Nsubuga v Secretary of State for the Home Department

LORD JUSTICE PILL: For the reason I have given, I will ask Lord Justice Latham to give the court's ruling.

LORD JUSTICE LATHAM: This matter comes before us today as an appeal by reason of permission granted on 5th October. At the same time Carnwath LJ, when granting permission, indicated that it was appropriate to expedite this case. The reason for his doing so was because he was informed that it gave rise to a particular issue which should be resolved as soon as possible relating to the interaction of Articles 3 and 8 of the European Convention on Human Rights, in cases involving those who have sought to remain here on the grounds that they are suffering from HIV or AIDS, in the light of the decisions of the House of Lords in R v Secretary of State for the Home Department ex parte Razgar [2004] UKHL 27 and N v Secretary of State for the Home Department [2005] UKHL 31. The particular concern in this appeal relates to the way that the court should approach an application or appeal based upon an alleged breach of Article 8 in view of the decision of the House of Lords in N which related to Article 3.

In fact, it is apparent that the issue is before this court in a number of other appeals. In particular, there is an appeal to be heard tomorrow but which raises other issues which may or may not in the end be of greater significance, and that is the appeal of T, which is 2004/1920/C4. There are, however, certainly two other appeals due to be heard at the end of this month, firstly, Mando and others (2004/0702/C4) and secondly KM (2004/1753/C4).

On the basis of the material that we have, it would seem inappropriate for this court to hear this appeal today, in advance of those appeals, which are appeals which have been listed significantly before this appeal was granted permission. This particular appeal could more appropriately be joined with the two appeals at the end of the month and dealt with together with them, if it is at all possible to achieve that result.

We accordingly propose that this appeal should be stood out of the list today and that it should be listed together with the appeal of Mando and/or the appeal of KM, preferably (if this is possible) so that all three appeals can proceed together. This will ensure that the court is able to deal with the issue in question in one hearing. One would anticipate in those circumstances that the estimated length of the hearing would not be significantly increased by the addition of this appeal, bearing in mind the fact that in this case, apart from the core issue of principle, there is not a great deal of subsidiary argument. That would mean that, certainly so far as the respondent is concerned, argument would be confined to the core issue.

Clearly in order to enable the court to deal with the three appeals if, as we say, at all possible, counsel should liaise with each other and with the Court Office in order to provide the court, firstly, with a sensible estimate of the consequences in terms of time and, secondly, to ensure that there is before the court, whatever course is taken, simply one bundle at least of authorities which can assist the court, and also to ensure that such skeleton arguments and other documentation are so edited as to avoid duplication.

In those circumstances, it seems to us that the right order is that the case should be stood out of the list today on the basis that I have indicated. As far as costs are concerned, the costs should be reserved.