D v UK exception remains exceptional in medical treatment cases under Article 3

5 February 2015 by

Nurse-behind-frosted-glas-008GS (India) and Ors v SSHD  [2015] EWCA Civ 40 – read judgment 

The Court of Appeal has confirmed that foreign nationals may be removed from the UK even where their lives will be drastically shortened due to a lack of healthcare in their home states. Removal in those circumstances does not breach Articles 3 or 8 ECHR except in the most exceptional cases.

The appellants were foreign nationals suffering from very serious medical conditions (five from end-stage kidney disease (ESKD) and one from an advanced stage of HIV infection). They were all receiving effective treatment here in the UK. All were at a high risk of very early death if returned to their home states, where the treatment they needed was unaffordable or simply unavailable. The Secretary of State nevertheless decided to remove them, and the Upper Tribunal dismissed their appeals. They appealed to the Court of Appeal on the grounds that removal would breach their rights under Articles 3 and 8 of the ECHR.

Laws LJ began by identifying the “paradigm case” of a breach of each Article, and then considered whether the present situations were sufficiently close to the paradigm to justify extending those Articles to cover them. None of them were.

Article 3

The paradigm case of a breach of Article 3 is “an intentional act which constitutes torture or inhuman or degrading treatment or punishment”. A risk of death caused by a naturally occurring illness, combined with a lack of sufficient resources to deal with it in the receiving country, does not fall within that paradigm.

The European Court of Human Rights (ECtHR) has allowed a limited extension to Article 3 in exceptional circumstances. In D v UK (1997) 24 EHRR 423, the applicant suffered from AIDS which was already terminal, and was receiving end-of-life care in the UK. The Court held, in view of the exceptionally poor conditions which he would face if returned to his home state of St Kitts, and bearing in mind the critical stage of his illness, that to remove him would amount to a violation of Article 3.

However the House of Lords in N v SSHD [2005] UKHL 31 – affirmed by the ECtHR in N v UK (2008) 47 EHRR 39 – made clear that this exception is subject to a very high threshold. D’s condition was already terminal; as Lord Nicholls put it, “there was no question of imposing any such obligation [to provide medical care] on the United Kingdom. D was dying, and beyond the reach of medical treatment then available” (paragraph 15). The key feature in D was not that removal would cause or accelerate his death – the right to life being the province of Article 2, not Article 3 – but that it would lead to him dying in inhuman and degrading conditions.

None of the appellants fell within this category. Although they were likely to die quickly once treatment stopped – the five appellants suffering from ESKD would have only about 2-3 weeks to live without dialysis – they were not dying yet. Article 3, even in light of the D exception, did not impose an obligation on the UK to continue to provide medical treatment indefinitely.

That conclusion was not affected by any of the more recent cases relied on by the appellants. Each of those cases, said Laws LJ, had particular features justifying a departure from the Article 3 paradigm. In Sufi v UK (2012) 54 EHRR 9, the crisis in the applicant’s home state of Somalia was predominantly due to the deliberate actions of the parties to the conflict. Similarly in MSS v Belgium and Greece (2011) 53 EHRR 2, Greece was found to be responsible for the inhuman conditions to which the applicant asylum seeker would be subjected if he was returned there by Belgium. Although that is not quite the paradigm case of an intentional act by the receiving state, the Court tends to attach particular importance to the treatment of asylum seekers; Tarakhel v Switzerland (Application No. 29217/12) was another example. The situations are therefore different and, as Laws LJ made clear at paragraph 62:

the fact that there are other exceptions unlike D or N does not touch cases – such as these – where the claimant’s appeal is to the very considerations which D and N address”.

Various further arguments about Article 3 did not help the appellants. Evidence of changed circumstances – a potential transplant for GM and evidence of increased risk to KK in the DRC – would have to be raised in fresh claims before the Secretary of State. The fact that KK had always been lawfully resident in the UK could not exempt him from the rigours of the D exception, and the Upper Tribunal’s approach to the facts in his case disclosed no error of law.

Article 8

The failure of the Article 3 claims was not fatal to those under Article 8. Article 8 concerns different paradigms, the one identified as relevant in this case being the capacity to form and enjoy relationships. However, this also means that it is not enough to rely on the same facts as those which failed to bring the case within the Article 3 paradigm. Something more is needed.

In three of the cases, GS, EO and BA, the Court of Appeal refused even to consider the Article 8 claims because the appellants had not pursued them before the Upper Tribunal. Laws LJ took the view that the Court of Appeal lacked jurisdiction to consider a point which was not before the Upper Tribunal, except where it was obvious in the sense of having a strong prospect of success. That was not the case here. Underhill LJ, with whom Sullivan LJ agreed, preferred to exclude those arguments as a matter of discretion. He noted that all three appellants appeared to have made a considered decision not to rely on them before the Tribunal, even though Article 8 had been a live issue earlier in the proceedings. He might have considered allowing Article 8 points to be argued if any of the appellants had a strong case on that ground, but none of them did.

In GM’s case, the Secretary of State accepted that it was arguable that the Upper Tribunal had not adequately considered the Article 8 claim and agreed that it should be remitted for reconsideration.

As for KK and PL, neither could show any additional factual element sufficient to bring them within the Article 8 paradigm. KK’s family life was “overwhelmingly in the DRC” and his Article 8 claim was, in reality, based solely on the medical treatment which he receives here. Underhill LJ added that the Upper Tribunal had found that he would receive proper treatment in the DRC, so his claim could not get off the ground in any event. KK challenged the Tribunal’s approach to the facts, but the Court found no error of law.

Laws LJ said simply that there were no factors in PL’s case which might give rise to a claim under Article 8 when there was none under Article 3. Underhill LJ pointed out that PL had been in the UK illegally for almost all of his stay, had made friends knowing that he had no right to remain here, and had no family ties in the UK.

All of the appeals therefore failed, except for GM’s Article 8 appeal which will go back to the Upper Tribunal. GM has always been in the UK lawfully and, although there is little information in the judgment about his private or family life here, the fact that he has a friend in the UK who is willing to give him a kidney may offer a glimmer of hope. Laws LJ also hinted that GM may wish to make a fresh Article 3 claim on the basis of that possible transplant. However, in the light of the restrictive approach taken by the Court of Appeal, it seems unlikely that that will be enough to bring him within the D exception. As for the other claims, permission to appeal was refused by the Court of Appeal but may now be sought from the Supreme Court.

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