The decision

JB (AIDS and Articles 3 and 8) Ghana [2005] UKIAT 00077


Date: 1 December 2004
Date Determination notified:


The Honourable Mr Justice Ouseley (President)
Mr R Chalkley (Vice President)
Mrs D E Taylor


[ ]


Secretary of State for the Home Department

For the Appellant: Ms F Webber, instructed by Terrence Higgins Trust
For the Respondent: Mr I Richards, Home Office Presenting Officer


1. This is an appeal against the determination of an Adjudicator, Mr C B Buckwell, promulgated on 29 October 2003. The Appellant appealed on human rights grounds alone against the decision of the Secretary of State to refuse to grant her leave to remain dated 10 November 2001, with supporting reasons in a letter dated 7 November 2001, confirmed on 19 November 2001. The Appellant is a citizen of Ghana born in 1970, who said that she entered the United Kingdom illegally in November 1999. The basis for the claim is that the Appellant suffers from AIDS and that her return to Ghana would deprive her of the treatment she needs, and shorten her life very considerably. The Adjudicator dismissed her appeal. She was refused permission to appeal to the Tribunal because the case was seen as comparable to N v SSHD [2003] EWCA Civ 1369. Statutory Review was granted because the approach to affordability of treatment in the circumstances required to be argued.

2. She had no leave to enter or remain when the Secretary of State’s decision was made and so no appeal lay against it under the Immigration Rules. An appeal could only be brought on human rights grounds. We asked Ms Webber who appeared for the Appellant whether this appeal was brought or continued under the 2002 Act, because it appeared from section 82 that it did not constitute an “appealable decision”. She was unable to assist. The position as it appears to us is that the appeal continues under the 1999 Act by virtue of paragraph 6(4) or (5) of the Schedule to the 2002 Act (Commencement No.4) Order 2003.

3. The credibility of the Appellant and her sister was recorded by the Adjudicator as not being at issue. This means that it was accepted that the Appellant had not known that she had AIDS when she came to this country. She had not felt ill and had had no indication of her illness. She must in fact have been ill for a very considerable time, with a non-symptomatic version, because by early April 2000, she had been admitted for emergency treatment to hospital, with advanced AIDS, a CD4 count of 5, many serious related illnesses and near to death. In June 2000, after her emergency treatment had begun, she applied to stay on compassionate grounds. It was this application which was refused in November 2001.

4. The acceptance of the Appellant’s credibility involved acceptance also that she had been financially supported by her church and Pastor in Ghana for a two month Church trip to Denmark and Holland. She had come to the United Kingdom from Holland without visa or passport, as she later explained in a convoluted story about documents, in order to visit her sister who was also here illegally. She had stayed more than her originally intended two or three weeks because of her growing medical problems. She had already gone to hospital when the man who had made the entry arrangements came to arrange her departure.

5. The date of her arrival depended entirely on the evidence given by the Appellant who, because she had not arrived from Holland with a passport, could not show in any other way when she in fact arrived.

6. The Adjudicator had a considerable amount of evidence as to the progress of her illness, her treatment needs, her life expectancy with treatment and without it, the prospects of her obtaining such treatment in Ghana, and the nature of death from AIDS.

7. In a careful and sympathetic determination, the Adjudicator held that the Appellant’s condition had improved significantly although she still suffered from perpetual tiredness and frequent headaches. She depended on the considerable support given to her by her sister in the United Kingdom. He then said:

“56. I accept that if the Appellant were to be returned to Ghana, and were unable to continue with the necessary treatment as an individual who has developed AIDS, her life expectancy would be considerably shortened, possibly to a period of months. Whilst I note that other cases have looked carefully at CD4 counts and viral loads, I accept as fact that without the necessary treatment, the life of this Appellant will be curtailed. That is the stark reality. It appears specifically to be the case that she needs to be able to continue her treatment with combivir and navaripine. I accept that the annual costs of such treatment, and of the necessary testing and consultancy, would appear, as at the date of the hearing, to be at a sum (in equivalent cedis) of £1,550 per annum. There is evidence before me that USAID have assisted Ghana in the establishment of projects to provide drugs for the treatment of AIDS. That would appear to be in the east of Ghana, and not in the area surrounding Kumasi, or indeed in Accra, the capital. However, I am satisfied, based on the current caselaw before me, that the issue of financial affordability is not a valid reason which an appellant may raise alone in terms of the basis for resisting removal to his or her home state under the European Convention. That said, I also accept that treatment is, in principle, available in Ghana for the victims of AIDS.”

