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N (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
N (FC) (Appellant)
Secretary of State for the Home Department (Respondent)
THURSDAY 5 MAY 2005
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
N (FC) (Appellant) v. Secretary of State for the Home Department (Respondent)
 UKHL 31
LORD NICHOLLS OF BIRKENHEAD
1. This appeal raises a question of profound importance about the human rights obligations of the United Kingdom in respect of the expulsion of people with HIV/AIDS. The appellant, a woman 30 years of age, comes from Uganda. She was born there in December 1974. She came to London on a flight from Entebbe in March 1998. She was refused leave to enter this country. Her claim for asylum was rejected. The Secretary of State proposes to expel her. But there is a tragic complication: she suffers from advanced HIV/AIDS ('full blown AIDS', in the old terminology).
2. When the appellant arrived here she was very poorly. Within hours she was admitted to Guy's Hospital. She was diagnosed as HIV positive, with an AIDS defining illness. In August 1998 she developed a second AIDS defining illness, Kaposi's sarcoma. The CD4 cell count of a normal healthy person is over 500. Hers was down to 10.
3. As a result of modern drugs and skilled medical treatment over a lengthy period, including a prolonged course of systematic chemotherapy, the appellant is now much better. Her CD4 count has risen to 414. Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for 'decades'. But without these drugs and facilities her prognosis is 'appalling': she will suffer ill-health, discomfort, pain and death within a year or two. This is because the highly active antiretroviral medication she is currently receiving does not cure her disease. It does not restore her to her pre-disease state. The medication replicates the functions of her compromised immune system and protects her from the consequences of her immune deficiency while, and only while, she continues to receive it.
4. The cruel reality is that if the appellant returns to Uganda her ability to obtain the necessary medication is problematic. So if she returns to Uganda and cannot obtain the medical assistance she needs to keep her illness under control, her position will be similar to having a life-support machine switched off.
5. The history of the appellant's proceedings can be summarised shortly. On 28 March 2001 the Secretary of State refused her application for asylum. On 10 July 2002 the adjudicator, Mr Paul Norris, dismissed the appellant's appeal from that asylum decision. But he allowed her appeal on the ground that to return her to Uganda would be a breach of her Convention right under article 3 of the European Convention. He said that on the evidence her case for protection under article 3 was 'overwhelming'.
6. On 20 February 2003 the Immigration Appeal Tribunal allowed an appeal by the Secretary of State. The appellant appealed to the Court of Appeal. The court, comprising Laws, Dyson and Carnwath LJJ, held unanimously that the tribunal's conclusion was flawed for want of legally sufficient reasons:  1 WLR 1182. But by a majority, comprising Laws and Dyson LJJ, the appeal was dismissed on the ground that the appellant's evidence did not bring her case within that 'extreme' class of case to which it must belong if a claim based on article 3 is to succeed: paras 43 and 49. Carnwath LJ would have remitted the case to the tribunal for redetermination.
7. I mention first, to put on one side, the fact that the Secretary of State has wide powers to grant the appellant leave to remain here. The existence, and exercise, of these powers are not in question on this appeal. The sole legal issue before the House is whether deporting the appellant to Uganda would be incompatible with her Convention right under article 3 of the European Convention. Article 3 prohibits torture and, more widely, 'inhuman' treatment.
8. Clearly there is no question of any breach of article 3 so long as the appellant remains here. So long as she is in this country she, like everyone else here, will continue to receive the medical treatment on which her health and life are dependent. The question is whether the act of expelling the appellant would itself be inhuman treatment within article 3. Unlike the separatist Sikh in Chahal v United Kingdom (1996) 23 EHRR 413, the appellant if expelled is not at risk of being subjected to intentional ill-treatment in her home country. The adverse prospect confronting the appellant in Uganda is of a different character. It derives from Uganda's lack of medical resources compared with those available in the United Kingdom. Thus the all-important question is whether expelling the appellant would be inhuman treatment within article 3 given the uncertainties confronting her in Uganda through shortage of the necessary drugs and medical facilities there.
