Appeal on asylum seeker’s behalf to remain in the United Kingdom in order to continue to receive necessary antiretroviral treatment and support for AIDS-related illnesses. Articles 3 (prohibition of torture) and 8 (Right to respect for private and family life) of the European Convention on Human Rights (ECHR).
The UK immigration tribunals are now applying the N decision in a far-reaching and arguably excessive manner, denying almost any requests by non-nationals not legally allowed to remain in the UK. For example, in a recent decision by the Upper Tribunal (the initial appellate body for immigration and asylum claims) (GS (Article 3 – health exceptionality) India [2011] UKUT 35 (IAC) (24 February 2011)), it was held that the deportation of a non-national receiving kidney dialysis treatment in the UK would not violate Article 3 ECHR, even though the applicant would not receive the treatment in India. According to the tribunal, deportation would only be unlawful if the individual in question was effectively dying. The facts of this case were arguably closer to those at issue in the initial D v UK decision than to those at stake in the N case, as the withdrawal of treatment that would inevitably follow deportation would immediately create serious and potentially fatal health difficulties for the claimant.
The decision in N means that non-nationals receiving medical care for serious illnesses in the UK but who have no legal right to remain in the country may now be deported back to their home countries, notwithstanding their medical condition and the lack of equivalent care facilities in the destination state. As the subsequent GS decision referred to above indicates, this has made it possible for persons who are seriously ill to be deported, in spite of the immediate effect this may have on their life expectancy and the state of their health.