The decision

Heard at Field House

ED (Losing Health Improvement - No Infringement) Ethiopia [2003] UKIAT 00170
On 28 November 2003


Corrected transcript of decision given at hearing
Signed: 08.12.2003
Issued: 11 December 2003


Mr J Freeman(Chairman)
His Honour Judge N Huskinson
Mr F T Jamieson






The appellant in person
Miss A Holmes for the respondent


This is an appeal by a citizen of Ethiopia against the decision of an adjudicator, Miss S I Bayne, sitting at Epsom, on 3 January, dismissing her appeal against refusal of leave to enter. The sole issue on which leave to appeal was granted on human rights grounds only related to the appellant’s medical condition. The adjudicator dealt with that as follows:

39. I have carefully considered the medical evidence in this case in so far as her claim under Articles 3 and 8 of the ECHR are concerned. It is clear that the appellant’s sustained injury to her eye on 12 July 2002 she was extremely vague as to how this injury was sustained but it has nevertheless resulted in the need for a Cornea graft which requires on-going treatment and close monitoring. I take account of the view of Mr Duguid that the appellant should not be repatriated until she had been monitored for a 6 month period.

40. I have considered the objective evidence with regard to the medical service in Ethiopia and I have taken into account the letter from the Ethiopian Health Support Association. The nature of this particular association was not explained to me but in any event, I find the contents of this letter do little more than substantiate the contents to the objective evidence. It is clear that medical facilities in Ethiopia are limited and it is clear that it is difficult to get proper treatment for many medical conditions. However, no reasons were given for the confusion of the EHSA but treatment is especially poor in the case of eye problems and I give little weight to this particular assertion.

41. I received no evidence to satisfy me to the requisite standard that the appellant’s medical problems are of such severity that repatriation to Ethiopia would result in treatment such as to amount to an infringement of her rights under Article 3 of the ECHR. There is no evidence that she is likely to loose her eyesight. In fact the initial operation upon her eye was successful and although treatment is poorer in Ethiopia than in the UK there is no evidence to show that it is impossible to get treatment and as result her claim under Article 3 of the ECHR fails.

42. For the same reasons I find that there is no real risk of the appellant’s right to physical and moral integrity under Article 8 of the ECHR being breached. In any event, the decision to refuse to grant leave to the appellant was made in the course of the lawful implementation of the United Kingdom Immigration Control and in these circumstances is not disproportionate.

3. The appellant is not represented by solicitors, as those who were acting for her have told us that controlled legal representation has been withdrawn. However, her friend Mr Redi Jemal has appeared with her in Court, he is an Amharic speaker and has skilfully translated everything that was said (which we made sure was made as simple as possible), and we were satisfied that she understood everything. The appellant’s former solicitors did however do their job and as directed provided us with an up to date report by a consultant ophthalmic surgeon. That reports says:

The appellant first presented to the Western Eye Hospital on 12 July 2002 with a history of traumatic injury to the left eye apparently sustained while performing some DIY tasks. She was noted to have a full fitness corneal laceration on the right with evidence of Iris prolapse through the wound. We paused to note that the injury was to the appellant’s right eye and not her left. She had primary wound repair performed on the same day. Her vision only improved to 1/60 Snellen in the ensuing few weeks and she required right pupilloplasty performed under general anaesthetic on 24 October 2002 after which her acuity improved to 6/36 Snellen.

Despite this efforts and despite the efforts of the therapeutic contact lens she was noted to still have a slight leak of aqueous fluid through her wound on 22 November 23002 and she underwent reparative full-thickness corneal graft on 4 December 2002, performed under general anaesthetic. She requires re-suturing after the graft on 17 November 2002. Since this time she has achieved a best vision of 1/6 improving to 6/36 Snellen through a pinhole. This is likely due to an irregular astigmatism induced by her initial injury and the subsequent grafting.

She has no evidence of any retinal pathology at present, and her eye is now stabilizing. She continues to use anti-glaucomatous and anti-inflammatory medication, once daily in the right eye, and she is due to be seen in early December 2003 in the eye clinic. In terms of improving her visual acuity in the future, she would, at the very least, require a rigid gas permeable contact lens to be fitted, and, indeed, may require further surgery in order to improve the vision. It is unlikely that her vision in the right eye will ever be as good as the left in the future.

4. What the appellant has told us is that she has some pain when she sleeps on the right side. She also suffers from weeping when she goes out in bright sunshine. She told us that she does have a pair of sunglasses although it was a bright winter’s morning when we sat, she was not wearing them on the day of our hearing. She has told us however that she feels “strain and pain” when concentrating and has difficulty in reading.

5. The position shown by Mr Maini’s report as we summarised it to her is that her condition has settled down. She still has only limited vision in her right eye, and, to get any improvement, further surgery may be required including at least inserting a rigid contact lens. She does however have what is called a therapeutic contact lens and her eye is being treated with ointment. The appellant complains that skilled medical treatment would not be available in Ethiopia. As Ms Holmes has pointed out, there does not seem to be any reason why what is being done for the appellant at the moment should not still be available to her. She would still have her contact lens, and could take a supply of ointment when she returned; and there is no evidence that that sort of medication would not be available in Ethiopia.

6. We do accept that specialist care, by way of a rigid contact lens or further surgery, is not likely to be readily available in Ethiopia. It follows that the position which will face the appellant on return to Ethiopia is this: she will have limited vision in her right eye, though no problems with her left one. Her condition will unfortunately not get any better; but, on the other hand, there is no reason in our view why it should get significantly worse.

7. We have to consider whether sending her back to this state of affairs would be a breach of the appellant’s human rights. Article 3 of the Human Rights Convention says that people should not be exposed to “inhuman or degrading treatment”. Bearing in mind the minimum level of severity which has been required in cases that have come before the Courts here and in Europe, we have no doubt that this appellant’s case does not pass that high test.

8. Whether the effect of losing the chance to improve her eyesight would amount to a breach of her physical and moral integrity, contrary to article 8 of the Human Rights Convention, or not is not something we need to give a definite view on. That is because we think that, since she can see perfectly well out of her left eye and live her daily life in that way, the fact that she has limited vision in he right eye, and some discomfort, could not amount to an interference with her private life which would outweigh what Simon Brown LJ called in Djali [2003] EWCA Civ 1371 “the imperative and overriding interests of immigration control”. We have a great deal of sympathy with this appellant; but, for the reasons we have given, her appeal must be dismissed.

John Freeman