Court of Appeal rules on entitlement of foreign nationals to treatment for HIV
10 January 2010
JA (Ivory Coast) and ES (Tanzania) v Secretary of State for the Home Department  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
 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)
 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
 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.