ZT v Secretary of State for the Home Department [2005] EWCA Civ 1421

[2005] EWCA Civ 1421Case No C4/2004/1920
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION TRIBUNAL
HR/41670/2003
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 24 November 2005
Before
LORD JUSTICE BUXTONLORD JUSTICE SEDLEYLORD JUSTICE JONATHAN PARKER
Between
ZTAppellantThe Secretary of State for the Home DepartmentRespondent
Mr Nicholas Blake QC and Mr Femi Omere (instructed by Ms S Hellier, Terrence Higgins Trust) for AppellantMs Lisa Giovanetti (instructed by The Treasury Solicitor) for RespondentHearing Hearing dates : 3 and 4 November 2005
JudgmentLord Justice Buxton :Facts and background
[1]Ms ZT, a citizen of Zimbabwe, arrived in this country in July 2000, and was given leave to enter as a visitor for a period of 6 months. Fairly shortly thereafter she was diagnosed as being HIV-positive, and started a course of anti-retroviral treatment, which has succeeded in controlling the disease. In February 2001 she sought permission to remain on the basis that to return her to Zimbabwe, where treatment for her very serious illness would be difficult or impossible to obtain, would infringe her rights under the European Convention on Human Rights. She did not then, or subsequently, make any claim under the refugee Convention. The Secretary of State refused that application in January 2003, but in October 2003 an adjudicator allowed an appeal against that decision. The Secretary of State appealed against the adjudicator’s decision, and that appeal was allowed by the Immigration Appeal Tribunal [IAT] in July 2004. This court gave Ms ZT permission to appeal in October 2004. The appeal has been heard only now, sixteen months after the IAT’s decision, and nearly five years after Ms ZT’s original application, because the appeal was stayed pending the decision of the House of Lords in N, speeches in which case were delivered in May 2005.[2]There is no doubt that Ms ZT was very ill indeed when admitted to hospital in 2001, suffering from a seriously damaged immune system, and from opportunistic infections including both pneumonia and tuberculosis. Without treatment, she was estimated to have some three to six months to live. That treatment has restored her condition and her immune system to stability. If it is withdrawn, as is the practical likelihood if she is returned to Zimbabwe, it is unlikely that she will survive for more than a year or two, during that time being burdened with serious illness. Her case thus raises yet again the acute dilemmas posed by persons with no right to remain in this country who however face illness and death if they are expelled.

