand Chamber in Strasbourg (2008) 47 EHRR 885, which noted at paragraph 34 that D was unique in finding a violation of Art. 3 by removal of a foreign national suffering from ill-health. This case precipitated an important change of Home Office policy in 2006, on which the decision to refuse JA and ES’s applications was based. However, in appealing the decision, both appellants submitted that their case could be distinguished from N because when each appellant was granted ELR, it was explicitly on the ground that the UK had assumed responsibility for their treatment.
In considering where the state makes an ‘assumption of responsibility’ to provide applicants with access healthcare which they would not otherwise have, guidance was provided by D. The case concerned an illegal entrant who was diagnosed HIV while serving a prison sentence for drugs offences. By the time he was due for release and deportation he was dependent for survival on anti-retroviral therapy provided by the NHS. The Court held that to send him to the near-certainty of a degrading and painful death would violate Art. 3 of the ECHR.  This was based on the fact that when D was diagnosed, the state had legal duties of care towards him (including a duty to provide medical treatment).  However, the court also highlighted that this duty did not extend to the generality of the settled population nor the generality of unlawful entrants. As such, D was highly case-specific and without both elements – a clear “assumption of responsibility” by the state and the critical state of D’s health – Art. 3 would not have saved him from deportation.
However, the central issue for the House of Lords in this case fell not under Art. 3 but Art. 8 of the ECHR (respect for family and private life).  Both sides acknowledged that the removal of the appellants, given the length of time and the reason why they have been lawfully here, was a significant interference with their private lives under Art. 8(1).  The issue was, therefore, whether such an interference was proportionate under Art. 8(2).  In particular the question was whether, when gauging the proportionality of removal, the UK was wrong to exclude any assumption of responsibility for JA and TS’s treatment.
In reaching their decision, the courts distinguished the current case from both D and N on the grounds that both D and N were foreign nationals who had never been lawfully admitted to the United Kingdom.  At paragraph 22, Lord Justice Sedley then went on (emphasis added):
In that critical sense we consider that the present appellants are in a significantly different legal position from both D and N. This … gives them a toehold on Art. 8 … The question is whether in either case the true toehold is sufficient to enable them to resist removal. This must depend in large part on the remainder of the material facts. It also depends, however, on law and legal policy …
In the light of this, at paragraph 23, he provides:
“The real question is how far in each case the proportionality of removal is affected by the history of the compassionate grant and renewal of leave to remain for treatment, having regard to the impact both of that history and of the proposed discontinuance of treatment on the individual’s private life.”
In considering whether this would have made any difference to the outcome, the court came to two difference decisions on the facts of the cases.
In ES, the appellant had the skills and experience to obtain work which could pay, or help to pay, for treatment in Tanzania and familial support to turn to as well.  As such, the history of lawful entry and compassionate grants of leave to remain could not stave off removal. ES’s case was, therefore, on a par with DM (Zambia) [2009] EWCA Civ 474, and was dismissed.
For JA, however, the court reached a different decision.  Her position as a continuously lawful entrant placed her in a different legal class from N, such as she was not called upon to demonstrate exceptional circumstances as compelling as those in D. There was also no finding by the AIT that she has much if any hope of securing treatment if returned to Ivory Coast, or as to the severity and consequences of removal. For these reasons, the court found that the potential discontinuance of years of lifesaving NHS treatment (albeit made available out of compassion and not out of obligation) was capable of tipping the balance of proportionality in her favour.  Accordingly, the courts allowed JA’s appeal to the extent of remitting it to the AIT for redetermination of all issues arising under Art. 8(2) in accordance with the House of Lords judgment and the guidance given by Lord Bingham in Razgar [2004] UKHL 27, which permits the AIT, on the application of either party, to make an up-to-date appraisal of the availability of ARV and other treatment in Ivory Coast and of JA’s potential access to it.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: