| The best Zimbabwe news site on the world wide web |  |
| NEWS |
| FORUMS |
| NEWS ANALYSIS |
| READERS' FORUM |
Leave to remain in the UK on health grounds
By Taffy
Nyawanza
THE case of
the Ama Sumani, the terminally ill Ghanaian widow, whose forcible return
to Ghana by the UK immigration authorities aroused so much public angst
and debate, is the backdrop of this short article on health and immigration.
A recent Court of Appeal decision has also thrown light on such cases generally. The case is called BC (India) vs SSHD, a decision by Lord Justice Toulson in a matter which had failed at both the first appeal and re-consideration appeal.
The case involved an Indian national who had come to the UK as a visitor and, like Ama Sumani, was then hospitalised with ‘end-stage renal failure’. The agreed facts were that he was, while under treatment which included constant dialysis, he was not at any current risk of death, but that if treatment were stopped he would die of kidney failure, probably within weeks.
The issue before the Court of Appeal, therefore, was whether his removal would breach his rights under Article 3 of the European Convention for Human Rights.
In the course of its judgement, the Court of Appeal commented on two previous important cases with respect to HIV/AIDS and health issues generally. The cases are D v UK and N v SSHD.
In the D case, D was dying of AIDS. It was agreed that there was a complete absence of treatment and social support in his home country of St Kitts. D had been receiving treatment and counselling in the UK for four years. He had no family in his home country and had formed a relationship with his carers in the UK. The court agreed that this was an example of extreme circumstances and that removal would result in an imminent and lingering death and would cause acute mental and physical suffering to D.
Then along came N. The N case was promulgated in 2005 – eight years after D and when AIDS had by now become firmly fixed in the public imagination. N was Ugandan and HIV positive on arrival in the UK. Four years later, she became very ill with an AIDS related illness which was being stabilised by anti-retroviral treatment. Her life expectancy in the UK was about 10 years but only two years if returned to Uganda.
At the Court of Appeal stage, it had been argued for the Home Office that the case of D should be strictly confined and that even if N had received treatment in the UK for a long time, a lower standard of treatment in Uganda would only breach Article 3 if there were very strong compassionate circumstances. The Court agreed and found that her circumstances did not make removal a breach of Article 3.
N appealed to the House of Lords [2005] UKHL 31. The House concluded that difficulty in obtaining suitable medication in Uganda which would result in a drastically reduced life expectancy was not exceptional enough to reach the very high threshold required to establish a breach of Article 3 of the convention. The Lords expressed their sympathy with N but concluded that Article 3 could not be used to protect all those suffering from AIDS related illness who managed to make it to the UK.
These were the two major cases that needed to be rationalised in the BC case involving the Indian appellant.
In BC, it was argued that the appellant would be unable to afford treatment in India, and that although treatment for kidney disease sufferers is available in some parts of India, it is in the big cities, and not in the rural area from which BC came.
The House was not persuaded. It observed that a distinction needed to be made; that Article 3 may be available in cases where somebody is actually dying but not where somebody is capable of being kept alive by continuing medical care, but whose life would be at real risk of being very greatly shortened on return. Essentially therefore, a fear of a shorter life is not enough to satisfy the high threshold for an Article 3 breach.
The court in BC then tried to absolve itself from its own conscience and stated that, as in N, while the return of the appellant would not violate Article 3, it did not follow that the Secretary of State was bound to deport BC as he could exercise his discretion not to do so.
The court then made reference to the real concern that the courts have, being the policy issues rooted in the fear of opening the floodgates. It stated that in this particular case, the floodgates might not be opened in the same way that they might be in the case of somebody suffering from HIV AIDS for the simple reason that while the world is suffering from a major HIV AIDS epidemic, there is no equivalent epidemic of people suffering from advanced kidney disease.
It then passed the buck to the Secretary of State and his discretion. The case of Ama Sumani clearly demonstrates the futility of trusting in the discretion of the Secretary of State.
What are the implications of this extremely harsh decision?