9. If the appellant were a special case I have no doubt that, in one way or another, the pressing humanitarian considerations of her case would prevail. But in principle the law should seek to treat like cases alike. A similar principle applies to the exercise of administrative discretions. Sadly the appellant is not a special case. In its overall shape the appellant's case as a would-be immigrant is far from unique. As everyone knows, the prevalence of AIDS worldwide, particularly in southern Africa, is a present-day human tragedy on an immense scale. Each case will differ in detail and degree. But a common feature in all these immigration cases is that the would-be immigrant faces a significantly shortened expectation of life if deported. The AIDS illness of the would-be immigrant is currently under control by treatment received here while the immigration process is being completed, but his medical condition will deteriorate rapidly and fatally if he is deported and in consequence the necessary medication is no longer available to him.
10. These brief statements of the problem encompass much human misery. No one can fail to be touched by the plight of the appellant and of others in a similar position. The prospect facing them if returned to their home country evokes a lasting sense of deep sadness.The Strasbourg jurisprudence
11. It is against this background that the House must decide whether article 3 can properly be interpreted to afford protection against expulsion in cases such as that of the appellant. In reaching its decision the House is required to take into account the Strasbourg jurisprudence: section 2(1) of the Human Rights Act 1998. The principal decisions of the European Court of Human Rights are reviewed by my noble and learned friends Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood. As appears from those reviews, the Strasbourg jurisprudence, it has to be said, is not in an altogether satisfactory state. The difficulty derives from the decision in D v United Kingdom (1997) 24 EHRR 425, concerning the expulsion of an AIDS sufferer to St Kitts, and the basis on which the Strasbourg court has subsequently sought to distinguish that case.
12. In the case of D the court extended the reach of article 3. The court noted, at paragraph 46, that contracting states have the right, as a matter of well-established international law and subject to their treaty obligations including the European Convention, to control the entry, residence and expulsion of aliens. Having noted the Chahal type of case, the court said it must reserve to itself sufficient flexibility to consider the application of article 3 in other contexts: paragraph 49. The court then applied article 3 in what it described as the 'very exceptional circumstances' of that case.
13. The difficulty posed by this decision is that, with variations in degree, the humanitarian considerations existing in the case of D are not 'very exceptional' in the case of AIDS sufferers. In the case of D the applicant was 'in the final stage of a terminal illness, AIDS, and had no prospect of medical care or family support on expulsion to St Kitts': see the court's appraisal of the 'exceptional circumstances' of D's case in Bensaid v United Kingdom (2001) 33 EHRR 205, 218, para 40. If unavailability of appropriate medical care or family support was regarded as an exceptional circumstance for the purpose of article 3 in the case of D, why is this not equally so in the case of other AIDS sufferers? In D's case there was the additional feature that D was dying. But the appellant's condition in the present case will rapidly become terminal, as soon as her life-preserving medication is discontinued. This prompts a further question: why is it unacceptable to expel a person whose illness is irreversible and whose death is near, but acceptable to expel a person whose illness is under control but whose death will occur once treatment ceases (as may well happen on deportation)?
14. As I see it, these questions are not capable of satisfactory humanitarian answers. This highlights, if I may respectfully say so, that on this subject the Strasbourg jurisprudence lacks its customary clarity. A supposed difference of degree in humanitarian appeal, with emphasis on a claimant's current state of health, is not a satisfactory basis for distinguishing between D's case and other AIDS cases. If a difference of degree in humanitarian appeal were the basis for distinguishing D's case from the present case I would unhesitatingly share the adjudicator's view that the appellant's case based on article 3 is overwhelming. The humanitarian considerations in the present case are of a very high order.
Article 3 and medical care for would-be immigrants
15. Is there, then, some other rationale underlying the decisions in the many immigration cases where the Strasbourg court has distinguished D's case? I believe there is. The essential distinction is not to be found in humanitarian differences. Rather it lies in recognising that article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In the case of D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state. Article 3 imposes no such 'medical care' obligation on contracting states. This is so even where, in the absence of medical treatment, the life of the would-be immigrant will be significantly shortened. But in the case of D, unlike the later cases, there was no question of imposing any such obligation on the United Kingdom. D was dying, and beyond the reach of medical treatment then available.
