I v. Secretary of State for the Home Department

I
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

23 February 1996 Court of Appeal: Butler-Sloss, McCowan, Ward LJJ Asylum-application refused-appeals dismissed-applicant and daughter HIV positive-subsequent refusal of asylum on exceptional grounds–whether Secretary of State's decision unreasonable-less adequate medical facilities available in own country-whether an overriding exceptional circumstance-whether to oblige applicant to return to Uganda would subject her to inhuman treatment contrary to the European Convention. European Convention on Human Rights art. 3. The applicant was a citizen of Uganda. She was refused asylum by the Secretary of State: her appeal was dismissed. It was subsequently established that she and her infant daughter were both HIV positive. An application was made for her to be granted asylum on that exceptional basis. The application was refused. An application for leave to move for judicial review was refused. On a renewed application to the Court of Appeal, it was argued that the refusal by the Secretary of State was Wednesbury unreasonable. The medical facilities in Uganda were inferior to those available in the United Kingdom: they would not, in the applicant's circumstances be available to her: both the applicant and her daughter would have a reduced lifespan in Uganda: to return the applicant to Uganda would subject her to inhuman treatment, contrary to article 3 of the European Convention on Human Rights.

Held:

1. Albeit appropriate medical facilities in Uganda were inferior to those in the United Kingdom, they were available and not only in the capital. It was not unreasonable for the Secretary of State, in those circumstances, to require the applicant to return to Uganda: obiter the position might be different if there were no appropriate medical facilities at all.

2. That the applicant's lifespan and that of her daughter might (but not necessarily would) be reduced was not a reason for her not returning to Uganda.

3. The position of the applicant and her daughter was no different from many in Uganda, and there were no exceptional circumstances in the case.

4. To require her to return to Uganda was not contrary to article 3 of the European Convention.

M S Gill for the applicant

S Kovats for the respondent

Cases referred to in the judgment:

X and Y v Switzerland (1977) DR 9 5 7. R v Secretary of State for the Home Department ex parte I (unreported, QBD, 18 January 1996).

BUTLER-SLOSS LJ:

This is a very sad case. It was so recognised as being very sad by the letters of the Secretary of State as indeed by the chief immigration officer. We are grateful to Mr. Gill not only for his excellent skeleton argument but also for the admirable, succinct, discreet and well balanced submissions that he made to us on behalf of this applicant. This is a renewed application to move for judicial review against a decision of 15 November 1995 of the Secretary of State for Home Affairs in relation to the exceptional circumstances that both the applicant and her baby daughter are found to be HIV positive. The application for leave to move for judicial review was refused by Harrison J on 18 January 1996 and the applicant and her daughter are due to be deported, as I understand it, on Monday. The applicant was born on 27 September 1973 in Uganda. She came to the United Kingdom on 11 July 1993. At the port of entry she sought asylum, claiming a well-founded fear of persecution under the Convention. That was based upon living with her father in the north of Uganda and that her father was, unlike herself, involved in politics and opposed to the present government in Uganda. So she fled to England. She did not know at the time that she was pregnant. Her application for asylum based upon the Convention was considered and refused by the Secretary of State on, I think, 9 February 1994. She appealed to the special adjudicator who dismissed her application on 7 June 1995 and the Immigration Appeal Tribunal refused leave to appeal on 3 July 1995. But by that time her child had been born on 31 January 1994 and she and the child had both been examined and tested and were found to be HIV positive in May 1994. Consequently she renewed her application for asylum based upon the exceptional grounds that she and her child were HIV positive. That application was reconsidered twice by the Secretary of State and was finally refused on 15 November 1995. In the decision letter it is clear that the Secretary of State, writing to the MP who had taken an interest in this sad case, was well aware of the details of the distressing case; that the Secretary of State had looked at the further representations and did not find that there were sufficient grounds to justify overturning the original decision. I read:

"As Nicholas Baker explained in his reply to your earlier letters, it would not be fair or proper to treat HIV and AIDS sufferers differently from persons suffering from other medical conditions, or to allow a person entry to the United Kingdom exceptionally solely on the ground that he or she is a HIV sufferer who would benefit from treatment under the National Health Service.

It is accepted that some of the treatment available in Uganda consists of support and counselling rather than treatment through medication, as in the case of the TASO. As has already been explained, however, the question of whether treatment available in Uganda is equivalent to that available under the National Health Service is not the issue, because the quality and/ or availability of a medical treatment in another country should not be a criterion for allowing someone who relies on publicly funded treatment in this country to enter exceptionally, whatever illness he or she might be suffering from."

The letter then deals with the claim under the European Convention on Human Rights and deals with the fact that there is a mother living in Uganda. It concludes that she does not qualify for asylum in this country and she would not be removed to Uganda unless it was considered safe for her to return there. This matter came before Harrison J who in a careful judgment considered all the issues raised by Mr. Gill and came to the conclusion that the Secretary of State had been neither unreasonable nor perverse within the Wednesbury guidelines. Mr. Gill in renewing his application to this court accepts that there is some treatment available in Uganda, but seeks to raise with us that the treatment has to be available not only generally but also to the applicant and that the Secretary of State's decision letter reveals a fettered approach which does not accord with his policy. He says in paragraph two of his skeleton argument:

"The concept of ‘availability' of treatment must be construed so as to assess:

(a)what is available generally and

(b)what is available to the particular applicant…"

