GS (India) & Ors v The Secretary of State for the Home Department, Court of Appeal - Civil Division, January 30, 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|
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:  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
LORD JUSTICE LAWS
LORD JUSTICE SULLIVAN
LORD JUSTICE UNDERHILL
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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:
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  2 AC 296,  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  EWCA Civ 512,  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.
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.
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.
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.
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.
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 be awaiting a kidney transplant.
15. The FTT dismissed his appeal on 26 September 2012. But they made an extra-statutory recommendation to the Secretary of State (paragraph 32) to the effect that there was ``ample scope'' for her to allow PL to remain as a matter of discretion so that he might obtain a transplant.
16. The UT on appeal held that there had been no error of law by the FTT. Their determination was promulgated on 14 January 2013. Apart from all the other material, they had before them a statement from PL's solicitor that PL had been taken to hospital following a suicide attempt by consumption of excess alcohol: alcohol is incompatible with dialysis. There is evidence since the UT decision that as at 8 July 2014 it was being anticipated that PL would be ``activated'' on the transplant waiting list within three months. He has also been found to be suffering from epilepsy.
17. BA is a Ghanaian born on 15 October 1970. He left Ghana in 1998, returning from time to time; he left for the last time in 2000. In 2003 or 2004 he entered the UK illegally. He appears to have been diagnosed as suffering from ESKD and HIV in July 2005. It seems he had previously been diagnosed in Ghana as suffering from malignant hypertension. In 2005 in this country he was started on twice weekly dialysis and antiretroviral treatment. On 24 April 2006 he sought leave to remain on human rights grounds, making claims under Articles 3 and 8 and citing his medical predicament. The application was refused on 1 September 2010. BA appealed. On 9 December 2010 the FTT allowed his appeal under Article 3, making no finding under Article 8. The Secretary of State appealed with permission to the UT. On 14 November 2011 the UT allowed the Secretary of State's appeal, stressing (paragraph 3) that it was nevertheless open to the Secretary of State to grant BA leave to remain as a matter of discretion.
18. BA appealed to this court, and on 23 May 2012 the appeal was allowed by consent and the case remitted to the UT on the footing that the UT had failed to address a positive finding by the FTT, namely that BA would not be able to afford medical treatment in Ghana (see FTT paragraph 14).
19. And so the matter went back before the UT which promulgated its decision on 24 January 2013. Again, the Secretary of State's decision was upheld.
20. GS is an Indian national born on 1 March 1981. He entered the UK on 1 November 2004 with entry clearance as a working holidaymaker with leave valid until 29 October 2006. He overstayed. In 2008 he was found to be suffering from hypertension. On 5 January 2009 tests revealed kidney problems. In fact he has only one kidney; this is apparently a congenital condition. He has ESKD and has been on thrice-weekly dialysis since 2009. On 28 January 2009 he applied for leave to remain in the United Kingdom on account of his medical condition. That was refused by the Secretary of State on 12 March 2010. GS's appeal to the FTT was allowed on 14 June 2010, but the UT overturned that decision on 23 February 2011, holding that no violation of Articles 3 or 8 was established. GS appealed to this court with permission granted by Toulson LJ, as he then was. The case was remitted by consent to the UT on 6 February 2012. On 17 October 2012 the UT again upheld the Secretary of State's decision in a determination which dealt also with EO's case.
21. EO is a Ghanaian national born on 24 January 1970. He has a wife and son in Ghana. On 25 March 2005 he entered the UK on a short-term work permit valid until 1 April 2005 allowing him to work as a musician. Thereafter he overstayed his leave. In early 2006 he was diagnosed with ESKD and malignant hypertension. He has been on dialysis ever since.
22. EO was arrested under immigration powers on 1 March 2010. He claimed asylum on 15 April 2010. That was refused on 5 May 2010 by the Secretary of State who also declined to grant leave to remain on Article 3 and 8 grounds. On 17 June 2010 the FTT allowed his appeal under Article 3; the asylum claim played no separate part. By then EO had had access to the resources of the NHS for some five years using a false name.