The proceedings

[3]Before the Adjudicator, Ms ZT’s case was advanced under article 3, no case being made either in her original human rights claim or in her grounds of appeal to the Adjudicator under article 8. The Adjudicator dealt with the matter as expressed in her paragraphs 11-12:
“In summary, first, anyone wanting to access ARVs [anti-retroviral drugs] or treatment for Ols [opportunistic infections] in Zimbabwe has to find the money to pay for it. Medical aid schemes do not cover the cost. Secondly, tests for viral load and CD4 are not available in every public medical facility and are only available if paid for. The cost would be in the region of US$ 400 per annum. Thirdly treatment cost per month (to include medication, clinical supervision and tests) would be in the region of a minimum of US$ 1500 per month. Fourthly, even supposing the appellant could find a job on return (doubtful as the unemployment rate is high owing to the adverse economic and political climate in Zimbabwe) her rapid decline into ill health would render it difficult for her to work and she would be destitute. She would not be able to afford to pay for treatment herself (and her family clearly cannot) – let alone contribute to any household that might take her in. She would need care soon after return from the UK, as withdrawal of treatment would result in acute recurrence of the illness. Supplies of medicine for Ols are just not available even in the private sector. Even if medicines are available the supply is likely to be disrupted owing to sanctions, absence of aid and limited foreign exchange. ARVs are unlikely to be of priority. Priority is given to food imports and or goods and services demanded by politically sensitive groups. Fifthy, HIV/AIDS sufferers are subject to stigma, discrimination and isolation. This is a serious and continuing problem and may even affect the way people are treated in hospital. Sixthly, were the appellant to be removed to Zimbabwe she would have to cease ARV as she does not possess the resources to cover the cost of treatment. She would experience acute mental and physical suffering as a result of withdrawal of treatment and good specialist support networks. Professor Barnett is in no doubt that to return her to Zimbabwe would be to reduce her life expectancy and expose her to acute physical and mental suffering. [12.] Clearly the level of suffering would reach the high threshold necessary to engage Article 3 and I find that it would be breached if she were to be removed to Zimbabwe.”
[4]The Secretary of State appealed to the IAT against that conclusion in terms that are controversial and to which I shall have to return. The IAT allowed the appeal. In relation to article 3 it directed itself according to the then ruling authority, the decisions of this court in N and in K v SSHD [2001] Imm AR 11, and set out a substantial part of the then current CIPU report on Zimbabwe, which had been before the Adjudicator but was not referred to in her determination. The IAT then concluded in its paragraphs 22-23:
“On the basis of these authorities, we are satisfied that the claimant’s removal from United Kingdom would not be in breach of her rights under Article 3. [Counsel] sought to persuade us that the claimant’s case was an exceptional one. Indeed, he argued at one point during his submissions that it was a unique one. With respect to him, both those submissions are plainly unsustainable. Sadly, as disclosed by paragraph 6.249 of the CIPU Report in the terms set out above, the claimant’s situation is far from exceptional. It is certainly not unique. On the contrary, it is estimated that one-third of the adult population of Zimbabwe is now infected with HIV and/or AIDS. [23] Whilst the situation which would face the claimant on return to Zimbabwe is undoubtedly a grim and distressing one, it is not one which is exceptional, or which reaches the high threshold required to constitute a breach of Article 3. In arriving at her conclusion to the contrary, the adjudicator fell into error. Her conclusion to the contrary cannot be allowed to stand.”
[5]The Secretary of State’s grounds of appeal to the IAT also, and presumably for good measure, criticised the Adjudicator for not making any findings in relation to article 8, and indicated what those findings should have been. Whether that was a necessary, or even a relevant, plea must be in doubt, in view of the failure to rely on article 8 when launching the proceedings. But, the matter having been raised, the IAT was right to address it. In the appeal to this court, we were told that Ms ZT’s case is now based principally on article 8, so for future reference we set out the IAT’s findings, in paragraphs 24-29 of their determination:
“As confirmed by the recent judgment of the House of Lords in R v Secretary of State for the Home Department, ex parte Razgar [2004] UKHL 27, it has now been established that in principle, the removal of an individual in the claimant’s position can amount to a breach of Article 8 by reason of the foreseeable consequences of removal on the health of the individual concerned. This is confirmed in the speech of Lord Bingham of Cornhill at paragraph 10 in the following terms: “I would answer the question of principle in paragraph 1 above by holding that the rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied on by the applicant are sufficiently strong. In so answering I make no reference to “welfare”, a matter to which no argument was directed. It would seem plain that, as with medical treatment so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state” “I would answer the question of principle in paragraph 1 above by holding that the rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied on by the applicant are sufficiently strong. In so answering I make no reference to “welfare”, a matter to which no argument was directed. It would seem plain that, as with medical treatment so with welfare, an applicant could never hope to resist an expulsion decision without showing something very much more extreme than relative disadvantage as compared with the expelling state”
[25]However, as stated by Lord Bingham at paragraph 20 of the same speech: “Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis”.[26]The same point is to be found elsewhere in the speeches of the other Lords of Appeal in Razgar. By way of example, Lord Carswell stated at paragraph 72: “For the reasons given by your Lordships in the appeals of R (Ullah) v Special Adjudicator and Do v Secretary of State for the Home Department [2004] UKHL 26, it must now be accepted that in principle article 8 could exceptionally be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even though they do not amount to a violation of article 3. In order to bring himself within such an exceptional engagement of article 8 the applicant has to establish a very grave state of affairs, amounting to a flagrant or fundamental breach of the article, which in effect constitutes a complete denial of his rights”.[27]In light of the guidance to be derived from the decision of the House of Lords in Razgar, we are satisfied that the claimant’s case does not fall within the “small minority of exceptional cases” contemplated by Lord Bingham in the extractfrom his speech set out above. On the contrary, her situation is sadly all too common a one, both in Zimbabwe and elsewhere in those parts of the world afflicted by widespread HIV-infection and AIDS.[28]Likewise, whilst the availability of medical treatment for HIV and AIDS in Zimbabwe is not comparable to that to be found in the United Kingdom, and is certainly not available free of charge to patients in the same way as it is in the United Kingdom, nevertheless as disclosed by the CIPU Report, medical treatment is available in Zimbabwe, at least to some extent. It could not therefore properly be said that the claimant would on return face a “flagrant or fundamental breach” of her rights under Article 8 amounting to a “complete denial” of those rights. 29. For these reasons, we are satisfied that the claimant’s removal from the United Kingdom would not amount to a disproportionate interference with her rights under Article 8 of the Human Rights Convention.” 6. Before this court, Mr Blake QC said that there were three separate grounds of complaint: i) The Secretary of State’s grounds of appeal to the IAT disclosed no allegation of an error of law. The IAT accordingly did not have jurisdiction to consider the appeal. ii) The IAT erred in its determination in relation to article 3 iii) The IAT erred in its determination in relation to article 8. I will consider those complaints in turn.

