GS (India) & Ors v The Secretary of State for the Home Department, Court of Appeal - Civil Division, January 30, 2015, [2015] EWCA Civ 40

Resolution Date:January 30, 2015
Issuing Organization:Civil Division
Actores:GS (India) & Ors v The Secretary of State for the Home Department
 
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Case No: Case No: C5/2013/1029, C5/2013/0377, C5/2013/0590, C5/2013/1244, C5/2013/0977 & C5/2013/0883

Neutral Citation Number: [2015] EWCA Civ 40

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30/01/2015

Before :

LORD JUSTICE LAWS

LORD JUSTICE SULLIVAN

and

LORD JUSTICE UNDERHILL

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Between :

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Ms Nathalie Lieven QC (EO & GS) Declan O'Callaghan and Jacqueline Lean (GS) Ms Miriam Carrion Benitez (EO) (instructed by Jasvir Jutla & Co Solicitors and Irving & Co Solicitors) for the 1st and 2nd Appellants

Mr Raza Husain QC (GM, PL, and BA) Mr Duran Seddon (GM, PL and BA) Ms Rebecca Chapman (BA) and Ms Gemma Loughran (PL) (instructed by Birnberg Peirce & Partners, Turpin Miller LLP and Hardings Solicitors) for the 3rd, 4th and 5th Appellants

Mr Manjit Gill QC and Ms Shazia Khan (KK) (instructed by Parker Rhodes Hickmotts) for the 6th Appellant

Ms Lisa Giovannetti QC and Ms Lisa Busch (instructed by The Treasury Solicitor) for the The Secretary of State for the Home Department

Hearing dates: 3-5 November 2014

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JudgmentLORD JUSTICE LAWS:

INTRODUCTION

1. These six appeals are before the court with permission granted by Maurice Kay LJ at an oral hearing on 12 March 2014. In each case the appeal is against a determination of the Upper Tribunal (the UT), which dismissed the appellant's appeal against the decision of the Secretary of State removing him from the United Kingdom. All six suffer from serious medical conditions which are being effectively treated in this country. Five of them, some more certainly than others, would be at risk of a very early death if returned to their home States. In the sixth case the evidence suggests a somewhat longer period. They challenge the removal decisions as being repugnant to their rights guaranteed by Articles 3 and 8 of the European Convention on Human Rights. The appeals require close consideration of the judgments of the European Court of Human Rights in D v United Kingdom (1997) 25 EHRR 31 and N v United Kingdom (2008) 47 EHRR 39, and the preceding House of Lords decision in the latter case, N v Secretary of State [2005] 2 AC 296, [2005] UKHL 31. The first reason given by Maurice Kay LJ for granting permission was that there were ``arguable issues as to the precise scope of D and N, given the factual circumstances in which those decisions were made. They concern effectively illegal entrants who can properly be described as `health tourists'. None of these six appellants falls into that category...'' He granted permission ``with a view to this court producing a judgment on the scope and application of the existing authorities...''

2. GM has a free-standing ground of appeal which the Secretary of State is content to concede. The contention is that the removal decision in GM's case, made on 8 May 2012, was unlawful because it was contained in a notice which also included the Secretary of State's decision refusing an application by GM for variation of his leave to remain. That is not permissible, as is shown by this court's judgment in Ahmadi [2013] EWCA Civ 512, [2014] 1 WLR 401, in which it was held that notification of a variation decision is a pre-condition of the power to direct removal under s.47 of the Immigration Asylum and Nationality Act 2006.

3. The Secretary of State also accepts that it is arguable that the UT in GM's case failed adequately to consider the appellant's claim under ECHR Article 8; and she is also ready to receive fresh representations in EO's case because of a change in circumstances since the decision of the UT.

FACTS

4. Five of the six appellants are suffering from terminal renal failure, or end stage kidney disease (ESKD). The sixth (KK) is at an advanced stage of HIV infection. The skeleton argument prepared for GM, PL and BA by Mr Husain QC contains a very helpful summary of the salient features from which they, together with GS and EO, are suffering. The following description draws on that material.