8. The Adjudicator next considered arguments which were said to show that in Ghana the actual supply of the drugs would be subject to disruption, that there was a shortage of medical staff, and a cultural taboo about the illness which would make her family reluctant to offer support. There were difficulties travelling between her home town and the town where the nearest suitable hospital was. She would lose the support of her sister and of the church here. He continued:

“57. However, it is nevertheless important to consider the high threshold to be reached for a claim to succeed under Article 3 of the European Convention. It is the case that the condition of the Appellant would undoubtedly not be worse, were she to be returned to Ghana, than if she had never received any treatment in the United Kingdom. My findings are that treatment is available in Ghana, with the appropriate medicine available which the Appellant now receives in the United Kingdom. I cannot accept that the issue of affordability is a matter for my consideration, based on present caselaw. The threat of shortages, or supply disruption generally, are in my view speculative. It is the case that the Appellant does have a family to whom she could return. If they react to the Appellant in a particular manner, which is unsupportive, then that is a decision which the family, collectively or individually, will have made. Ghana, sadly, has tens of thousands of AIDS sufferers, and it cannot surely be a situation which is not also faced by those sufferers. If the family were collectively to turn its back on the Appellant, which is in my view by no means certain, despite the views of cultural reaction set before me, that is a decision made by that family and its members alone. That would not be a response for which the United Kingdom government should be held responsible.”

9. The Adjudicator dealt with Article 8 by first pointing out that although the Appellant enjoyed strong bonds with the sister in the United Kingdom, neither had any status; the sister’s had not yet been resolved. There would not be a complete absence of community support in Ghana.

“60. Without wishing to appear mercenary, it could even be argued that her treatment under the National Health Service does not favour the economic well-being of the United Kingdom, but it would no doubt in my view be right that the Respondent would be entitled to reply upon the fact that the removal of the Appellant, if fit to travel at the time, would constitute the legitimate enforcement of immigration laws and rules necessary in a democratic society for the effective enforcement of the same. This is not in my view a case where any exceptional circumstances, as to the establishment of private or family life, can be argued. On the basis that Article 8(2) may be relied upon by the Respondent, no breach of Article 8 rights would occur upon the removal fo the Appellant. The decision made previously by the Respondent in this respect in my view struck the correct balance between competing interests (Ala). Whilst I have expressed my own opinion in relation to Article 8 issues, this is not a case where an adjudicator should substitute a decision by the Respondent, which was undoubtedly reasonable (Edore).”

10. The Adjudicator dismissed the appeal but made a recommendation to the Secretary of State that some sort of exceptional leave should be granted. We have made it clear that such recommendations should not be made. The Adjudicator has no jurisdiction to make them. The Secretary of State is not obliged to give effect to them. It is for the Secretary of State to assess whether any case for exceptional treatment has been made out. It is for the claimant to make it out to him. If the findings of the Adjudicator support such an approach, that will be as persuasive as it can be. Otherwise it raises false hopes and it is not clear that it would be a material consideration by itself for the Secretary of State, but it creates confusion as to what should be done about it.

11. The critical point made by Ms Webber for the Appellant was that the Adjudicator had failed to approach the impact of Article 3 correctly. He had treated the critical issue as being the availability of the treatment in Ghana and not the availability of the necessary treatment to the Appellant. She took us through a number of authorities which she submitted showed that the crucial issue was not whether the treatment was available to someone the country of return but what was available to the individual in question, and what in fact would happen to him. Examples were Bensaid v UK [2001] 33 EHRR 10, D v UK [1997] 23 EHRR 423, N v SSHD [2003] EWCA Civ 1369, CA v SSHD [2004] EWCA Civ 1165, and R (Razgar) v SSHD [2004] UKHL 27.

12. Mr Richards, for the Secretary of State, submitted that there was no need for the Adjudicator to consider the question of the availability of the treatment to this Appellant herself once he had concluded that it was available at least to some in Ghana. He founded himself upon the remarks of Sir Christopher Staughton in K v SSHD [2001] Imm AR 41. These are set out in N v SSHD and clearly played a considerable part in the Adjudicator’s thinking.


13. Our first observation is that the Adjudicator, for want of better material, found himself to a considerable extent reliant upon judicial remarks made in judgments on leave applications, or in granting leave to appeal on paper, or on admissibility decisions of the ECtHR (though we accept that those are supposed to reflect established ECHR jurisprudence). These materials are unlikely to be helpful. Bensaid is of limited direct assistance because the basis of the decision was that the facts put forward to support the asserted breach of Article 3 were found to be too speculative.

14. However, we have no doubt but that Ms Webber is correct in principle and that her point is supported by the authorities which she cites. The answer to the question of whether the removal of someone would breach Article 3 or 8, whether or not the conditions faced in the country of return would themselves breach either Article, depends upon the facts. These are fact sensitive decisions. It is not possible to reach the necessary overall conclusion without the facts being found so far as the evidence permits them to be. The mix of circumstances which arise is sufficiently varied for the total individual picture to matter.