The jurisdiction of the IAT

[7]The Adjudicator’s determination was promulgated on 2 October 2003, accordingly several months after there had come into force section 101(1) of the Nationality, Immigration and Asylum Act 2002, which limited appeals against such determinations to points of law; but many months before that limitation was effectively understood by those practising in this field, when the decision of this court in CA v SSHD [2004] EWCA Civ 1165 was handed down on 20 July 2004, and reported in The Times on 3 August 2004.[8]In paragraph 24 of its decision in Miftari [2005] EWCA Civ 481, applied by this court in R(Iran) [2005] EWCA Civ 982 [55]-[58], this court held that the effect of section 101(1) of the 2002 Act was that the IAT only had jurisdiction to consider an appeal if a point of law could be found within the formulated grounds. Mr Blake said that the grounds in this case revealed no point of law, and certainly not the point of law on which the IAT decided the article 3 case, that the Adjudicator had applied too low a threshold for the application of article 3 to the instant facts. The nearest, he said, that the grounds approached to that task was in their paragraphs 2 and 3, which read:
“The adjudicator failed to adequately consider the objective information in making his determination – Karanakaran [2000] Imm AR 271. For example, reliance is placed on the relevant evidence in the April 2003 CIPU (before the adjudicator – see paragraph 7 – but not considered in her findings – paragraphs 10 and 11) paragraphs 6.162-6.167 which state that treatment for HIV/AIDS is available in Zimbabwe at a cost to the individual. Reliance is also placed upon the Tribunal determination in Tawengwa [2002] UKIAT05597 (which was before the adjudicator in the respondent’s bundle, annex L, but not applied by her) which accepts, amongst other aspects, that treatment for HIV/AIDS is available in Zimbabwe. Had the adjudicator considered Tawenga, she would not have relied on the reasons she cites in paragraph 11. The adjudicator failed to apply the Court of Appeal judgment of K [2001] Imm AR 11 tothis case (particularly in relation to the reasons cited in paragraph 11). In K, it was found that the fact the appellant could not afford the available treatment would not breach Article 3, and that a breach could only be established should there be a complete absence of medical treatment. Therefore, due to ground 2 above, the Secretary of State’s position is that, having regard to the high threshold, Article 3 would not be breached in this case. The reasons relied on by the adjudicator are unsustainable.”
Paragraph 3, especially bearing in mind its reference back to the factual matters discussed in paragraph 2, was complaining about the Adjudicator’s analysis of the facts, and the failure on her part to realise, following K, that only a complete absence of medical treatment in the receiving state could found a breach of article 3: a proposition that Mr Blake said was unsustainable in any event. The “high threshold” of article 3 was assumed by the grounds, and it was not suggested that the Adjudicator had formulated that threshold incorrectly.[9]No complaint about the grounds or about the IAT’s jurisdiction was raised before the IAT, or in the grounds of appeal to this court. In granting permission to appeal this court suggested that the relevance of CA to this case should be considered, but that did not lead to any amendment of the grounds, and to only one sentence, not further expanded on, in the skeleton argument in this court. That has not assisted this court in determining this question, but since the issue is one of jurisdiction its past handling cannot prevent it from being raised now.[10]If the grounds to the IAT had been drafted after the limitations of the IAT’s jurisdiction had been stressed in CA, and after the importance of the form of the grounds had been stressed in Miftari and other cases, then I do not doubt that they would have taken a more focussed and limited form. This court has, however, also stressed that it will be reluctant to see a case fail purely on an issue of jurisdiction (and in the absence, as here, of any claim that anyone has been in the slightest degree misled), if it is possible on a fair reading to extract a point of law from the grounds. Here, it is in my view fairly clear that the grounds did raise, albeit amongst many other things, the point that the IAT extracted from them and on which it decided the case, that the Adjudicator had not respected the high threshold for relief that article 3 imposes. The terms in which the IAT expressed its conclusion, as set out in paragraph 4 above, were not the same as those adopted in the grounds; but that was because the IAT had the benefit, as the draftsman of the grounds did not, of the decision of this court in N [2004] 1 WLR 1182, in which the formulation of the article 3 requirement in a “health” case in terms of exceptional or extreme circumstances was clearly adopted for the first time.[11]The preliminary objection in terms of want of jurisdiction of the IAT therefore fails.

