The decision

Heard at: Field House

VP (Palliative AIDS treatment - return permissible) Vietnam [2004] UKIAT 00267
On 12 July 2004


Corrected transcript of decision given at hearing
Signed: 15.07.2004
Issued: 23.09.2004     


Mr JG Freeman (vice-president)
Mr PR Moulden (vice-president)
Mr CH Bennett (legal member)




Secretary of State for the Home Department



For the appellant: Miss C Record, counsel instructed by David A Grand (non-practising barrister, with authority)
For the respondent: Mr A Hutton


This is an appeal by a citizen of Vietnam against the decision of an adjudicator, Mr J G Peart, sitting at Taylor House on 12 December 2003 dismissing his appeal on asylum and human rights grounds. The only ground on which permission to appeal was given refers to the appellant’s suffering from AIDS. The vice-president who did so said:

It is arguable that the humanitarian appeal of the case is so powerful that it cannot be resisted by authorities of a civilised state.

That is a reference to the decision of the Court of Appeal in N [2003] EWCA Civ 1369, paragraph 40. This principle was recently upheld in specific terms by the House of Lords in Razgar [2004] UKHL 27: see the speech of Lord Walker of Gestingthorpe at paragraph 31.

2. We are concerned with the principles involved in decided cases, rather than the minute comparison of facts between them; but each of them has to be looked at against its own factual background. We recognise that there is an extreme case principle, represented by the decision of the European Court of Human Rights in D v. United Kingdom [1997] 24 EHRR 423, related by the Court of Appeal in N at paragraph 18. D was a sufferer in the terminal stages of AIDS, whose life was said to be drawing to its close. He faced return to the small island of St Kitts, where there was nothing to show that he would receive any moral or social support.

3. Turning to the facts of N; from the medical report reviewed at paragraph 3, it appears that she was suffering from full-blown AIDS, in an extremely advanced state, and her life expectancy was under 12 months. The figure given by Dyson LJ at paragraph 48 is one of two years; it is not clear where that came from, but we accept that may have been so. As Dyson LJ pointed out, there are many cases of this kind, where the subject’s life expectancy would be substantially reduced on return to their home country. The facts relating to N’s situation on return are set out by Laws LJ at paragraph 10. It does not appear that she would have any relations on whom she could depend. She came from the small town of Masaka, where the hospital could not treat AIDS at all.

4. This appellant, said to have been a street child, is now 19 and has no one in Vietnam on whom he could depend. So far as his prognosis is concerned, it is set out in a report by an HIV consultant, Dr Schwenk, of 6 July 2004:

In conclusion we have achieved quite a good control of his HIV disease although he presented with end stage AIDS. Without treatment his prognosis would be counted in a few months. More specifically the probability to survive for three years without further AIDS defining illness would be in the order of 5%. By contrast anti-retroviral treatment has brought his three year probability of disease free survival to greater than 95%. This success would be lost within some weeks if he were forced to stop anti-retroviral treatment.

There is some question as to what Dr Schwenk could have meant by his references to “family” in the second page of his report. Clearly on the appellant’s case he had none in Vietnam, although he does have a friend in this country who is said to be the “family” referred to in the last paragraph.

5. So far as the medical situation on return is concerned we have in front of us a press release from the BBC Vietnamese Service of 18 April 2003, referring to the Binh Trieu centre in Ho Chi Minh City. This is said to be the only care centre for AIDS patients in Vietnam. Ho Chi Minh City, better known under is former name of Saigon, is the second city in Vietnam; and Mr Hutton has assured us that the appellant could be returned directly there, if it came to that. The nature of the care provided at Binh Trieu is well described by the Director Mr Nguyen in the following terms:

What we do here is to give a patient some moral support so that they could become a little calmer, more optimistic and therefore prolong their lives.

There is no actual treatment of AIDS, except for members of staff who have become accidentally infected; but the hospital does provide some treatment for accompanying illnesses such as tuberculosis and skin diseases.

6. The question for us is this: is this a case where removal could not in reason be insisted on by the authorities of a civilised state? Like all such cases, of which as we are reminded by Dyson LJ there are many, this is a hard one; but so was that of N. Contrary to the position in that case, there is at least one dedicated centre available on return for this appellant, where palliative treatment can be had, if no more. He does have some chance of survival in the medium term, as D did not. In our view there is no substantial basis on which we are able to distinguish the decision in N, and we have to answer the question before us in the negative. It follows that this appeal is dismissed.

John Freeman

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