Information Note on the Court’s case-law 108
May 2008
N. v. the United Kingdom [GC] - 26565/05
Judgment 27.5.2008 [GC]
Article 3
Expulsion
Proposed removal of HIV patient to her country of origin, where her access to appropriate medical treatment was uncertain: deportation would not constitute a violation
Facts: The applicant, N., a Ugandan national, had entered the United Kingdom in 1998 under an assumed name and applied for asylum. In the ensuing months she was diagnosed as having two AIDS defining illnesses and a high level of immunosuppression. She was treated with antiretroviral drugs and her condition began to stabilise. In 2001 the Secretary of State refused her asylum claim on credibility grounds and also rejected a claim that her expulsion would constitute inhuman treatment under Article 3 of the Convention. Although the applicant successfully appealed to an adjudicator on the Article 3 point, that decision was overturned by the Immigration Appeal Tribunal, which found that medical treatment was available in Uganda even though it fell below the level of medical provision in the United Kingdom. The applicant’s appeals to the Court of Appeal and the House of Lords were dismissed. At the date of the Grand Chamber’s judgment, the applicant’s condition was stable, she was fit to travel and was expected to remain fit as long as she continued to receive the basic treatment she needed. The evidence before the national courts indicated, however, that if she were to be deprived of the medication she had been receiving in the United Kingdom her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years. According to information collated by the World Health Organisation, antiretroviral medication was available in Uganda, although, through a lack of resources, it was received by only half of those in need. The applicant claimed that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she came. It appeared that she had family members in Uganda, although she claimed that they would not be willing or able to care for her if she were seriously ill.
Law: Article 3 – The Court summarised the principles applicable to the expulsion of the seriously ill: Aliens subject to expulsion could not 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 there. The fact that the applicant’s circumstances, including her or his life expectancy, would be significantly reduced if he or she were to be removed was not sufficient in itself to give rise to a breach of Article 3. The decision to remove an alien suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness were inferior to those available in the Contracting State might raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal were compelling, as in D. v. the United Kingdom (Reports of Judgments and Decisions 1997-III – applicant critically ill and close to death, with no guarantees of any nursing or medical care in his country of origin or family there willing or able to provide even a basic level of food, shelter or social support). Article 3 did not place an obligation on Contracting States to alleviate disparities between the levels of treatment available in different countries through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdiction. Finally, these principles had to apply to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which might cause suffering, pain and reduced life expectancy and require specialised medical treatment which might not be so readily available in the applicant’s country of origin or which might be available only at substantial cost.
In the applicant’s case, her claim was based solely on her serious medical condition and the lack of sufficient treatment available in her home country. The fact that the United Kingdom had provided her with medical and social assistance at public expense while her asylum application and claims under the Convention were being determined did not in itself entail a duty on its part to continue to provide for her. Although her quality of life and life expectancy would be affected if she were returned to Uganda, she was not critically ill. The rapidity of the deterioration she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, involved a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide. Her case did not, therefore, disclose “very exceptional circumstances”.
Conclusion: no violation (fourteen votes to three).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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