West Law Report

No humanitarian reason prevents removal

From The TimesJune 6, 2008

No humanitarian reason prevents removal
European Court of Human Rights
Published June 6, 2008
N v United Kingdom (Application No 26565/05)
Before J-P. Costa, President and Judges Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, I. Cabral Barreto, B. M. Zupancic, R. Maruste S. Botoucharova, S. Pavlovschi, J. Borrego Borrego, K. Hajiyev, L. Mijovic, D. Spielmann, R. Jaeger and M. Villiger Deputy Registrar M. O’Boyle
Judgment May 27, 2008

The removal of an alien suffering from a serious illness to a country where the facilities for treating that illness were inferior to those available in a state party to the European Convention on Human Rights might raise an issue under the Convention but only in a very exceptional case where humanitarian grounds against removal were compelling.

The Grand Chamber of the European Court of Human Rights held, by 14 votes to 3, that there would be no violation of article 3, prohibiting inhuman or degrading treatment, if the applicant, Ms N, were to be sent back to Uganda from the United Kingdom. The Grand Chamber also held, by 14 votes to 3, that no separate issue arose under article 8, guaranteeing the right to respect for private and family life.

Ms N was a Ugandan national, born in 1974 and lived in London. She had Aids. The case concerned her allegation that her return to Uganda would cause her suffering and lead to her early death because of her illness. She came to the United Kingdom on March 28, 1998, under an assumed name. She was seriously ill and was admitted to hospital. On March 31, 1998, solicitors lodged an asylum application on her behalf, claiming that she had been illtreated and raped by the National Resistance Movement in Uganda and was in fear of her life and safety if she were returned.

The Secretary of State for the Home Department refused her asylum claim on March 28, 2001, finding that her claims were not credible, that there was no evidence that the Ugandan authorities were interested in her, that treatment of Aids in Uganda was comparable to any other African country, and that all the major antiviral drugs were available in Uganda at highly subsidised prices. The applicant appealed.

On July 10, 2002, her appeal was dismissed concerning the asylum refusal, but allowed in relation to article 3. The Home Secretary appealed against the article 3 finding.

The Immigration Appeal Tribunal allowed the appeal on November 29, 2002. The applicant appealed unsuccessfully to the Court of Appeal (The Times October 23, 2003; [2004] 1 WLR 1182) and the House of Lords ( The Times May 9, 2005; [2005] 2 AC 296).

The application was lodged with the European Court of Human Rights on July 22, 2005.

I Alleged violation of article 3

The Court summarised its case-law concerning expulsion cases where the applicant claimed to be at risk of suffering a violation of article 3 on the ground of ill-health, noting that it had not found such a violation since D v United Kingdom (Application No 30240/96) ( The Times May 12, 1997; (1997) 24 EHRR 423)) where very exceptional circumstances and compelling humanitarian considerations were at stake.

The Court recalled that aliens who were subject to expulsion could not in principle claim any entitlement to remain in the territory of one of the states which had ratified the European Convention on Human Rights in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state. The fact that the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if s/he were to be removed from the Convention state was not sufficient in itself to give rise to breach of article 3.

The decision to remove an alien who was suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the contracting state might raise an issue under article 3, but only in a very exceptional case, where the humanitarian grounds against the removal were compelling, such as in D.

Although many of the rights it contained had implications of a social or economic nature, the Convention was essentially directed at the protection of civil and political rights. Furthermore, inherent in the whole of the Convention was a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

Advances in medical science, together with social and economic differences between countries, meant that the level of treatment available in the contracting state and the country of origin might vary considerably. Article 3 did not place an obligation on the contracting state to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A contrary finding would place too great a burden on the state.

Finally, the Court observed that, although the applicant’s case concerned the expulsion of a person with an HIV and Aids-related condition, the same principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost.

Although the applicant applied for, and was refused asylum in the United Kingdom, she did not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated ill-treatment. Her claim under article 3 was based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.

The evidence before the national courts indicated that if the applicant were to be deprived of her current medication, her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through lack of resources, it was received by only half of those in need.

The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came. It appeared that she had family members in Uganda, although she claimed that they would not be willing or able to care for her if she were seriously ill.

The United Kingdom authorities had provided the applicant with medical and social assistance at public expense during the nine-year period it had taken for her asylum application and claims under articles 3 and 8 to be determined by the domestic courts and the European Court. However, that did not in itself entail a duty on the part of the United Kingdom to continue to provide for her.

The Court accepted that the quality of the applicant’s life, and her life expectancy, would be affected if she were returned to Uganda. Currently, however, the applicant was not critically ill.

The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, involved a certain degree of speculation, particularly in view of the constantly evolving situation as to the treatment of HIV and Aids worldwide. Concluding that the applicant’s case did not disclose very exceptional circumstances, the Court found, with Judges Tulkens, Bonello and Spielmann dissenting, that her removal to Uganda would not violate article 3.

II Alleged violation of article 8

The Court held, with the same three judges dissenting, that it was not necessary to examine the complaint under article 8. Full text at http://www.echr.coe.int

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