Article 3

[12]Mr Blake recognised that he was constrained, as is this court, by the decision of the House of Lords in N [2005] 2 AC 296, analysing the Strasbourg jurisprudence and in particular D v United Kingdom 24 EHRR 423. Their Lordships addressed the question in somewhat differing language, but to the same general effect, which can perhaps be best represented by the guidance given by Baroness Hale of Richmond in her paragraphs 69-70:
“the test, in this sort of case, is whether the applicant’s illness has reached such a critical stage (ie he is dying) that it would be inhuman treatment to deprive him of the care which he is currently receiving and to send him home to an early death unless there is care available there to enable him to meet that fate with dignity. This is to the same effect as the test proposed by my noble and learned friend, Lord Hope of Craighead. It sums up the facts in D. It is not met on the facts of this case. [70] There may, of course, be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling. The law must be sufficiently flexible to accommodate them”
There is, of course, an element of paradox about that formulation. Like Ms N and other HIV sufferers in her situation, Ms ZT is not dying; but that is only because she is in receipt of treatment that in realistic terms will cease once she is sent back to Zimbabwe. Such an approach is however necessary to implement the acceptance by the Strasbourg court that, as Lord Nicholls of Birkenhead put it in paragraph 15 of his judgment in N:
“article 3 does not require contracting states to undertake the obligation of providing aliens indefinitely with medical treatment lacking in their home countries. In D and in later cases the Strasbourg court has constantly reiterated that in principle aliens subject to expulsion cannot claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social and other forms of assistance provided by the expelling state.”
[13]Mr Blake said that there were two respects in which Ms ZT’s case fell outside the very restrictive regime laid down by N; and one respect in which the IAT had in any event wrongly applied N. Before addressing the ways in which N is sought to be distinguished I am bound to make two observations. First, Mr Blake did not make much headway in persuading at least me that either point had been taken before the IAT. Second, and in any event, it is very difficult to see how a failure to adopt or to be swayed by either of the points relied on by Mr Blake could amount to an error of law on the part of the IAT. The test of exceptionality that N sets out makes it a matter for the judgement of the tribunal, once it has correctly directed itself as to the requisite standard, to decide whether the requirements of the test are met. Failure to accept that a case was exceptional could hardly amount to an error of law unless at least the tribunal had rejected a plain, obvious and uncontroversial issue that took the case out of the N limitations.[14]Mr Blake’s first ground of distinction between this case and the previous jurisprudence was that whereas in N it was accepted that the receiving country, Uganda, was making proper efforts to counter an impossibly difficult situation, in the present case the difficulties in Zimbabwe had been significantly contributed to by the policy of the government itself, in particular in its malevolent attitude, discriminatory practices in the application of health care, and systematic violations of humanitarian and human rights laws. It was argued, by analogy with the decision of the European Court of Human Rights in Soering 11 EHRR 439, that a separate category of liability under article 3 arose where the lack of health care of which the applicant complained was directly the fault of the receiving state.[15]This point of law, as it appeared to be, was not raised in the lengthy grounds of appeal to this court, which extended to some three and half thousand words. The facts alleged in support of this ground are there set out, but as part of a discursive account of conditions in Zimbabwe generally and not as a discrete issue. Soering was never mentioned, let alone its relevance to the appeal explained. Nonetheless, in deference to the position in which Ms ZT finds herself, we permitted the point to be taken.[16]The argument, as a point of law, is misconceived. Soering came nowhere near to laying down any special rule about the behaviour of the receiving state, within the ambit of the single rule of article 3 in terms of inhuman and degrading treatment. What the Strasbourg court did hold, in its paragraphs 104-111, was that if there was a prospect of the “death row phenomenon” being unduly extended in a particular case, then it would be a breach of the basic rule of article 3 to return the prisoner to suffer that fate. The prisoner’s suffering would, indeed, be caused by the laws and procedures of the receiving state, but that was simply a matter of the factual history creating the condition that the sending state must avoid, and not the reason why article 3 was held to have been breached. Article 3 was breached in that case because, applying the general regime of article 3, a defined and plainly unjustified state of suffering awaited the returned prisoner. But in the particular factual category of health cases, N lays down the rules as to how article 3 should be applied. Those rules include a specific requirement of exceptional circumstances. They do not include a special sub-category, turning on the behaviour of the receiving state, that takes the case outside the normal article 3 regime.