15. It would be quixotic to hold that Article 3 could be breached if treatment for AIDS was not available in country A and so was not accessible to the claimant on return, and yet would not be breached if treatment were available in country B but could not in reality be received by the claimant there. What is required is an understanding of what the position will be upon return. It was the composite picture which was persuasive in D, and not in N, but the analysis required in both cases was of what was available to the individual. We do not think that K says anything different.

16. What would be a mistake however is to turn the need to understand what the individual’s position would be on return, into a need to find that the treatment received in the United Kingdom must be replicated abroad if a breach of the ECHR is to be avoided. That is really the point being addressed in K. The position may be that there might be no treatment at all in the country of return, or that there might only be terminal care or palliative care or a less effective form of therapeutic care. Care might be available in the country in a different location from that in which a claimant would chose to reside. That may involve difficult choices between family, treatment and a shortened life expectancy. There might only be care available which a claimant could not afford or only available through a charity whose beneficence could not be guaranteed. When the full position of the claimant has been established, the assessment can be made of whether those circumstances reach the exceptionally high threshold of Article 3 in its doubly extended application, as explained in N and exemplified in D.

17. The Adjudicator erred in law in paragraphs 56 and 57 in the passages cited. He clearly treated the key issue as being the availability of treatment in Ghana and did not reach any conclusion on its availability to the Appellant. We do not think that his conclusion can be read as saying that the treatment for AIDS which the Appellant needs would be available to her. There were a number of factors which he would have needed to consider before reaching such a conclusion. Ms Webber submitted that the circumstances were sufficiently clear to enable the appeal to be allowed outright. Removal would reduce the Appellant’s life expectancy to between 6 and 12 months, before an agonising death. The Appellant would always be at risk of such a rapid decline because of the gravity of her condition when she started treatment. She would always need such treatment. The family evidence showed that there was no prospect of support from them and they were likely to shun her. They lived in a town from which it was difficult to access the nearest hospital.

18. In any event, there had been a change of circumstances since the Adjudicator’s determination, which could be put in evidence if there were a material error of law. The Appellant had given birth to a son in early April 2004. So far, blood tests had not shown him to have HIV but it would not be known for a while yet whether he was clear. We were told that the Appellant had had unprotected intercourse with a man, the father, whose name she did not know. He would therefore be unable to offer any support to her or to the child in Ghana but there was no evidence to support the assertion that she did not know his name or that he could offer no support. The birth of the baby were said to increase the anguish which this less than responsible woman would face, dying in Ghana, and to pose risks there which the baby would face from the unhygienic water and health conditions against which he would have no natural immunity.

19. We are not prepared to allow this appeal outright. Putting to one side the effect of the birth of the baby, it does not seem to us that to return the Appellant would necessarily breach Article 3. First as we have said, the facts as to what she would experience would have to be found. Areas which call for consideration are: the availability of funds to her from her church which, on her evidence, has been prepared to spend money on her enjoying a two month trip to Europe despite her lowly position with the pastor; the extent to which her sister, if she were able to stay in this country, could send her money for treatment or care which would ease her position even if it did not cover the whole cost of the type of treatment which she now enjoys; if the sister were unable to stay, she might be able to provide the same care which she now does; the ease of living in the town where suitable treatment was available would be relevant, after all, the choice as put by the Appellant herself is stark. The question of the availability of care as death approaches to reduce pain and anguish, hospice or palliative care could also be very relevant.

20. Even if the future were as bleak as Ms Webber sought to paint it we do not see it as inevitable that a claim under Article 3 would succeed. The test derived from N, paragraph 40, is as follows: insert1

21. It is also of note that the conclusion of the majority in N was that the law permitted only one answer on the facts in that case. It follows that the range of circumstances which will lawfully engage Article 3 in this type of case is very narrow. Whilst the facts here may be stronger than in N because of the lesser life expectancy, there is no clear dividing line. It would be perfectly possible to conclude that these were not sufficiently extreme, even taken at the highest as put by the Appellant.

22. The feature of D which in our view made his removal so inhumane was not the shortening of his life expectancy; the Article 2 claim which drew upon that was not resolved by the ECtHR. It was not that he was near death and would die quickly in St Kitts. It was that his death was inevitable within a comparatively short time anyway, or at least was then assumed to be; the shortening of his life was not the important point. But given his imminent death, inevitable whether he remained in the United Kingdom or not, it was inhumane to remove him to a place where the conditions of dying or death were so lacking in solace or compassion at the last, and so different from the conditions in which he had prepared himself to die here. The key was the comparative conditions under which he would be dying, not those under which he would continue to enjoy life.