16. I express the obligation in terms of provision of medical care because that is what cases of this type are all about. The appellant, and others in her position, seek admission to this country for the purpose of obtaining the advantages of the medical care readily available to all who are here. What the appellant seeks in this case is the right to remain here so that she may continue to receive this medical treatment.
17. That the appellant should seek to do so is, of course, eminently understandable. But, as the Strasbourg jurisprudence confirms, article 3 cannot be interpreted as requiring contracting states to admit and treat AIDS sufferers from all over the world for the rest of their lives. Nor, by the like token, is article 3 to be interpreted as requiring contracting states to give an extended right to remain to would-be immigrants who have received medical treatment while their applications are being considered. If their applications are refused, the improvement in their medical condition brought about by this interim medical treatment, and the prospect of serious or fatal relapse on expulsion, cannot make expulsion inhuman treatment for the purposes of article 3. It would be strange if the humane treatment of a would-be immigrant while his immigration application is being considered were to place him in a better position for the purposes of article 3 than a person who never reached this country at all. True it is that a person who comes here and receives treatment while his application is being considered will have his hopes raised. But it is difficult to see why this should subject this country to a greater obligation than it would to someone who is turned away at the port of entry and never receives any treatment.
18. No one could fail to be moved by the appellant's situation. But those acting on her behalf are seeking to press the obligations arising under the European Convention too far. The problem derives from the disparity of medical facilities in different countries of the world. Despite this disparity, an AIDS sufferer's need for medical treatment does not, as a matter of Convention right, entitle him to enter a contracting state and remain there in order to obtain the treatment he or she so desperately needs.
19. For these reasons, which are substantially the same as those of Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, I would dismiss this appeal.
LORD HOPE OF CRAIGHEAD
20. The decision which your Lordships have been asked to take in this case will have profound consequences for the appellant. The prospects of her surviving for more than a year or two if she is returned to Uganda are bleak. It is highly likely that the advanced medical care which has stabilised her condition by suppressing the HIV virus and would sustain her in good health were she to remain in this country for decades will no longer be available to her. If it is not, her condition is likely to reactivate and to deteriorate rapidly. There is no doubt that if that happens she will face an early death after a period of acute physical and mental suffering. It is easy to sympathise with her in this predicament.
21. The function of a judge in a case of this kind, however, is not to issue decisions based on sympathy. Just as juries in criminal trials are directed that they must not allow their decisions to be influenced by feelings of revulsion or of sympathy, judges must examine the law in a way that suppresses emotion of all kinds. The position that they must adopt is an austere one. Some may say that it is hard hearted. But the fact is that there are at least two sides to any argument. The consequences if the decision goes against the appellant cannot sensibly be detached from the consequences if the decision is in her favour. The argument, after all, is about the extent of the obligations under article 3 of the European Convention on Human Rights ("the Convention"). It is about the treaty obligations of the contracting states. The Convention, in keeping with so many other human rights instruments, is based on humanitarian principles. There is ample room, where the Convention allows, for the application of those principles. They may also be used to enlarge the scope of the Convention beyond its express terms. It is, of course, to be seen as a living instrument. But an enlargement of its scope in its application to one contracting state is an enlargement for them all. The question must always be whether the enlargement is one which the contracting parties would have accepted and agreed to be bound by.
22. Lord Bingham of Cornhill described the judicial task in Brown v Stott  1 AC 681, 703, in this way:
23. The issue in this case has to be seen against that background. The need for careful consideration is made all the more acute by the fact that it is not the words of article 3 of the Convention that we are being asked to construe but the jurisprudence of the European Court of Human Rights in Strasbourg which explains the application of that article in its decision in D v United Kingdom (1997) 24 EHRR 423. There is no question in this case of the appellant having been subjected to inhuman or degrading treatment in this country. Nor is has it been suggested that there is any risk of her being subjected to any of the forms of treatment that article 3 proscribes from intentionally inflicted acts of the public authorities in Uganda or from those of non-state agents in that country against which the authorities there are unable to afford her appropriate protection. We are dealing here with a decision of the Strasbourg court which created what the Court of Appeal rightly accepted was an "extension of an extension" to the article 3 obligation:  EWCA Civ 1369, per Laws LJ, para 37; Dyson LJ, para 46. Our task is determine the limits of that extension, not to enlarge it beyond the limits which the Strasbourg Court has set for it.