[17]If, as I consider plain, there is no special rule of law relating to the behaviour of the receiving state, then the weight that the tribunal gives to that behaviour must be a matter for the judgement of the tribunal applying the guidance in N. Nothing was put before the IAT that suggested that a detailed examination of the behaviour of the Zimbabwe government was required of it.[18]That said, I can envisage a case in which the particular treatment afforded to an AIDS sufferer on return, in terms of ostracism, humiliation, or deprivation of basic rights that was added to her existing medical difficulties, could create an exceptional case in terms of the guidance given by Baroness Hale of Richmond, cited in paragraph 12 above. That would, in the first instance, be a matter for the Secretary of State. In the present case the evidence before the IAT came nowhere near to supporting such a contention; indeed, the IAT adopted evidence from the then current CIPU report which, although making very grim reading, did not paint a picture as alarming as that contended for by the appellants in late 2005. I revert to this aspect of the case at the end of this judgment.[19]Mr Blake’s second distinction from N in connexion with article 3, which was also deployed in relation to article 8, was that Ms ZT had only contracted, or at least had only presented with, HIV after she had arrived in this country and been given temporary leave to enter as a visitor. That contrasted with Ms N, who was already HIV positive on arrival in the UK and was thought to have come here in order to obtain medical treatment; though it should in fairness to Ms N be pointed out that there was a specific finding that she was unaware of her HIV status when she arrived in England. Mr Blake urged the relevance in the present case of the observation of Lord Nicholls in paragraph 16 of N, where having formulated the principle set out in paragraph 12 above he continued:
“I express the obligation in terms of provision of medical care because that is what cases of this type are all about. The appellant, and others in her position, seek admission to this country for the purpose of obtaining the advantages of medical care readily available to all who are here. What the appellant seeks in this case is the right to remain here so that she may continue to receive this medical treatment”
[20]That observation has to be put in context. The issue, as Lord Nicholls made clear both in his paragraph 15 and in his paragraph 16, is whether a person otherwise not entitled to remain in this country should be permitted to remain here in order to obtain medical treatment. In that respect, Ms ZT is in exactly the same position as was Ms N. Ms ZT never had any right to be in this country, and absent the present proceedings any permissive presence here would have been terminated nearly five years ago. Lord Nicholls made no distinction, nor could he have done, based on the respective circumstances of the original arrival in the United Kingdom.[21]There is therefore no point of law compelling a distinction between this case and N. And a tribunal would only dubiously be entitled, and certainly is not compelled, to recognise such a distinction when exercising its judgement under the jurisprudence of N.[22]Thirdly Mr Blake contended, not as an underlying point of law, but in criticism of the approach of the IAT, that in considering exceptionality in its paragraph 22 (set out in paragraph 4 above) a comparison had been made between the situation of Ms ZT and that of the total population of Zimbabwe. That, he submitted, was simply incorrect. The comparison should have been between her situation and that of other HIV sufferers, scil. in the United Kingdom rather than in Zimbabwe.[23]I cannot accept that criticism. First, it is only fair to the IAT to remind ourselves that they were at least in part addressing an exorbitant submission on behalf of Ms ZT that her case was unique. The unreality of that contention was demonstrated by the very large numbers suffering from HIV in Zimbabwe. Second, Ms ZT’s fears are not as to her position in the United Kingdom, but as to her situation were she to return to Zimbabwe. Once she had failed to demonstrate any significant difference between the position in Zimbabwe and that in other countries, then it was relevant to consider whether she would be in a different position from other AIDS sufferers in Zimbabwe. No attempt was made to demonstrate such a difference to the IAT, as they were correct to record.[24]I therefore conclude that the attack on the IAT’s findings as to article 3 must fail.