23. On 2 December 2010 the UT set aside the FTT's determination and dismissed EO's appeal under Articles 3 and 8. However on appeal to this court the matter was remitted to the UT. The UT held that the FTT had erred in law in allowing the appeal, and directed a fresh hearing before a full panel of the UT. In the UT the case was joined with that of GS. On 17 October 2012 the UT again dismissed EO's appeal.
24. There has been an important development since. In October 2013 EO underwent a kidney transplant from a deceased donor. He attends the renal transplant clinic twice a month, and monitoring of his kidney function and of the effect of his prescribed drugs will be necessary into the future. The Secretary of State invites EO to submit a fresh Article 8 claim having regard to these developments.
25. KK is a national of the Democratic Republic of the Congo (DRC) born on 24 September 1968. He arrived in the UK on 2 June 1995 and claimed asylum. That was refused on reconsideration by the Secretary of State on 8 July 2002. However, KK was granted exceptional leave to remain until 8 July 2006. The month before, on 6 June 2006, he had applied for indefinite leave to remain. That was granted to him on 13 April 2007.
26. KK had been diagnosed HIV positive in 2005. He did not however comply with his prescribed medical regimen, and his condition proceeded to an advanced stage, with atypical mycobacterial infection. Details are given in a medical report by Dr Kyi dated 5 May 2011.
27. On 10 July 2010 KK applied to sponsor the entry of his wife to the United Kingdom. On 15 October 2010 that was refused on the ground that false documentation had been used to make the application. KK was prosecuted at the Sheffield Crown Court for possession of false identity documents in November 2009: documents which it seems he had intended to deploy to support his wife's application (which went ahead in July 2010 without their being used). He was also accused of offences of harassment and sexual assault which he had committed while on bail. On 16 December 2010, he was sentenced for all these matters to concurrent and consecutive terms of imprisonment amounting altogether to 20 months.
28. On 16 September 2011 the Secretary of State issued a notice of intention to deport KK pursuant to s.3(5)(a) of the Immigration Act 1971 (not, as the FTT mistakenly thought, under the automatic deportation provisions in the UK Borders Act 2007 relating to foreign criminals). The FTT dismissed his appeal on 10 November 2011. His appeal to the UT was in turn dismissed on 31 January 2013.
The Appellants' Prospects of Treatment
29. It is convenient at this point to collect the facts relating to the prospects for treatment of each appellant on the footing that he is to be returned to his country of origin.
30. In GM's case the FTT did not accept that appropriate medical care would not be available to him in India, nor that he and his family would be unable to meet the cost of it. As I have said the UT found no error of law by the FTT. These findings of course pre-dated the specific prospect that has now arisen of a kidney transplant from GM's friend Emmanuel Mugisha.
31. In PL's case the FTT found (paragraph 16) that access to dialysis in Jamaica is restricted, and that demand far outstrips supply. There was however a lack of evidence as to whether PL would actually obtain treatment: ``I am left with a likelihood that he will not be''. As I have said it was being anticipated by July 2014 that PL would be ``activated'' on the transplant waiting list within three months.
32. In BA the finding is that the appellant would not have access to dialysis in Ghana on grounds of cost. On return he would, or would be able to, live with his elderly mother. He would suffer a very early death. As was noted by the UT in January 2013 there is a strong similarity with the cases of GS and EO.
33. As I have indicated the UT dealt with the cases of GS and EO together on 17 October 2012. It recorded at paragraph 4 that in neither case were the facts in dispute. GS would not be able to obtain dialysis in India owing to its cost. He would die within one or two weeks of his return. EO is in like case. It was ``a certainty'' that he would be unable to meet the cost of treatment in Ghana. He would die within two or three weeks of his return.
34. In KK the UT conducted a full re-hearing on the merits and took oral evidence. In their determination of 31 January 2013 they stated (paragraph 85), ``we are satisfied that the appellant would have access to the treatment which he needs in DRC and that he could be supported by family there''. I should note that Mr Manjit Gill QC on his behalf has raised a challenge to factual findings made by the UT, and I will come to that.
