The decision

Heard at Field House

DS (Art3:HIV_ Helical Treatment)South Africa [2004] UKIAT 00018
Date: 20 January 2004


Date Determination notified:

29 January 2004


Mr N H Goldstein (Chairman)
Mr A Smith
Mr D R Bremmer JP




Secretary of State for the Home Department



For the appellant: Miss J Russell of Counsel.
For the respondent: Mrs R Giltrow, Home Office Presenting Officer.


1. The appellant, a citizen of South Africa, had been granted leave to appeal to the Tribunal against the determination of an Adjudicator (Miss R Clayton) who dismissed his appeal on asylum and human rights grounds.

2. The learned Vice President, Mr G Warr, granted leave upon human rights issues alone for the following reason:

"It is said since the Adjudicator dealt with this matter, the claimant has been diagnosed as being HIV positive and the disease is at an advanced stage. While I do not rate the chances of success as very high, I deem it appropriate to grant leave at least."

3. Indeed, as clarified to us by Miss Russell at the outset of the hearing, the appeal before the Adjudicator took place in July 2002 and it was not until approximately one month later that the appellant learned that he was HIV positive.

4. Miss Russell made an application to amend the grounds of appeal, which was strenuously opposed by Mrs Giltrow. We refused the application bearing in mind inter alia that no explanation had been put forward for this late application. Indeed Miss Russell accepted she was seeking to simply raise grounds relating to the Adjudicator's assessment of the appellant's credibility which had been previously considered by the Vice President in granting leave on human rights grounds only. It was apparent from the basis upon which he granted leave he would have considered the remaining grounds to be lacking in arguable merit.

5. Miss Russell informed us that she sought to distinguish the circumstances of this appellant from that in the recent Court of Appeal decision in N [2003] EWCA Civ 1369. She further most helpfully made it clear that her submissions solely relied on Article 3 issues, that she would not be seeking to persuade us that the appellant's circumstances engaged Article 8 of the ECHR. Miss Russell sought to persuade us that the Tribunal should find in the appellant's circumstances that Article 3 was engaged. In the alternative she asked us to consider remitting the appeal for further consideration by the Adjudicator in the light of the appellant's current medical condition.

6. We have decided to dismiss the appeal.

7. There were a number of reports and letters before us provided by Dr B McCarron, a Consultant Physician in HIV/ID General Medicine who has been treating the appellant since 21 August 2002. Dr McCarron's letter of 30 September 2002 explains that when she first saw the appellant she "thought he was obviously immunosuppressed at that time and subsequent blood tests confirmed his HIV viral load was exceptionally high at greater than 100,000 copies/ml and he was severely immunocompromised with a CD4 count of 143. In view of his very poor health he was commenced on antiretroviral drugs quickly as I was worried about his health."

8. Dr McCarron continued:

"In view of his intelligence and motivation he is on quite a complicated antiretroviral regime, however, I think this is necessary due to the advanced stage of his HIV disease. He was commenced on therapy on 5 September 2002. Since then I have seen Donald on a weekly basis in view of his poor health and he has made a very satisfactory improvement. His weight was increased to 66kgs. His cough is less marked and he feels generally better. However, Donald remains still very significantly immunocompromised. Without antiretroviral medication I suspect his life span to be at the maximum two years. Donald still requires quite considerable medical input into his condition which I believe he would not get in South Africa and on compassionate grounds I would strongly support his application to remain in the UK."

9. In a subsequent letter dated 10 October 2002 Dr McCarron refers to figures taken from the "World Health Organisation" (he does not mention the date of such report) denoting that:

"Approximately forty million people are living with HIV in the world and ninety four per cent live in developing countries, twenty eight million Africans have HIV but only thirty thousand Africans receive any antiretroviral medication and very few receive triple therapy which Donald is taking. Less than four per cent of people who need antiretroviral medication in the developing world can access it".