ESKD

5. ESKD is irreversible. Unless the patient receives a kidney transplant he must remain on dialysis for the rest of his life. Dialysis performs 20% - 30% of the work of a functioning kidney. Without dialysis the patient, having minimal urine output, will likely die within 2-3 weeks. Even with dialysis, the patient will in time suffer life-shortening complications such as vascular and cardiovascular disease. Dialysis is generally required three times every week, and all five appellants undergo it with that frequency. It is an out-patient procedure, involving on each occasion as much as four hours treatment and two hours preparation and follow-up. It is enervating and exhausting. The patient also takes medicines prescribed for accompanying conditions, not least hypertension, and is potentially subject to a range of adverse events including stroke and heart attack.

6. The beneficial effects of a transplant are dramatic. It may provide a substantial increase in life expectancy and may revitalise the patient's quality of life. He is released from a regime of dialysis, can eat and drink as he chooses, travel, and work. He must however take immuno-suppressant drugs for life. A transplant from a living donor is likely to have a significantly better outcome than one from a deceased donor. There is a shortage of donors. Within the NHS there is a scheme by which, where a live donor and the patient who would receive his kidney are not medically compatible, they may enter into a ``pool'' of other donor-recipient pairs, so that within the pool compatible donors and recipients are matched. NHS Blood and Transplant (NHSBT) carries out a quarterly ``matching run'' among all the pairs in the scheme using an appropriate computer programme.

KK: HIV

7. KK, as I have indicated, is at an advanced stage of HIV infection. He has also suffered from hypertension and depression, and is at risk of opportunistic infections. He needs (and is receiving) antiretroviral therapy and is on other medications for associated conditions. I will come to the factual history in this case and the other appeals directly, but I note that the Upper Tribunal in its determination of 31 January 2013 (paragraph 55) accepted evidence that if KK were unable to receive the treatment and care which was then being administered his life expectancy would be reduced to ``months, or if lucky, a year or two''.

8. Now I will turn to the individual case histories.

GM

9. GM is a national of India born on 20 September 1986. He arrived in the UK on 9 September 2010 with an entry clearance as a Tier 4 (General) Student and leave to remain until 30 March 2012. He came to study for an MBA. However on 17 November 2010 he was admitted to Guy's Hospital diagnosed with ESKD and hypertension. He was started on dialysis and has been on a 3-sessions per week regime since, together with other medications to treat his blood pressure. He had to give up his full time MBA studies in early 2011. On 16 November 2011 he applied for further leave to remain so that he might continue his treatment: it was said that to return him to India would reduce his chances of receiving efficient and affordable medical care. His application had not been decided by 30 March 2012, when his current leave expired: his leave was accordingly extended by statute (Immigration Act 1971 s.3C) pending the Secretary of State's decision and any appeal, including appeal to this court. His leave therefore remains extended while these proceedings are extant. In these circumstances it is clear that he has always been lawfully present in the United Kingdom.

10. The Secretary of State refused GM's November 2011 application on 8 May 2012 and directed his removal from the United Kingdom. It is to be noted that before that, his friend Emmanuel Mugisha had offered to donate a kidney; but in April 2012 Guy's Hospital indicated that the offer was not then being carried forward having regard to GM's immigration status.

11. GM's appeal against the Secretary of State's decision was dismissed by the First-tier Tribunal (the FTT) on 25 July 2012. The FTT granted permission to appeal to the UT. On 30 September 2012 the UT held that there had been no error of law by the FTT, whose decision should therefore stand.

12. GM suffers from depression as well as his major kidney disease, and there is evidence of a risk of suicide. On 30 May 2014, by contrast with their position in 2012, Guy's Hospital indicated their willingness to assess GM's suitability for a live donor transplant; and by 1 July 2014, it was clear that the proposed donor, Emmanuel Mugisha, was compatible.

13. As I have indicated the Secretary of State consents to GM's appeal being allowed and remitted to the Upper Tribunal for further consideration of his claim under Article 8.

PL

14. PL is a national of Jamaica born on 7 October 1965. He was admitted to the United Kingdom on 19 July 2001 with a visitor's leave until 17 August 2001. He obtained extensions of his leave as a student, ultimately until 31 October 2002. Since then he has overstayed. On 2 May 2012 he claimed asylum, stating however that the ``real issue'' was his medical condition. He had first been diagnosed as suffering from renal impairment in November 2005, but by February 2009 had advanced kidney failure and has been maintained on twice weekly dialysis sessions ever since then. He too has hypertension and depression. His asylum claim was refused on 7 August 2012. He appealed to the FTT on Article 3 grounds, asserting both a fear of ill treatment by reason of his political affiliations if he were returned to Jamaica, and that he would die within weeks if he did not receive regular dialysis. He was said to...

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