35. This summary of the facts of each appeal suffices to introduce the issues we must decide, to which I will now turn. It will be necessary to revisit some factual areas in addressing counsel's submissions.
ARTICLES 3 & 8: THE PARADIGM CASES
36. There is some overlap between the arguments on Articles 3 and 8. The appellants' central contention on both Articles is that the consequences to their life expectancy - especially dire for those with ESKD, no transplant, and no or no real prospect of continued dialysis in their home State - are such that their removal or deportation would entail violations of both Articles by the United Kingdom. I will first make some general remarks about the paradigm case, or core instance, of each of the Articles.
37. As is well known Article 3 provides:
``No one shall be subjected to torture or to inhuman or degrading treatment or punishment.''
``1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.''
38. A foundational instrument such as the ECHR is bound to be cast in general terms. The reach of the value protected by the text is therefore unlikely to be ascertainable from the words alone; so the text's interpretation is not just a linguistic exercise, but also a normative one. The task is not, of course, open-ended. A principled assessment of the scope of Articles 3 and 8 may usefully start with Lord Bingham's exegesis in Brown v Stott  1 AC 681, 703, cited by Lord Hope at paragraph 22 of N v Secretary of State  2 AC 296,  UKHL 31:
``In interpreting the Convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed on the express terms of the Convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the Convention. The language of the Convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the Convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept. As an important constitutional instrument the Convention is to be seen as a `living tree capable of growth and expansion within its natural limits' (Edwards v Attorney General for Canada  AC 124, 136 per Lord Sankey LC), but those limits will often call for very careful consideration.''
In N Lord Hope himself said this at paragraph 21:
``The Convention, in keeping with so many other human rights instruments, is based on humanitarian principles. There is ample room, where the Convention allows, for the application of those principles. They may also be used to enlarge the scope of the Convention beyond its express terms. It is, of course, to be seen as a living instrument. But an enlargement of its scope in its application to one contracting state is an enlargement for them all. The question must always be whether the enlargement is one which the contracting parties would have accepted and agreed to be bound by.''
So the starting-point is the text, and any implication or enlargement requires a careful avoidance of the imposition of obligations beyond the actual or assumed scope of the States parties' agreement. But there is at once a difficulty, unacknowledged in these dicta. How is the ``living instrument'' approach to be reconciled with the court's duty to be loyal to the founders' agreement? The notion that the modern scope of ECHR rights may be resolved by asking whether the States parties might have consented to this or that outcome suggested by circumstances which were or might have been beyond contemplation when the text was agreed is surely problematic. I think the best one can do is to confine any implication or enlargement to situations which have some affinity with the paradigm case; situations which are, so to speak, within the spirit of the paradigm case, whose identification therefore assumes a considerable importance.
39. As regards Article 3 the Strasbourg court has repeated time without number that ``to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity''. But this formula is at too high a level of generality to provide, or even suggest, a paradigm. In my judgment the language of the Article shows that the paradigm case of a violation is an intentional act which constitutes torture or inhuman or degrading treatment or punishment. The paradigm of Article 8 is much more diffuse. Unlike Article 3, no single paradigm may be obtained from its language. The overall value which the Article protects may be said to be the quality of life. This idea has been expressed in different ways: Pretty v UK (2002) 35 EHRR 1, which I shall cite below, refers variously to personal integrity, autonomy and dignity. But these formulations, like the very idea of the quality of life, are again at far too high a level of abstraction to provide a paradigm. However the cases show, I think, that there are two linked paradigms. One is the capacity to form and enjoy relationships. The other is a right to privacy. Here, we are only concerned with the former.
