SN v Secretary of State for the Home Department

J U D G M E N T

1. LORD JUSTICE BUXTON: This is an appeal from a determination of the Immigration Appeal Tribunal in yet another case where the appellant has the misfortune to suffer from HIV/AIDS and it is proposed by the Secretary of State to remove her from this country to her country of origin, where the therapy that she has been receiving here is almost certainly not going to be available to her. There is in fact now only one point that is open to the appellant in this Court, permission to assert various other complaints having been refused at various stages.

2. I can state the background really quite shortly. The matter was considered by an adjudicator in January 2004 who made various findings as to the present state of the applicant and her future fate. She is a citizen of Uganda and it is to there, of course, that the Secretary of State proposes to remove her. At paragraph 37 of his determination the adjudicator held, as a fact, that the particular drug therapy that she required for her condition and is receiving here is not currently available in Uganda and there was no indication when it might be so available. He then continued in these terms in paragraph 38:

"I also find on the basis of the unchallenged evidence of Dr Walsh that it is reasonably likely that there would indeed be an adverse affect on the Appellant's health. Bearing in mind the nature of HIV, I am prepared to accept that there is a real risk that it could develop into full-blown AIDS and lead to death. This has to be compared with the evidence of Dr Walsh that the Appellant would have a very good life expectancy in this country with her current drug therapy."

He said at paragraph 39 that the he was satisfied that the degree of harm involved was sufficiently serious to engage Article 8.

3. He then had to consider whether it would be a disproportionate response by the Secretary of State, bearing in mind the claims of effective immigration control, to expel this lady to Uganda. The adjudicator said this in his paragraph 45, having gone through a number of other considerations that in my judgement do not now call for investigation:

"The final, and for me decisive factor that I take into account is the medical situation of the appellant and the lack of availability in Uganda of the specific drug combination required by her to continue stabilising her HIV. This in itself distinguishes this case from cases such as K where the argument had turned around affordable or treatment rather than actual availability.

Whilst I would accept that this is something of a finely balanced case, taking all the above factors into account I have come to the conclusion that to remove the Appellant from the United Kingdom in the circumstances would be disproportionate and not necessary in a democratic society."

He therefore found that the expulsion would be a breach of this country's obligations under Article 8 of the Convention.

4. The Secretary of State sought permission to appeal to the Immigration Appeal Tribunal. Criticism was made of the terms in which that permission was sought and as to whether a point of law was engaged by those terms, but that matter was considered at the permission stage in this court and permission to pursue it was not granted. Similarly, an issue was raised as to whether Article 3 might be engaged. The Immigration Appeal Tribunal refused permission to pursue the Article 3 question, which had not been pursued before the adjudicator, and that also does not now arise before us.

5. The Immigration Appeal Tribunal however held that the adjudicator had not applied a correctly demanding test in respect of Article 8. In reaching that conclusion the Tribunal relied on and referred to the observations of Baroness Hale of Richmond in the case of Razgar in the House of Lords, and in particular what Baroness Hale said at paragraph 59:

"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 legitimate aims immigration control or public safety."

6. The Immigration Appeal Tribunal, relying on that formulation, held that this case did not in law meet the requirements of Article 8. Having reviewed the facts in some detail they reached the following conclusion in paragraph 28 of their determination:

"...we find that the Adjudicator did not apply a sufficient high standard when deciding if the claimant's removal would constitute [the word should be "an"] unlawful interference with her Article 8 rights. A person's private and family life encompasses a variety of factors including her personal relationships and length of stay in the United Kingdom. Taking everything into account the Adjudicator was entitled to conclude that the claimant's removal would be an interference with her private and family life but not that the consequences would be disproportionate that to the proper purposed of enforcing immigration control."

The Secretary of State's appeal was therefore allowed.

7. The only ground upon which this Court gave the appellant permission to appeal was a ground expressing concern about what might be thought to be a difference of approach or formulation in the speeches in the House of Lords in Razgar as between, on the one hand, Baroness Hale of Richmond (which, as we have seen, the Tribunal applied), and on the other hand the speech of Lord Bingham of Cornhill. It is that issue that we have considered this morning.

8. Before going into that, however, it is necessary to say something of how that distinction is said to be approached. Fundamental to the argument, is the alleged distinction between on the one hand "Domestic Article 8 cases" and on the other hand "Foreign Article 8 cases." Mr De Mello said that a case such as the present, where someone complains of being removed from the facilities that they are enjoying in this country, is to be regarded as a domestic, or if not that a hybrid, case; and not, or at least not exclusively, a foreign case; and different standards under Article 8 may apply as between the two types of case.

9. An argument broadly to that effect, though not ventilating the particular point in this case of the alleged distinction between the views of Lord Bingham on the one hand and Baroness Hale of Richmond on the other, was placed before this Court in the recent appeal of ZT and Secretary of State for the Home Department [2005] EWCA 1421. In that case it was argued that in a "domestic case" the proper test was simply the test of proportionality, whereas in a "foreign" case, the test was whether there had been a "flagrant or fundamental" breach of Article 8 rights.