He has said to us that the availability is so inadequate as to raise doubts as to whether it can be said to be available at all. But, secondly, that since this applicant's mother lives some 80 miles from Kampala, and the evidence which has been presented by the applicant of doctors and case workers as to the sort of facilities available that there are largely facilities in Kampala and there are medical teams that go out from time to time from Kampala into the country, but that is on an ad hoc and not systematic basis. Consequently since she has no family in Kampala and her mother, who cannot afford to keep her anyway because there are many other children of the family, is 80 miles from Kampala, it cannot be said that there are facilities available to her. There is no doubt that this applicant is in a difficult situation and it would appear that the facilities for medical treatment of Aids and those who are HIV positive in Uganda is inferior to the facilities available on the National Health Service in this country, but the Secretary of State had information, which there has been nothing before us to show was not accurate, that there are facilities available, although inferior, and the facilities are not based exclusively in Kampala. This applicant, if she returns to live with her mother and is 80 miles from Kampala, is not precluded from going to Kampala, although there may be difficulties for her there and she is not precluded from availability, from whatever the facilities may be, outside Kampala. It is clear that there is an effort by the Ugandan authorities to deal with these very sad problems and that they are in receipt of financial aid from other countries. It is also a sad fact that this applicant is not unique. She is in the position of many women in Uganda who suffer either from being HIV positive or who suffer from Aids. Her position is sadly not unusual at all. Therefore there is nothing exceptional in the position, it seems to me, that has been raised by her case in this country, save that she has come here. In my judgment the Secretary of State's approach to the availability of facilities cannot be criticised. There is no ground for saying that he acted either perversely or unreasonably within the Wednesbury principles in his approach to this problem. The next matter raised in Mr. Gill's admirable skeleton argument is the greatly reduced lifespan. That is a sad fact of those who have Aids or those who are HIV positive. But he seeks to say that one should link the reduction of lifespan to the limited facilities and say that this reduction of lifespan is a reason for her being treated in this country rather than in Uganda. Again, for the reasons which I have already given, I do not believe that that inevitable result of Aids, which she does not yet have, and the fact that the lifespan may be more reduced in Uganda than in England is in itself a reason for saying that she should not be sent back or for saying that the Secretary of State got it wrong. The next issue raised by Mr. Gill is the position of this little girl who is still under two. It is very sad, but the Secretary of State undoubtedly had all of the distressing facts of this case well within his mind and the little girl's situation was similar to that of her mother. Mr. Gill has sought to persuade us that the susceptibility of children is a factor which is over and above the question of the mother and therefore that should persuade the Secretary of State to grant her leave. I do not think, for my part, that the Secretary of State failed in any way to have proper regard to the needs of the child as well as the mother and that he was not perverse or in error in his approach to the family. Mr. Gill then raises the question of article 3 of the European Convention on Human Rights and that by returning the mother and child to Uganda that would be subjecting them to inhuman treatment. Indeed he put to us, very movingly, that they would be having a lingering death with inadequate facilities to help them on their way. This, of course, is the position that all these people are in. Indeed it is the position that everybody suffering from Aids sooner or later will be in because, as everybody knows, at this moment there is no cure and it is a question of palliatives. The fact that the palliatives may be more efficiently provided in the United Kingdom than in Uganda takes us back to this first question as to the adequacy of the facilities available. I cannot see that in the absence of no facilities whatever, which might be another matter, the fact that the facilities in Uganda are inferior to the facilities in the United Kingdom is a reason for saying that this applicant comes within article 3 and would be subjected to inhuman treatment. The Secretary of State is criticised for referring in his letter to a decision of the European Court of Human rights; X and Y v Switzerland, a decision of 14 July 1977,*[1] which dealt with a number of different articles of the Convention, but that was a case of someone in Lichenstein with Parkinson's disease desiring to go to a specialist in Zurich and being prevented by Switzerland from doing so. In invoking article 3 the Commission observed that the right to free choice of medical assistance is not as such included among the rights and freedoms guaranteed by the Convention. As far as it goes, that shows that the Secretary of State took into account the only case there appears to be in the European Convention on Human Rights on the medical condition. Mr. Gill says that the Secretary of State was barking up the wrong tree because that has nothing whatever to do with inhuman treatment, but it is the same article that was sought to be used. I do not think that this takes the matter any further and the Secretary of State is not to be criticised for looking at that case because the underlying point in this case is whether there are any facilities available for this applicant and her child or whether there are not. There is no evidence to show that there are no facilities available which she could take advantage of, such as they are, albeit that she may do so with difficulty. Although this is an extremely sad case, I can see nothing in the approach of the Secretary of State and nothing in the arguments raised by Mr. Gill to suggest that the Secretary of State had failed to take into account what he should have taken into account; had failed to exercise his discretion correctly and can in any way be criticised as coming outside the Wednesbury guidelines. He was neither perverse nor unreasonable and I would refuse this renewed application for leave.

McCowan LJ:

I agree.

Ward LJ:

I also agree.

DISPOSITION

Application dismissed

Solicitors:

Clore & Co, London, SW6; Treasury Solicitor
 

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[1]* Application 7289/75. On 14 July 1977 the Commission held that the application was inadmissible. The Commission did not consider there could be an issue of inhuman treatment by withholding access to a particular medical expert, whom the applicant wished to consult in Switzerland, if there were the possibility of obtaining treatment elsewhere.