40. These paradigms are well supported by the learning. Thus as regards Article 3, the Strasbourg court in Bensaid v UK (2001) 33 EHRR 205 said at paragraph 40:
``The Court accepts the seriousness of the applicant's medical condition. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. The case does not disclose the exceptional circumstances of D v the United Kingdom... where the applicant was in the final stages of a terminal illness, Aids, and had no prospect of medical care or family support on expulsion to St Kitts.'' (my emphasis)
41. In D v UK (1997) 24 EHRR 423 the Strasbourg court observed at paragraph 49:
``It is true that this principle [sc. the absolute nature of the Article 3 right, applicable `irrespective of the reprehensible nature of the conduct of the person in question' - paragraph 47] has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection...'' (my emphasis)
42. Next, in N v UK (2008) 47 EHRR 39 the Strasbourg court observed at paragraph 31:
``Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection...'' (my emphasis)
In the same case at paragraphs 42 - 45 the court set out the principles it had applied since the decision in D. The paradigm Article 3 case is acknowledged at paragraph 43:
43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. (my emphasis)
43. I shall have to return to both D and N in the Strasbourg court in addressing the scope of departures from the Article 3 paradigm.
44. As I have said, Article 8 has two linked paradigms: the capacity to form and enjoy relationships, and the right to privacy. We are not concerned with the latter (as to which there is a substantial body of case-law). As for the former, I will first cite Bensaid, in which the court said at paragraph 47:
```Private life' is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8... Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world... The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.'' (my emphasis)
Paragraph 61 in Pretty v UK (2002) 35 EHRR 1 is comparable:
``As the Court has had previous occasion to remark, the concept of `private life' is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person... It can sometimes embrace aspects of an individual's physical and social identity... Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world... Although no previous case has established as such any right to self-determination as being contained in Article 8 of the Convention, the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.'' (my emphasis)
The diffuse nature of the Article 8 paradigm is further emphasised by paragraph 65 in Pretty:
``The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance.''
45. These and other passages tell us that the core value protected by Article 8 is the quality of life, not its continuance. Life itself is protected by Article 2. And it requires no sophisticated philosophy to tell us that central to the quality of life is the capacity to form and enjoy relationships. Other elements referred to in these authorities, such as gender identification, name, sexual orientation, sexual life and mental health are self-evidently integral to that same capacity.
DEPARTURES FROM THE ARTICLE 3 PARADIGM
46. The case of a person whose life will be drastically shortened by the progress of natural disease if he is removed to his home State does not fall within the paradigm of Article 3. Cases such as those before the court can therefore only succeed under that Article to the extent that it falls to be enlarged beyond the paradigm. In response to humanitarian imperatives, the Strasbourg court and the House of Lords have accepted a degree of enlargement to Article 3. The starting-point for an examination of these departures is the D case.
D v UK (1997) 24 EHRR 423
47. The Secretary of State proposed to remove the applicant to St Kitts. He was a criminal involved with Class A drugs. But he suffered from AIDS and was close to death. In January 1996 his request to remain on compassionate grounds was refused. In June 1996, his life expectancy was stated to be in the region of eight to twelve months even if he continued to receive treatment in the United Kingdom. His health had since declined (judgment, paragraph 41).
48. I have already cited part of paragraph 49 in D, as authority for the Article 3 paradigm. In the same paragraph the court continued:
``Aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise. It is not therefore prevented from scrutinising an applicant's claim under Article 3 where the source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that Article...''
49. The court's conclusion in D is at paragraphs 51 - 54:
``51 The Court notes that the applicant is in the advanced stages of a terminal and incurable illness. At the date of the hearing, it was observed that there had been a marked decline in his condition and he had to be transferred to a hospital. His condition was giving rise to concern... The limited quality of life he now enjoys results from the availability of sophisticated treatment and medication in the United Kingdom and the care and kindness administered by a charitable organisation. He has been counselled on how to approach death and has formed bonds with his carers...
52 The abrupt withdrawal of these facilities will entail the most dramatic consequences for him. It is not disputed that his removal will hasten his death. There is a serious danger that the conditions of adversity which await him in St Kitts will further reduce his already limited life expectancy and subject him to acute mental and physical suffering. Any medical treatment which he might hope to receive there could not contend with the infections which he may possibly contract on account of his lack of shelter and of a proper diet as well as exposure to the health and sanitation problems which beset the population of St Kitts... While he may have a cousin in St Kitts..., no evidence has been adduced to show whether this person would be willing or in a position to attend to the needs of a terminally ill man. There is no evidence of any other form of moral or social support. Nor has it been shown whether the applicant would be guaranteed a bed in either of the hospitals on the island which, according to the Government, care for AIDS patients...
