24 Oct 2016, 00 mins ago

The Court of Appeal has found in GS (India) and Others v SSHD, [2015] EWCA Civ 40 that it would not violate Article 3 ECHR to return a number of appellants suffering from serious medical conditions to their home countries, despite the fact that nearly all of them would be at risk of very early deaths if returned. Five of the appellants are suffering from end stage kidney disease (ESKD) and one is at an advanced stage of HIV infection. All except one of those suffering from ESKD are on dialysis. In most of the cases, it had been found that they would not have access to dialysis upon return. In several instances, it had been found that they would die within two or three weeks of return. Several of the appellants had prospects of obtaining kidney transplants in the UK, and one had received a transplant since his case had last been considered by a tribunal. The appellants argued that the consequences to their life expectancy were so dire that their removal or deportation would violate both Articles 3 and 8 of the European Convention on Human Rights.

In respect of Article 3, the Court of Appeal referred back to the well known European Court of Human Rights’ decisions in D v UK 24 EHRR 423 and N v UK (2008) 47 EHRR 39. In D, the applicant had reached the critical stage in his fatal illness, and the Court found that although in normal circumstances, aliens facing expulsion could not claim any entitlement to continue to benefit from medical, social or other forms of assistance provided by the expelling State. However, in the very exceptional and compelling circumstances of D’s case, it concluded that his removal would violate Article 3.

A question has arisen in subsequent cases as to whether the D exception is limited to deathbed cases. In N v UK, the Strasbourg Court maintained the high threshold set in D, stating that the very exceptional circumstances in D were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support. However, the European Court in N did not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling.

The application in N v UK was made following the House of Lords’ decision in the same case, N v SSHD [2005] 2 AC 296, [2005] UKHL 31. The Court of Appeal in GS (India) considered that the House of Lords had decided in N that the D exception was confined to deathbed cases. It also claimed that there was “no tension, let alone inconsistency, between the approach of the House and the approach of the Strasbourg Court”. This is at the very least questionable, as the European Court clearly left it open that there may be other equally compelling cases.

The Court of Appeal considered several cases subsequent to N, where the Strasbourg Court had found that Article 3 would be violated by the reception conditions for asylum seekers if they were to be removed to “safe” third countries. At first blush, one might find it surprising that removal of asylum seekers to appalling, but not fatal, conditions would violate Article 3, whereas removal of seriously ill individuals leading to certain death within a matter of weeks would not. Yet this is what the Court of Appeal found, stating that these were two distinct states of affairs. It said that the D exception is confined, literally, to deathbed cases.

These are extremely harsh decisions, and in the case of several appellants, there is no doubt that their return to their home countries will effectively amount to a sentence of death. It is understood that at least some of the appellants intend to seek permission to appeal to the Supreme Court, and if they are unable to achieve an effective remedy in the UK, then to try to take their cases to the European Court of Human Rights. It is noteworthy that the current President of the Strasbourg Court, Judge Spielmann, dissented from the judgment of the majority in N v UK, and appeared to consider that it would be sufficient for the applicant to face an early death after a period of intense physical and mental suffering. Furthermore, in the case of Mwanje v Belgium (2013) 56 EHRR 35, 6 judges, including Judge Tulkens, who had also been one of the dissenting judges in N, gave a partially concurring opinion in which they rejected the deathbed doctrine:

“We believe however that such an extreme threshold of seriousness – to be nearing death – is hardly consistent with the letter and spirit of art.3, an absolute right which is among the most fundamental rights of the Convention and which concerns an individual’s integrity and dignity. In this regard, the difference between a person on his or her deathbed and a person who everyone acknowledges will die very shortly would appear to us to be minimal in terms of humanity. We hope that the Court may one day review its case law in this respect.”

It is therefore by no means a given that the ECtHR will come to the same conclusions as the Court of Appeal claims that it did in N.

Several of the applicants also raised Article 8 arguments, claiming that their right to respect for private life would be violated by their removal when they were receiving medical treatment in the UK, but the Court of Appeal declined to consider these arguments on the basis that they had not been raised before the court below (the Upper Tribunal). In respect of the other appellants, Laws LJ cited the guidance on Article 8 in medical expulsion cases contained in MM (Zimbabwe) [2012] EWCA Civ 279, where Moses LJ stated:

“The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8. Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish ‘private life’ under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.”

Laws LJ found that none of the appellants had provided a basis for finding the existence of any such additional factors.