24. I would respectfully endorse what was said on this point by Lord Bingham in R (Ullah) v Special Adjudicator  2 AC 323, 350, para 20:
25. Our task, then, is to analyse the jurisprudence of the Strasbourg court and, having done so and identified its limits, to apply it to the facts of this case. We must not allow sympathy for the appellant to divert us from this task. It is not for us to search for a solution to her problem which is not to be found in the Strasbourg case law. It is for the Strasbourg court, not for us, to decide whether its case law is out of touch with modern conditions and to determine what further extensions, if any, are needed to the rights guaranteed by the Convention. We must take its case law as we find it, not as we would like it to be.
D v United Kingdom
26. The starting point for an examination of the issue is to be found in the reasons which the Strasbourg court gave for its decision in D v United Kingdom  24 EHRR 423. The applicant in that case was diagnosed in August 1994 as suffering from AIDS while he was serving a prison sentence for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs. By August 1995 his CD4 count was below 10 cells/mm3 and his illness was in the advanced stages. By January 1996, when his solicitors asked for him to be given leave to remain on compassionate grounds as St Kitts could not provide him with the medical treatment that he would require, he had had the disease for over 18 months and his prognosis was extremely poor. In June 1996 the Commission declared his application admissible, on the view that article 3 would be violated if he were to be removed to St Kitts. His condition continued to deteriorate in the meantime. In October 1996 he was granted bail so that he could reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. There was a further and sudden deterioration in his condition in February 1997. When his case was heard by the court later that month his counsel stated that his life was drawing to a close. In paragraph 51 of its decision the court noted that he was in the advanced states of a terminal and incurable illness.
27. In its assessment the court began by rejecting any suggestion that account could be taken in the context of the article 3 guarantees of the state's right to control the entry, residence and expulsion of aliens and of what it recognised was a justified response to the scourge of drug trafficking. It stressed in para 47 that the article 3 guarantees applied irrespective of the reprehensible nature of the conduct of the person in question. There is, of course, no question of the appellant in this case having been engaged in reprehensible conduct. But it is important to appreciate that the reach of the article guarantees is all embracing, however disgraceful, promiscuous or reprehensible the applicant's conduct may have been. It is for the contracting state to secure those guarantees to the applicant irrespective of the gravity of any offences which he may have committed, or be likely to commit, while in its territory. The obligation under article 1 is to secure the rights and freedoms defined in the Convention to everyone within its jurisdiction. Physical presence within the territory is all that was needed to entitle an applicant to this protection.
28. The court then turned its attention in para 49 to the contexts in which the article 3 guarantees had been applied so far in extradition cases. These were where the individual was at risk of being subjected to any of the proscribed forms of treatment as a result of intentionally inflicted acts of the public authorities in the receiving country or of acts of non-state bodies in that country when the authorities there were unable to afford him the appropriate protection. Reference was made in a footnote to Ahmed v Austria (1996) 23 EHRR 278. But there are other examples. In Soering v United Kingdom (1989) 11 EHRR 439, para 88, the court said that to extradite a fugitive to another state where there were substantial grounds for believing that he would be in danger of being subject to torture, however heinous the crime allegedly committed, while not explicitly referred to in the brief and general wording of article 3, would plainly be contrary to the spirit and intendment of the article. So the inherent obligation to extradite was extended to cases where the fugitive was faced with a real risk of being exposed to the proscribed treatment in the receiving state. In Chahal v United Kingdom (1996) 23 EHRR 413, paras 80-81 the court observed that the protection afforded by article 3 was thus wider than that afforded by articles 32 and 33 of the United Nations Convention on the Status of Refugees 1951 and that even in this context there was no room for balancing the risk of ill-treatment against the reason for expulsion in determining whether a state's responsibility under article 3 was engaged. This too is an important point. The extension of the guarantee is not accompanied by a relaxation of its absolute nature.
29. The court then turned in the second paragraph of para 49 to the circumstances of the case that was before it. This part of the assessment is carefully worded and needs to be examined with care: