Case of N v. The United Kingdom
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 applicant, Ms. N, a Ugandan national, entered the UK in March 1998. She was seriously ill and was diagnosed as HIV positive. She completed an asylum application within a few days, claiming she had been raped by the National Resistance Movement in Uganda because of her association with the Lord's Resistance Army. In August 1998, Ms. N developed Kaposi's sarcoma. In March 2001, a physician prepared an expert report which expressed that without regular antiretroviral treatment and monitoring, the applicant's life expectancy would be less than one year. The medication she needed would be available in Uganda, but only at considerable expense and in limited supply in the applicant's home town.
The Secretary of State rejected Ms. N's asylum claim, refusing, among other reasons, her argument that there had been a violation of Article 3, as treatment of AIDS in Uganda was comparable to any other African country. The European Court of Human Rights found that for ill-treatment to fall within the scope of Article 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Also, the Court maintained that the State may apply Article 3 in cases where harm derives from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.
The dissenting opinion in this case argued that the present case met the "very exceptional circumstances" test laid down in D. v. United Kingdom. As such, the Court should have found a potential Article 3 violation, "precisely because there are substantial grounds to believe that the applicant faces a real risk of prohibited treatment in the country of proposed removal."
Keywords: Case of N v. The United Kingdom, Health, HIV/AIDS, Refugees, Asylum, Seekers, Displaced, Persons, Right
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.