53 In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant's fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3.
The Court also notes in this respect that the respondent State has assumed responsibility for treating the applicant's condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. Without calling into question the good faith of the undertaking given to the Court by the Government..., it is to be noted that the above considerations must be seen as wider in scope than the question whether or not the applicant is fit to travel back to St Kitts.
54 Against this background the Court emphasises that aliens who have served their prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3.''
50. Is the exception to the Article 3 paradigm vouched by the D case limited to a state of affairs in which the applicant is, in effect, on his deathbed whether or not he is removed from the host State? I have already set out paragraph 43 from N v UK in Strasbourg. However this is only part of the court's overall reasoning at paragraphs 42 - 45, all of which repays attention for a proper understanding of the D exception:
``42. In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles.
Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances 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.
43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D v the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.
44. Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights... While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.
45. Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost.''
51. The principles there described need to be considered alongside the earlier decision of the House of Lords in the same case: N v Secretary of State  2 AC 296,  UKHL 31. Counsel are (plainly rightly) agreed that this court is bound by the House of Lords' judgment on the scope of the D exception. I shall come to the speeches of their Lordships, but should at this stage make it clear that in my judgment there is no tension, let alone inconsistency, between the approach of the House and the approach of the Strasbourg court. However I should note that paragraphs 42 - 45 in N constitute the views of the majority of the court; Judges Tulkens, Bonello and Spielmann delivered a joint dissenting opinion. The difference of view was later the subject of comment by the court in Mwanje v Belgium (2013) 56 EHRR 35. A Joint Partially Concurring Opinion of six judges (including Judge Tulkens) at paragraph OI-5 in Mwanje considered themselves to be bound ``for the purposes of legal certainty, to follow the approach of the Grand Chamber in the case of N v United Kingdom''. But they continued at paragraph OI-6:
``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.''
52. No doubt it is not for us to pass upon the view of judges of the Strasbourg court as to the approach to be taken in principle to the scope of Article 3, not least in a case in which the United Kingdom was not the respondent. But I may perhaps be allowed to observe, with respect, that the gravity of what may befall an Article 3 claimant is not the only test of his claim. It has to be shown that the impugned State should be held responsible for his plight. As regards that, the nature of the paradigm case and the scope of its proper exceptions are surely critical. But in any case these judicial reservations in relation to the case of N cannot qualify our duty to follow the decision of the House of Lords in the same case.
53. Before I come to N v Secretary of State I should however note the submission of Miss Lieven QC for GS and EO that the scope of exceptional circumstances is fact-sensitive, and the case of N has to be regarded in the light (or perhaps the shadow) of other Article 3 cases in Strasbourg, notably MSS v Belgium & Greece (2011) 53 EHRR 2 and Sufi & Elmi v UK (2012) 54 EHRR 9. It is convenient at this stage to look at these decisions, and briefly at two others.
MSS v Belgium & Greece (2011) 53 EHRR 2, Sufi & Elmi v UK (2012) 54 EHRR 9, SHH v UK (2013) 57 EHRR 18 and Tarakhel v Switzerland (Application No. 29217/12)
54. In MSS the applicant was an Afghani asylum-seeker whom the Belgian authorities desired to return to Greece under the Dublin Convention. He had been detained for a week in Greece before arriving in Belgium. At length he was returned from Belgium to Greece where he claimed asylum. There was much evidence before the Strasbourg court of the extremely deleterious conditions in which asylum-seekers in Greece might be detained or had to live. The court concluded as follows:
``249. The Court has already reiterated the general principles found in the case-law on Article 3 of the Convention and applicable in the instant case (see paragraphs 216-222 above). It also considers it necessary to point out that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home... Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living...
250. The Court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms... [T]he obligation to provide accommodation and decent material conditions to impoverished asylum seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the Member States (`the Reception Directive'...). What the applicant holds against the Greek authorities in this case is that, because of their deliberate actions or omissions, it has been impossible in practice for him to avail himself of these rights and provide for his essential needs.?