Article 8

[25]I have described in paragraph 5 above how the article 8 issue came before the IAT. It was not then the main focus of Ms ZT’s case, and it is not surprising that the IAT dealt with the issue somewhat briefly, and that a full range of argument was not deployed before it. In what follows I have, again out of respect for Ms ZT’s position, sought to address everything that was contended before us, however little some of those contentions can be found in the previous material.[26]Before embarking on that enquiry, it is necessary to identify the relevant state of the facts. In paragraphs 69-71 of its decision in R(Iran) [2005] EWCA Civ 982 this court held that, despite the alteration in the vires of the IAT effected by section 101(1) of the 2002 Act (see paragraph 8 above), the IAT had nonetheless retained its former power to enter upon the facts of the case once it had identified an error of law on the part of the Adjudicator. That is what the IAT did in this case, by its adoption of extracts from the CIPU report. Mr Blake said that they had not thereby held that the Adjudicator’s own statement of the facts, set out in paragraph 3 above, had been wrong. At most, it had been supplemented by the IAT. I agree with that analysis; but the position must then at the Adjudicator’s findings cannot simply be accepted on their own, but must be read in the context of the IAT’s subsequent review of the whole case.[27]Against that background, I will set out what I understand to be the steps in Mr Blake’s argument: i) Adopting a taxonomy drawn from the speech of Lord Bingham in Ullah [2004] 2 AC 323, the present was a “domestic”, not a “foreign” , case: that is, the complaint was as to Ms ZT’s removal from the family support and medical care that she enjoyed in the United Kingdom, rather than as to the treatment that she was to receive when she arrived in Zimbabwe. ii) That distinction was important, because in its paragraph 28 (set out in paragraph 5 above) the IAT had determined the case on the basis that Ms ZT did not face a “flagrant or fundamental” breach of her article 8 rights. That, said Mr Blake, was the appropriate test in a foreign case, but was not appropriate in a domestic case, where the proper test was that of proportionality. iii) When applying proportionality, the guiding principle was that referred to in paragraph 60 of the decision of this court in Huang [2005] HLR 15, where it was stressed that decisions in accordance with Immigration Rules will ordinarily be taken to be proportionate. The present case was the obverse of that assumption, in that the Immigration Rule current at the time of the Secretary of State’s decision indicated that permission to remain should have been granted. iv) So far as the health aspects of the case were concerned, dicta in Razgar [2004] 2 AC 368 indicated that cases could arise that entailed a breach of article 8 even if they did not qualify under article 3. Mr Blake said that the present should have been recognised as such a case. There is a good deal of overlap between these contentions, which I will therefore address as a single argument.[28]First, the distinction between foreign and domestic cases is adopted not as a matter of categorisation, but simply for ease of exposition. It has never been suggested that different rules of law apply as between the two types of case; nor could it be, since they are both subject to the same rule of article 8. And the facts of the present or of any other health case support that view. It really is a matter of choice, such as would be unlikely to generate a difference in the applicable legal rule, whether Ms ZT is described as complaining of removal from health care in the United Kingdom, which is how her case is now put; or as complaining of the state of health care in Zimbabwe, which I am bound to say had been the focus of her case before she arrived in this court.[29]The alleged contradiction between “flagrancy” and proportionality can be explained in this way. In a very well-known passage in Razgar Lord Bingham, at paragraph 17, gave guidance as to the proper approach to expulsion cases. He said:
“In a case where removal is resisted in reliance on article 8, [the] questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being 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? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
It should be emphasised that this taxonomy applies to every article 8 case in which the complaint is of removal from the United Kingdom, whether the complaint is principally based on loss of what the applicant has in the United Kingdom, or on the threat of what will happen to him in the receiving state. There is no possibility of some parts of the enquiry, but not others, applying according to whether the case is categorised as “domestic” or “foreign”: as the appellant’s argument appeared to suggest. At the same time, however, as Sedley LJ pointed out in the course of argument, the issues in questions (2) and (5) may overlap in a given case. It will therefore not be surprising if there is some lack of clarity in distinguishing the two questions; which is what has happened in this case.[30]As Miss Giovanetti submitted, the IAT conscientiously set out and followed the principal analysis of article 8 by Lord Bingham in Razgar. It would therefore be surprising if it had in fact misunderstood the standard that Lord Bingham had mandated. I am entirely satisfied that when the IAT, in its paragraph 28, spoke of absence of a flagrant or fundamental breach of the appellant’s rights, it had in mind Lord Bingham’s question (2). Unless that question can be answered affirmatively, to the standard required by Lord Bingham, then following his sequential approach the issue of proportionality, question (5), does not arise. At the same time however the IAT did in fact address the issue of proportionality, by its reference to Lord Bingham’s paragraph 20 and to the need to fall within a small minority of exceptional cases before a decision taken in pursuit of law immigration control will be found to be disproportionate.[31]Both of these approaches were open to the IAT. The fact that it, possibly supererogatorily, followed both of them is no ground for saying that it was wrong in either respect. And so far as the facts were concerned, the IAT was right to reject both the suggestion of flagrant breach and the suggestion of exceptionality. No doubt partly because it was not deployed with the present arguments in mind, the evidence, although demonstrating a grim state of affairs, did not suffice to meet the stringent requirements of article 8 as recognised in Razgar. It is quite true that in that case, in passages indeed quoted by the IAT, the House of Lords gave a cautiously affirmative answer to the issue of principle put to it, of whether it was possible for a removal decision to fall under article 8 when it did not fall under article 3. But it was also recognised that in practical terms the differential standard that had to be met under article 8 was either high (per Lord Bingham at paragraph 4) or even impossible of attainment (per Baroness Hale of Richmond at paragraph 59).