Generally, it is open for asylum seekers who have been diagnosed as HIV positive to submit representations that their removal from the UK would be a breach of their human rights as protected by the Human Rights Act 1998 which is incorporated with the European Convention of Human Rights (ECHR).
In such an application, a recent medical report with key data is critical. Such data should include information of when the diagnosis of HIV was made, the current diagnosis, the current viral load and CD4 count, the lowest CD4 count reached and the highest figure viral load reached to establish the severity of the disease, a note of any current infections and current medication and in particular any specific reference to a combination of medications. More importantly, there should be a note of the Applicant’s life expectancy (with or without treatment) and the consequences if the treatment were to be discontinued if the applicant is required to return to their country.
It is also advisable to submit information on the availability of treatment in the applicant’s country of origin. The World Health Organisation (WHO) and the Terrence Higgins Trust are good sources of such information.
It is important to note, however, that the Courts have consistently concluded that a person liable for removal cannot resist removal in order to continue receiving medical, social or other forms of assistance. The Courts have concluded that where similar treatment may not be available to a person in their country because of cost implications, this does not necessarily amount to inhuman or degrading treatment. The Courts have concluded that the circumstances would have to be extreme to warrant a grant of leave to remain in the UK.
On the other hand, exceptional factors that may give rise to a successful Article 3 claim include circumstances where the claimant is in the terminal stages of illness and has a short life expectancy even with treatment, and where the removal of the patient would both significantly shorten their life expectancy and result in acute mental or physical suffering. Also, if the claimant has been receiving treatment for a condition in the UK for a long time (4 years being the threshold established in D) and has become dependent on the treatment he or she is receiving to sustain life even for a short period, this can be an exceptional factor.
The courts are also clear that they will respect the wide discretion the Secretary of State enjoys. If the Secretary of State, therefore, decides to remove such a person, the courts will not interfere with that decision, unless discretion has been exercised unreasonably, or where the Secretary Of State has not even considered his own policy on HIV/AIDS in a refusal letter. The Secretary of State is obliged to consider his own policy to grant leave to remain in the UK on medical grounds under the grant of ‘discretionary leave’.
If in a decision, it is clear that the Secretary of State have not considered his policy, that decision would be unlawful, but only to the extent that the Tribunal would order the matter back to the Home Office to re-consider the matter and make a fresh decision.
It is important to note that a breach of Article 8 of the Human Rights Act may also be argued in medical cases because the right to respect for private life includes a person’s physical and moral integrity.
The Home Office policy also mentions children and states that consideration to grant ‘discretionary leave’ should be taken if:
• If as a result of the principal applicant’s reduced life expectancy, the child is likely to be orphaned in the near future and there are no close relative in the country of origin who could care for the child.
• In the case of families whose children were either born in the UK and have reached the age of seven or over or who have come to the UK at an early age and have spent seven or more continuous years of their life here.
In a separate Court of Appeal decision, it was found that while an HIV+ Appellant would not necessarily lack the requisite treatment on return to Ghana, her yet unborn baby however, would have little chance of staying well as she could not be breastfed, and dried formula milk would be mixed with unsafe water. As there was a reasonable likelihood that the baby would die; therefore, it was a breach of Article 3 to return the mother to Ghana.
The Court said: "It seems…obvious simply as a matter of common humanity that for a mother to witness the collapse of her new-born child’s health and perhaps its death may be a kind of suffering far greater than might arise by the mother’s confronting the self-same fate herself."
Strange logic but
perhaps proof that the Courts are not as hard as nails after all.
Taffy Nyawanza works for Bake & Co Solicitors of Birmingham. He can be contacted on info@bakesolicitors.co.uk, ph. 0121 616 5025 or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk.
Disclaimer:
This article only provides general information and guidance on immigration
law. It is not intended to replace the advice or services of a solicitor.
The specific facts that apply to your matter may make the outcome different
than would be anticipated by you. The writer will not accept any liability
for any claims or inconvenience as a result of the use of this information.
JOIN THE
DEBATE ON THIS ARTICLE ON THE NEWZIMBABWE.COM FORUMS
All material copyright newzimbabwe.com
Material may be published or reproduced in any form with appropriate credit to this website