251. The Court attaches considerable importance to the applicant's status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection... It notes the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive.
252. That said, the Court must determine whether a situation of extreme material poverty can raise an issue under Article 3.?
253. The Court reiterates that it has not excluded `the possibility that the responsibility of the State may be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity'...
254. It observes that the situation in which the applicant has found himself is particularly serious. He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving. It was to escape from that situation of insecurity and of material and psychological want that he tried several times to leave Greece.
263. In the light of the above and in view of the obligations incumbent on the Greek authorities under the European Reception Directive..., the Court considers that the Greek authorities have not had due regard to the applicant's vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.''
55. I will consider in due course what is to be drawn from this case. I turn next to Sufi & Elmi.
56. The applicants in that case were Somalian nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them to Somalia. The Strasbourg court said this at paragraph 279:
``279. In the recent case of MSS v Belgium and Greece... the Court stated that it had not excluded the possibility that the responsibility of the State under Article 3 might be engaged in respect of treatment where an applicant, who was wholly dependent on State support, found himself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity (paragraph 253).''
The court proceeded to summarise paragraphs 254 and 264 of MSS, and observed that at paragraph 367 in MSS Belgium was found to be in breach of Article 3: ``by transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment''. The court continued at paragraph 280 of Sufi & Elmi:
``280. In the present case the Government submitted, albeit prior to the publication of the Court's decision in MSS v Belgium and Greece, that the appropriate test for assessing whether dire humanitarian conditions reached the Article 3 threshold was that set out in N v the United Kingdom. Humanitarian conditions would therefore only reach the Article 3 threshold in very exceptional cases where the grounds against removal were `compelling'.
?281. The Court recalls that N v the United Kingdom concerned the removal of an HIV-positive applicant to Uganda, where her lifespan was likely to be reduced on account of the fact that the treatment facilities there were inferior to those available in the United Kingdom. In reaching its conclusions, the Court noted that the alleged future harm would emanate not from the intentional acts or omission of public authorities or non-State bodies but from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. The Court therefore relied on the fact that neither the applicant's illness nor the inferior medical facilities were caused by any act or omission of the receiving State or of any non-State actors within the receiving State. ?
282. If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State's lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N v the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population... This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab's refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis are living in a situation of serious deprivation...
283. Consequently, the Court does not consider the approach adopted in N v the United Kingdom to be appropriate in the circumstances of the present case. Rather, it prefers the approach adopted in MSS v Belgium and Greece, which requires it to have regard to an applicant's ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame (see MSS v Belgium and Greece, cited above, paragraph 254).''
57. There appears to be a fork in the road, on the court's own reckoning, between the approach in N v UK on the one hand and MSS on the other. It is on the face of it difficult to find any governing principle, applied across the learning, which provides a rationale for departures from the Article 3 paradigm. There are, however, certain strands of reasoning. In MSS it is to be noted that Greece (unlike Belgium) was not impugned for breach of Article 3 on account of anything that would happen to the applicant in a third country to which Greece proposed to remove him, but by reason of his plight in Greece itself. One may compare the case of Limbuela  1 AC 396, in which the House of Lords was concerned with the dire straits to which certain asylum-seekers in this country were reduced for want of access to public funds, and held that there was a violation of Article 3. In MSS a critical factor was the existence of legal duties owed by Greece under its own law implementing EU obligations: paragraphs 250 and 263 which I have cited; and it is clear that the court attached particular importance to the fact that the applicant was an asylum-seeker.
58. In Sufi & Elmi the court avowedly followed MSS (paragraph 283). In this case the critical factor was that the ``crisis is predominantly due to the direct and indirect actions of the parties to the conflict'': paragraph 282. This is closer to the paradigm than the ill-treatment in question in MSS, for it must have involved deliberate acts.
59. Thus in MSS and Sufi & Elmi the court looked for particular features which might bring the case within Article 3, and found them - in Greece's legal duties and the applicant's status as an asylum-seeker, and in the nature of the crisis in Somalia.