[32]On a proper application of Razgar therefore, and whether or not the IAT expressed itself with total clarity, the present case could not meet the requirements of article 8.[33]Mr Blake, however, had another string to his bow. Granted that proportionality will usually be fulfilled when a decision is taken in accordance with immigration rules, it must follow that a decision that is in breach of current immigration rules and practices is disproportionate. I fear that there is a logical difficulty about that argument. The exposition in Huang, on which the argument is based, regards compliance with the immigration rules as in principle a sufficient, but not a necessary, condition of proportionality. The converse of that proposition is not, therefore, that a decision cannot be proportionate if it breaches the rules.[34]Leaving aside what is no doubt an unattractively technical objection, we heard Mr Blake’s submission that in refusing Ms ZT’s application the Secretary of State had breached his then current guidelines which, as set out in his refusal letter of 24 January 2003, were that in order to qualify for leave on exceptional grounds it had to be the case that i) the UK can be regarded as having assumed responsibility for a person’s care; and ii) there is credible medical evidence that return, due to complete absence of medical treatment in the country concerned, would significantly reduce the applicant’s life expectancy; and iii) subject them to acute physical and mental suffering. Mr Blake said that all of those criteria were satisfied in the case of Ms ZT. It would have been helpful to have had the view of the IAT on these points, this argument not having been raised before it, but absent that assistance I would comment as follows.[35]The reference to the United Kingdom’s having assumed responsibility for an applicant’s care is drawn from paragraph 53 of the Strasbourg court in D v United Kingdom. That observation was ancillary to the court’s finding of breach of article 3, which the court had already reached. If the matter had been of more central importance, I have little doubt that it would have been made clear that the implication of the United Kingdom in that respect was based on the fact that at the date at which assumption of responsibility was said to have commenced D was in prison, a condition unambiguously creating positive obligations on the part of the holding state. It is impossible to extend the concept to any provision whatsoever of health care, especially when the care is provided under arrangements available equally and without discrimination to everyone present in the United Kingdom. Lord Nicholls put this matter in perspective in paragraph 17 of his judgment in N: it would be strange if humane treatment of a would-be immigrant while his immigration application is being considered were to place him in a better position for the purposes of article 3 than a person who never reached this country at all. And if Ms ZT qualified as a person for whose care the state had assumed responsibility in this sense, so would every other AIDS sufferer who had been treated by the NHS: thus rendering otiose most or all of the lengthy and agonised enquiries in N, Razgar and other cases.[36]Ms Z cannot, therefore, take advantage of item(i) in the guidelines. The application of item(ii) is a pure issue of fact. Mr Blake said that the Adjudicator had found that, in the terms of item (ii), there was indeed a “complete absence” of medical treatment in Zimbabwe. Scrutiny of the Adjudicator’s account, set out in paragraph 3 above, indicates that although she tended in that direction she never in terms made that finding. And in any event, the IAT in its paragraph 28, set out in paragraph 5 above, found on the basis of the CIPU report that medical treatment was available in Zimbabwe, “at least to some extent”. Such a finding of fact was open to the IAT, and has a standing equal to or greater than the findings of the Adjudicator: see paragraph 26 above.[37]There would be little disagreement that Ms ZT’s case meets the third of the Secretary of State’s criteria; but since the first two criteria are not fulfilled it cannot be argued, even if it is relevant to do so, that the Secretary of State’s decision in her case breached his own immigration rules or practices.[38]I would therefore reject the arguments advanced under article 8, and dismiss this appeal. I need, however, to add some further observations, with which I understand my Lords to agree.[39]We have had perforce to decide this appeal on the basis of the evidence and arguments that were before the IAT some sixteen months ago. Since then, there have been serious further developments in relation to Zimbabwe, as demonstrated by the judgment of the Asylum and Immigration Tribunal in AA. While that case was concerned with returned asylum seekers, which Ms ZT if deported would not be, it at the same time reveals a degree of dislocation and government malpractice that gives concern for any person returning to Zimbabwe. I said in paragraph 18 above that I could envisage a case where humiliation, ostracism and deprivation of basic rights, on top of the burden of being HIV positive, created a situation of exceptionality under the jurisprudence of N. Some of the material more recently to hand about Zimbabwe gives very significant cause for concern in that respect. We do not know what the Secretary of State’s intentions now are with regard to Ms ZT. For my part, I would consider that before the Secretary of State contemplates actually deporting her to Zimbabwe he must be very sure that current conditions there do not threaten a breach of her article 3 rights. Simply to rely on the decision of this court will plainly not be enough. In deciding his future policy in this case the Secretary of State must, in the interests of open government and respect for the human rights convention, keep Ms ZT’s advisers, the Terrence Higgins Trust, fully informed, and in particular must give proper and significant warning to them of any decision to remove her to Zimbabwe: so that they may consider what further steps could properly be taken, in the light of up-to-date information, to assert Ms ZT’s Convention rights.