10. It is apparent from Dr McCarron's subsequent letter of 9 January 2004 that the appellant's condition was found by her to have significantly improved. Dr McCarron points out inter alia:

"Since attending the clinic Mr Soko has done very well indeed on a combination of Efavirenz Tenofovir and Lamivudine. His immune system has improved and his CD4 count has climbed to 243 with suppressed viral load. He remains compliant with his therapy".

11. Dr McCarron, who gives no indication of any expertise as to the availability of treatment in South Africa nonetheless points out that should the appellant return to South Africa he would in Dr McCarron's opinion find it very difficult to maintain this regime. Dr McCarron continues:

"Although some antiretroviral therapies are available in South Africa they often do not offer triple therapy which is the standard in the UK and the Westernised World and often not Mr Soko's present regime. South Africa has made some antiretrovirals available but I believe a years treatment costs in the range of $US 1,000 per year. One of the medications available is Combivir which I believe is offered at 90 cents per day. However, Combivir is a combination of Lamivudine and Zidovudine, which Mr Soko previously received but had to stop in view of quite disabling paraesthesia of his feet and therefore this medication would not be suitable for Mr Soko in the future".

12. The most recent communication from Dr McCarron appears in a bundle of documents, the late production of which we agreed to admit into evidence and to which Mrs Giltrow raised no objection. We have noted that Dr McCarron's letter of 19 January 2004 which confirms that the appellant continues to attend her clinic. It is noteworthy that Dr McCarron points out that "he has never had any AIDS defining illness, however, he does have HIV-related illnesses with recurrent respiratory tract infections, oral thrush and weight loss. His CD4 count was at a nadir 143 and I suspect that without medication his life expectancy would be in the range of two years. However, if he remains in the UK with monitoring and treatment I would expect him to have a good prognosis and a long term survival".

13. The Tribunal were also provided with an undated report from Dr C A Alao of the Africa Security Unit, Centre for Defence Studies at Kings College London. There is attached to the report Dr Alao's curriculum vitae in which inter alia he points out that for the last ten years he has visited and conducted research in more than twenty African countries "on different aspects of Conflict, Security and International Relations". He also states that he is a regular commentator on African affairs on the BBC World Service Programme and other television and radio networks. Dr Alao did not appear before us to give evidence and although his report is undated it is apparent by his reference to providing answers to the six questions raised by the appellant's solicitors in a letter of 7 January 2004 that clearly therefore his report would have been dated sometime in January 2004.

14. Miss Russell accepted that although aspects of the appellant's circumstances would not in isolation enable the appellant to cross the high threshold necessary to engage Article 3, they would do so if taken cumulatively.

15. Miss Russell further submitted that the appellant in N was a comparatively young woman whilst the appellant in the instant case was aged 53. Further N's country of origin was Uganda which was described in the CIPU Report of April 2002 as "at the forefront of African countries in the treatment and prevention of AIDS". With respect to Miss Russell we do not find there to be such a stark distinction in this regard. Indeed, she overlooks the opinion of her own expert, Dr Alao, who in pointing out that South Africa was "still far behind with the treatment of the disease when compared with the developed Western European countries" further observed that:

"South Africa is ahead of most countries in sub-Saharan Africa in the treatment of HIV victims…”

16. Miss Russell also referred us to paragraph 52 of the judgment in N which she argued highlighted the cumulative factors that had to be considered. However, we note that Laws LJ at paragraph 52 of his judgment observed that the mere fact that treatment in the receiving country would significantly reduce life expectancy was not in itself enough to bring Article 3 into play. He did, however, continue:

"On the other hand, that factor combined with other considerations such as the assumption of responsibility by the member state, the advanced state of the illness and the lack of any family support in the receiving country, may combine, as a matter of degree, to bring the Article into force. As Sir Christopher Staughton said in K v Secretary of State [2000] Imm AR 11 (para 11) there is no absolute rule:

'The question is whether it would be 'inhuman or degrading treatment' to expel the applicant, and to answer this question one has to weigh up all the circumstances of the case, as was done in the case of D and decide whether that test is fulfilled'."