60. One may contrast the case of SHH v UK (2013) 57 EHRR 18, in which a severely disabled Afghani claimed that he would face a real risk of ill-treatment if he were returned to Afghanistan. The court referred both to MSS and Sufi & Elmi (see paragraphs 76 and 77) but followed neither; it held that the correct approach was that set out in N:
``92. The Court therefore considers that, in the circumstances of the present case where the problems facing the applicant would be largely as a result of inadequate social provisions through a want of resources, the approach adopted by the Court in N v the United Kingdom, cited above, is more appropriate. The Court will therefore need to determine whether or not the applicant's case is a very exceptional one where the humanitarian grounds against removal are compelling.''
Applying N, the court held (paragraph 95) that no sufficiently exceptional circumstances were shown.
61. In Tarakhel v Switzerland (Application No. 29217/12) the applicants, who were Afghani asylum-seekers, claimed that if they were returned to Italy (which had accepted, or was taken to have accepted, responsibility for deciding their asylum claims) they would be liable to be subjected to inhuman and degrading treatment linked to the existence of ``systemic deficiencies'' in the reception arrangements for asylum-seekers in that country. The court at paragraph 101 ``[considered] it necessary to follow an approach similar to that which it adopted in the MSS judgment'', and concluded (paragraph 122) ``that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention''. The case shows the importance attached by the court to the treatment of asylum-seekers: paragraphs 93, 97, 99, 102-104.
62. This learning shows that there may be departures from the Article 3 paradigm other than of the kind vouchsafed in D v UK. These departures are variously justified. But such an approach is indicated in D itself, at paragraph 49, and in N at paragraph 43. I have already cited both passages:
``49... [G]iven the fundamental importance of Article 3 in the Convention system, the Court must reserve to itself sufficient flexibility to address the application of [Article 3] in other contexts which might arise.''
``43. The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling.''
In my judgment it is clear that the departures from the Article 3 paradigm given in MSS and the other cases to which I have referred do not extend the reach of the departure allowed in D and discussed at paragraphs 42 - 45 of N v UK. The plight of an individual whose life expectancy may be severely shortened by his removal or deportation to his home State is a distinct state of affairs whose treatment under the Convention is not qualified by the court's approach, for example, to the reception conditions for asylum-seekers. The circumstances in which a departure from the Article 3 paradigm is justified are variable; the common factor is that there exist very pressing reasons to hold the impugned State responsible for the claimant's plight. But the fact that there are other exceptions unlike D or N does not touch cases - such as these - where the claimant's appeal is to the very considerations which D and N address.
63. Accordingly, in my judgment, the Strasbourg jurisprudence in cases such as MSS and Sufi & Elmi casts no significant light on the approach to be taken by this court to the binding authority of N v Secretary of State in the House of Lords, to which I now turn.
N v Secretary of State  2 AC 296,  UKHL 31
64. Like D, the appellant suffered from AIDS. She was a Ugandan woman whom the Secretary of State proposed to return following the failure of her asylum claim. She had received specialist medical care in this country over a prolonged period. Lord Nicholls of Birkenhead noted (at paragraph 3 of his speech):
``Her condition is stable. Her doctors say that if she continues to have access to the drugs and medical facilities available in the United Kingdom she should remain well for `decades'. But without these drugs and facilities her prognosis is `appalling': she will suffer ill-health, discomfort, pain and death within a year or two.''
But her chances of receiving the necessary medical care in Uganda were ``problematic''. If she could not obtain it, her situation would be ``similar to having a life-support machine switched off'' (paragraph 4). The question was whether her expulsion to Uganda would violate her Article 3 right. It was held that it would not.
65. With deference to the arguments advanced by counsel for the appellants it seems to me that the ratio decidendi of N in the House of Lords is entirely plain. I give the following citations:
``15. Is there, then, some other rationale [sc. other than the pressing nature of the humanitiarian claim] underlying the decisions in the many immigration cases where the Strasbourg court has distinguished D's case? I believe there is. The essential distinction is not...
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