Lord Justice Sedley :

[40]Regretfully, but without much doubt, I agree that this appeal must fail. I take the liberty of mentioning some related concerns.[41]When in N v Home Secretary, §14, Lord Nicholls described these questions as “not capable of satisfactory humanitarian answers” he might have added “or jurisprudential ones”. If HIV were a rare affliction, readily treatable in the UK but not treatable except for the fortunate few in many other countries, the courts would have little hesitation in holding removal of sufferers to such countries to be inhuman treatment contrary to Article 3. It is the sheer volume of suffering now reaching these shores that has driven the Home Office, the Immigration Appellate Authority and the courts to find jurisprudential reasons for holding that neither Article 3 nor Article 8 can ordinarily avail HIV sufferers who face removal. Only cases which markedly exceed even the known level of suffering - an example is the expectant mother in CA v Home Secretary [2004] EWCA Civ 1165 – now qualify for protection.[42]We have in consequence had to set the bar in both Article 3 and Article 8 cases unusually high for removal cases. The reasoning of the House in N accepts, in effect, that the internal logic of the Convention has to give way to the external logic of events when these events are capable of bringing about the collapse of the Convention system. It may be that the second stage in the five-stage inquiry postulated by Lord Bingham at §17 of Razgar – not, of course, an HIV case - is part of this shift. In the ordinary case there is no particularly high threshold for entry into Article 8: indeed it is the relative ease with which one can usually establish a failure of respect for a person’s private or family life which makes the demonstration of proportionality under Article 8(2) commensurately easier. This is why, as Buxton LJ mentions in §29 above, I expressed some concern in argument about the relationship between Lord Bingham’s second and fifth stages. But the underlying message of N and Razgar, and of Ullah too,is that the ECHR is neither a surrogate system of asylum nor a fallback for those who have otherwise no right to remain here. It is for particular cases which transcend their class in respects which the Convention recognises. None of this could find any place in an originalist reading of the Convention; but just as the Convention has grown through its jurisprudence to meet new assaults on human rights, it is also having to retrench in places to avoid being overwhelmed by its own logic. If what result are rules rather than law, that may be an unavoidable price to be paid for the maintenance of the Convention system. One had much rather it were not so.

Lord Justice Jonathan Parker :

[43]I too agree that this appeal should be dismissed, for the reasons given by Buxton LJ.[44]I do not, for my part, share the sentiments expressed by Sedley LJ in paragraphs 41 and 42 above. As I see it, practical considerations are central to the concept of proportionality which is enshrined in the Convention. Accordingly I do not recognise that the Convention has an “internal logic” which on occasion has to give way to the “external logic of events”. On the contrary, as it seems to me, the “logic” of the Convention positively embraces practical considerations.

Cited in 10 later judgments

and 1 more case