17. In this regard Miss Russell pointed out that it was the appellant's case that he had last been in contact with his wife on the telephone in September 2001 and had since lost contact due to local difficulties. It is, however, apparent to us and is clear that at the time of the appellant's arrival in the United Kingdom he left behind a wife and several children in South Africa. We further note from the appellant's recent statement signed and dated by him 19 January 2004 that he had recently spoken to a priest in a Roman Catholic Church in the United Kingdom who was going to South Africa the following month and had provided him with a letter to forward to her. As Mrs Giltrow rightly submitted it did not follow that prior to following the appellant's return to South Africa he would be unable to resume contact with his wife and family.

18. Miss Russell reminded us of Dr McCarron's prognosis as to the appellant's life expectancy. In so doing we reminded her that she had at all times made it clear that her calculation as to the appellant's life expectancy was on the basis the appellant would be "without medication" upon return to South Africa.

19. Miss Russell referred us to objective material within the appellant's bundle which she maintained demonstrated that AIDS sufferers in South Africa were stigmatised and that the South African Government was in general terms intolerant of their plight. Without going into the detail of the reports to which she referred us, it was apparent, as we made clear to her in the course of the hearing’ that the extracts that she cited did not report this contention. For example, Miss Russell referred us to a report relating to the use of a water cannon on AIDS sufferers conducting a peaceful demonstration. As we pointed out, whilst such a report did not make for pleasant reading, notwithstanding the possible perception by the authorities at the need for crowd control, it was hardly evidence which demonstrated that AIDS sufferers in general in South Africa were as such, stigmatised.

20. Miss Russell recognised what she understood to be the imposition of a stricter test in relation to Article 3 issues within the judgment of N. She pointed out that it was not her contention that the appellant's circumstances amounted to a "death bed" case but Dr Alao in his report made it clear there were a number of grave difficulties the appellant would face on return.

21. Miss Russell referred us to a particular passage at page 2 of his report. The passage is, however, noteworthy for its opening observation that:

"The Government in South Africa has decided to give victims of HIV free treatment. It is expected this will begin before the end of the year".

22. With respect to Dr Alao he then proceeds in the same passage to appear to speculate that it will be unlikely the appellant would be able to benefit from this scheme because of "a number of logistical considerations that may delay the scheme." (Dr Alao does not further elaborate) and that "after the scheme has taken off it is still going to be on a pivotal scale. Nurses and Counsellors would have to be trained and the scheme will only be in a few hospitals. In short, before the scheme can have the extensive impact it may take some few years. For someone like Mr Soko this may be too late" (the typed emphasis is ours).

23. Dr Alao's comments appear to be speculative and he does not refer to any additional material to support his view that it may take some years before the appellant has the benefit of the free treatment in South Africa.

24. For the reasons above stated we do not find that the appellant's circumstances even taken cumulatively would enable the appellant to cross the high threshold demanded in order to engage Article 3.

25. Our conclusion in this regard is reinforced by the view expressed by Laws LJ at paragraph 40 of N as follows:

"I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant's own country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is judged in the context of cases all or many of which (like this one) demand one's sympathy on pressing grounds. On its facts, D was such a case. I consider that any broader view distorts the bands between the demands of the general interest of the community, whose service is conspicuously the duty of elected government, and the requirements of the protection of the individual's fundamental rights. It is a balance inherent in the whole of the Convention."

26. Whilst it is evident that the treatment the appellant is receiving in the United Kingdom may prove to be better than in South Africa, and despite our sympathy for the appellant, his circumstances cannot be said to be, not only exceptional but also extreme.

27. We find that the facts of this case do not establish that the appellant's return to South Africa would place him at risk of treatment contrary to his human rights.

28. For the above reasons, the appeal is dismissed.

N H Goldstein
Vice President