“The respondent has not accepted responsibility for her continued and indefinite treatment. It was conceded that she had established a private life here. Her removal would not undermine the organ transplant system. [The respondent’s representative] conceded that she could not afford the treatment in Nigeria and would therefore inevitably die. He submitted that disparity of care is not a reason to allow the appeal. There is physical and emotional support available from family members in Nigeria. It was however proportionate to remove her as her case did not reach the high threshold required in medical cases. There is no absolute protection afforded by article 8.”
“… there is nothing to suggest she was aware of her illness before she came here or that she is a health tourist.”
“She has involved herself in the community in a positive way for many years and has many friends, 6 of whom took the trouble to give evidence, a further 10 of whom came to support her in Court, and many more of whom wrote letters of support and signed a petition.”
“I am satisfied that removal would normally be lawful and would be for the legitimate aim of maintaining the economic well being of the country and retaining the integrity of immigration control by only allowing those to be here who comply with the immigration rules. However the maintenance of the economic well being of the country, given she came here legally and was diagnosed while here lawfully and there was no evidence she knew she was ill before she came here, carries little weight in this particular case. I am not satisfied it is proportionate to require the appellant to leave given the following constellation of reasons. She has an extensive and productive private life here. The cost of her treatment is not excessive. She came here legally and was diagnosed while here lawfully. There is no evidence she knew she was ill before she came here. She will die very quickly in very distressing circumstances. Very few cases can succeed under article 8 where they fail under article 3. This is one of them.”
“…makes clear that medical care is only relevant to article 8 where an individual’s personal ties to the UK have a direct bearing on their prognosis.”
“It may be that although, in principle, the scope of Art 8 is wider than that of Art 3, in practical terms that in a case like this where the claimant has no right to remain it will be a “very rare case” indeed where such a claim could succeed (see KH (Afghanistan) v SSHD[2009] EWCA Civ 1354 and MM (Zimbabwe) v SSHD[2012] EWCA Civ 279 ).[1] That reality may lay at the heart of the majority’s view of the Strasbourg Court in N v UK when, having rejected the individual’s claim under Art 3, stated that no “separate issue” arose under Art 8 (compare the dissenting Judge’s opinion at 1 to 6).”
“…(b) However, in principle Art 8 can be relied on in cases of this sort. The removal of the individual would, on the face of it, engage Art 8(1) on the basis of an interference with his or her private life as an aspect of that individual’s ‘physical and moral integrity’ (see Bensaid v UK(2001) 33 EHRR 10 ). Unlike Art 3, however, Art 8 is not absolute and the legitimate aim of the economic well-being of the country would be relevant in determining whether a breach of Art 8 could be established given any financial implications that continued treatment in the UK would entail (see also R (on the application of Razgar) v SSHD[2004] UKHL 27 ;[2004] 2 AC 368 ). (c) It may be that although, in principle, the scope of Art 8 is wider than that of Art 3, in practical terms that in a case like this where the claimant has no right to remain it will be a “very rare case” indeed where such a claim could succeed (see KH (Afghanistan) v SSHD[2009] EWCA Civ 1354 and MM (Zimbabwe) v SSHD[2012] EWCA Civ 279 ).[1] That reality may lay at the heart of the majority’s view of the Strasbourg Court in N v UK when, having rejected the individual’s claim under Art 3, stated that no “separate issue” arose under Art 8 (compare the dissenting Judge’s opinion at 1 to 6). (d) Again we note that in N v UK the minority disagreed with the failure to address Article 8. We see some force in this. If it be the case that the Article 3 threshold is an exceptionally high one because of the absolute character of the prohibition and concerns that Contracting States could be swamped by health tourism claims by people with no prior connection to the state in question seeking to enter or remain to gain access to expensive medical treatment, an Article 8 proportionality analysis might yield a different outcome in other cases, possibly where the claimant had a lawful permission to reside in the host state before the disease was diagnosed.”
“…reliance may in principle be placed on article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough article 8 may in principle be invoked. It is plain that "private life" is a broad term, and the Court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the Court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life. In Pretty v United Kingdom(2002) 35 EHRR 1 , paragraph 61, the Court held the expression to cover "the physical and psychological integrity of a person" and went on to observe that "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." Lord Bingham continued: “Elusive though the concept is, I think one must understand "private life" in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person.”
“…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.”
“Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by Article 8. However, the Court's case-law does not exclude that treatment which does not reach the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently adverse effects on physical and moral integrity (see Costello-Roberts v. the United Kingdom, judgment of25 March 1993 , Series A no. 247-C, pp. 60-61, § 36).”
“There is no fixed relationship between Art. 3 and Art. 8. Typically a finding of a violation of the former may make a decision on the latter unnecessary; but the latter is not simply a more easily accessed version of the former. Each has to be approached and applied on its own terms…”
“In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.”
“Although expressed by reference to family life, that reasoning plainly applies equally to private life cases.”
“Despite that clear-cut principle, the courts in the United Kingdom have declined to say that Article 8 can never be engaged by the health consequences of removal from the United Kingdom……"if the facts relied on by the applicant are sufficiently strong"”
"Although the possibility cannot be excluded, it is not easy to think of a foreign health care case which would fail under Article 3 but succeed under Article 8. There clearly must be a strong case before the Article is even engaged and then a fair balance must be struck under Article 8(2). In striking that balance, only the most compelling humanitarian considerations are likely to prevail over legitimate aims of immigration control or public safety. The expelling state is required to assess the strength of the threat and strike that balance. It is not required to compare the adequacy of the health care available in the two countries. The question is whether removal to the foreign country will have a sufficiently adverse effect upon the applicant. Nor can the expelling state be required to assume a more favourable status in its own territory than the applicant is currently entitled to. The applicant remains to be treated as someone who is liable to expulsion, not as someone who is entitled to remain."
“The only cases I can foresee where the absence of adequate medical treatment in the country to which a person is to be deported will be relevant to Article 8, is where it is an additional factor to be weighed in the balance, with other factors which by themselves engage Article 8.”
“Suppose, in this case, the appellant had established firm family ties in this country, then the availability of continuing medical treatment here, coupled with his dependence on the family here for support, together establish 'private life' under Article 8. That conclusion would not involve a comparison between medical facilities here and those in Zimbabwe. Such a finding would not offend the principle expressed above that the United Kingdom is under no Convention obligation to provide medical treatment here when it is not available in the country to which the appellant is to be deported.”
“Into its review of a trial judge’s determination of a child case an appellate court needs to factor the advantages which the judge had over it in appraising the case. In Piglowska v Piglowski[1999] 1 WLR 1360 Lord Hoffmann said, at p 1372: “The appellate court must bear in mind the advantage which the first instance judge had in seeing the parties and the other witnesses. This is well understood on questions of credibility and findings of primary fact. But it goes further than that. It applies also to the judge’s evaluation of those facts. If I may quote what I said in Biogen Inc v Medeva plc[1997] RPC 1 , 45: The need for appellate caution in reversing the trial judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance...of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”
“Factual judgments of this kind are often not easy, but they are not made easier or better by excessive legal or linguistic analysis. It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case (as is indeed illustrated by Mr Fountain's decision after the second hearing). The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law, so as to justify an appeal under the old system, or an order for reconsideration under the new. Nor does it create any precedent, so as to limit the Secretary of State's right to argue for a more restrictive approach on a similar case in the future. However, on the facts of the particular case, the decision of the specialist tribunal should be respected.”