23. We would regard a crude analysis of Article 3 based on life expectancy or the degree of its shortening as inapt. It would not reflect the ECHR jurisprudence. It would involve judgments, eg that return with a six months life expectancy was too short but, say, that seven months was not, or that a given percentage reduction in life expectancy for a given age was too great. We do not find our task assisted by references to circumstances in which return would be akin to a death sentence. Indeed, part of the reasoning in Soering was that death would be too long delayed. We find it impossible to answer the questions posed by these Article 3 cases by asking ourselves whether our decision amounts to a death sentence. Does it cover someone who will live for two years on return, but could enjoy four years here? It is difficult to see how one can say what period or reduction in life expectancy amounts to a death sentence. It is not an instructive analogy here.

24. We can see nothing to support the notion that to return someone to a country where his life expectancy would be very short and significantly shortened necessarily breaches Article 3. After all the judgment in D was that the life expectancy would be halved through return but that was not the crucial factor, indeed it does not appear to have been a very important one. It was the circumstance of the inevitably imminent death. In D, the consequence was that D would still die very shortly, it was supposed, but that he would die in the comfort which he had come to expect and rely on. It was not suggested that the breach of Article 3 would arise if he had to receive a lifelong treatment in the United Kingdom but would die shortly without it. The Article 2 issue was not dealt with.

25. We find it hard to see, given the balance inherent in the ECHR and the double extension which D involved, that the contrast between a long life here on permanent treatment and a short life in one’s own country, which may not provide for the same treatment or do so free as a matter of policy or resources, will of itself breach Article 3. What actions pass the exceptional requirements of N cannot be so determined; they require all the facts to be known. Someone, for example may have been in the United Kingdom for a very long time; he may have a life threatening illness or condition which requires comparatively short term treatment, the illness may have been contracted here. The contrast between resources may sometimes be relevant. The basis upon which he came may also be relevant. A deliberate illegal entry so as to impose oneself on the NHS for medical treatment might be relevant to what humanitarian considerations were engaged. The extent to which an application for entry clearance would have been successful might also be relevant to this extended application of Article 3.

26. It must also be relevant, when assessing whether or not there would be a breach of Article 3, that the Appellant has already enjoyed the benefit of several more years life than she would have had in Ghana, and that she would return with a greater life expectancy than when she arrived. This all affects the extent to which in any given case the exceptional humanitarian considerations of N are engaged.

27. Ms Webber contended here that there was an assumption of responsibility by the United Kingdom authorities; but this was scarcely an assumption of responsibility and more the imposition of it by someone who was illegally here and would not have been admitted had she asked to come for NHS treatment. The treatment of someone in an emergency, so as to remove an immediate threat to their life, does not entail a lifelong obligation to treat them, to treat them free and to permit them to remain for that purpose. That is not what Article 3 in its doubly extended application is about.

28. We asked the advocates about the assumption which underlay all the submissions of the Appellant, which was that she would continue to receive NHS treatment as an illegal immigrant, with no basis for her remaining other than to receive treatment which she would not be allowed in to the United Kingdom to receive and which was not for an illness contracted here. We were told that the health service treatment rules were somewhat inaccessible and we were given Ms Webber’s understanding of them. This was that at present doctors had a discretion, but in future would not be able to exercise such a discretion under rule changes, which would affect only those who were not already receiving treatment. Frankly, we find it astonishing that neither party is able to provide chapter and verse for this and that the Secretary of State is unable to show what the position is. We are not prepared to reach any conclusions other than to note that the Appellant has received free treatment and none of the medical reports suggested that that would end. But that does not mean that she is entitled to make the assumption which she does.

29. Rather than allowing the appeal outright, we gave careful consideration to whether or not the result of the appeal would be the same even if the facts were as Ms Webber put them forward. But in the end we concluded that the need for the full position to be ascertained before a final conclusion was reached, meant that the matter should be remitted. The remittal hearing will also be able to deal with the consequences for the case of the baby, both in terms of its wellbeing and the Appellant’s. It will also be able to inquire why the name of the father is unknown, if it truly is unknown. The fact of the matter might be thought to be that the Appellant decided to have a baby when she knew that her position was at risk and knew that they could both be returned to Ghana. That is a risk which she plainly was prepared to take, even as a mother with the baby’s interests allegedly at heart. However, the issue will have to be dealt with in the light of all the facts.

30. This appeal is allowed and the matter is remitted for hearing by an Adjudicator other than Mr Buckwell. In practice, it will be heard by the new AIT. We would suggest that this matter is suitable for a legal Panel hearing. We report it for what we say about the approach to Article 3 and the assessment of facts.