10. I addressed that argument in paragraphs 27 to 29 of the judgment in ZT. As I ventured to point out to Mr De Mello in the course of argument, in ZT this Court held, rightly or wrongly, that the same general standard of Convention jurisprudence applied in every Article 8 case, whether it be categorised as domestic or as foreign, and therefore even if he could demonstrate in this case that there was a difference between domestic and foreign cases that would not in fact avail him, at least at the level of the Court of Appeal. He was good enough to indicate that that was indeed so. However, I would pursue the matter somewhat because I think it is necessary to clear up at least one misunderstanding.

11. Mr De Mello, in his written submissions to this Court, criticised the following passage in paragraph 28 of the judgments in ZT:

"The distinction between foreign and domestic cases is adopted not as a matter of categorisation but simply for ease of exposition. It has never been suggested that different rules of law apply as between the two types of case, nor could it be since they are both subject to the same rule of Article 8."

12. Mr De Mello said that that was wrong. It was wrong because in the case of Ullah Lord Bingham had drawn a distinction, which was not merely a matter of exposition but a matter of categorisation, between domestic and foreign cases: a distinction that had been adopted by Baroness Hale of Richmond in her speech in Razgar, and the basis of which she had made the observation followed by the tribunal in this case and of which complaint is made in this appeal. What Lord Bingham said in the passage conveniently cited by Baroness Hale in paragraph 41 of Razgar was that a domestic case is a case where a State is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory. A foreign case, from paragraph 9 of Ullah one in which the conduct of the State in removing a person from its territory to another territory will lead to a violation of that person's Convention rights in that other territory.

13. That distinction was formulated in the context of the point before the Court in Ullah, that is to say whether Article 8, or indeed other Articles of the Convention, could ever be asserted in a case that related to events that were going to occur outside this country. But in that context Lord Bingham would place into the category of foreign cases all cases that involved expulsion from this country. True it is that there may be such cases where complaint is additionally made about loss of Article 8 related rights here, whether it be by way of companionship or by way of medical treatment. But the essential point focussed on by Lord Bingham in his category of a foreign case is to encompass therein all cases where there is to be expulsion from this territory.

14. I regret that I did not make that sufficiently plain in paragraph 28 of ZT. That paragraph was addressing an argument adduced in that case and somewhat similar to the argument adduced in this case, which suggested that there was a difference in terms of the application of the law of Article 8 according to whether elements of the acts complained of or threatened were occurring in this country or occurring elsewhere. It was in relation to that argument that I suggested that the terms "foreign" and "domestic" were simply matters of exposition and not categorisation.

15. In terms of the categorisation in Ullah all expulsion cases fall into the foreign category. That being so, when one comes to apply the taxonomy relevant to Article 8 set out by Lord Bingham in paragraph 17 of his judgment in Razgar, the requirement of flagrant interference applies to all aspects of a case where there is to be expulsion to another country. Proportionality comes in at the later stage, paragraph 5 of Lord Bingham's taxonomy, but it comes in in every case. As I sought to explain in ZT, that is not the exclusive test in a domestic case, nor is it a test that is limited to domestic circumstances.

16. I therefore do not accept that what Baroness Hale of Richmond said in Razgar was significantly or at all distorted or falsified in its application to a case such as the present by the distinction that she adopted from Lord Bingham in respect of domestic and foreign cases.

17. What it really comes down to is this. Mr De Mello, took us to paragraph 20 of Lord Bingham in Razgar and reminded us that in his exposition of the requirements of Article 8 in paragraph 17 of Razgar question 2 is: "Will such interference have consequences of such gravity as potentially to engage the operation of Article 8." That, on its face, appears to be a wider more generous test than that formulated by Baroness Hale. But that question asked by Lord Bingham was asked in the context of his immediately preceding judgment in the case of Ullah, where Lord Bingham was quite clear that the test of a flagrant and fundamental breach of Article 8 rights was the basis for determining whether or not the Article 8 was engaged at all. So it cannot be said that Lord Bingham in paragraph 18 or paragraph 20 of Razgar was setting the bar, as the phrase is, significantly lower than what was assumed by Baroness Hale in her statement at paragraph 59.

18. In that statement in paragraph 59, Baroness Hale explains the effect of the jurisprudence on the practical determination of an Article 8 claim in an immigration case. Lord Bingham had already said in paragraph 20, in respect of proportionality:

"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."

Lady Hale said this in paragraph 59:

"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 the legitimate aims of immigration control or public safety."

19. I do not see, for my part, and with the greatest of respect, any distinction approach between Lord Bingham on the one hand and Baroness Hale on the other, and indeed it would be surprising in the extreme if that were so. Although it is true that technically speaking Lady Hale's speech in Razgar was a dissenting speech the house in that case divided only on the question of whether, in a certification case, it would have been open to a rational Secretary of State on the facts of that case to take the view that he did. There was no distinction between the various speeches in terms of the underlying Article 8 jurisprudence. When Baroness Hale spoke as she did she was, if I may very respectfully say so, giving what might be described as some practical application of Lord Bingham's reference to a small minority of exceptional cases. The small minority of exceptional cases will be those where the most compelling humanitarian considerations are to be found.

20. In those circumstances, therefore, I for my part would, with the greatest of respect, regard Baroness Hale's formulation as a safe guide for those who bear the burden of deciding these matters, consistent as it is in my view with the approach both in Razgar and in Ullah of constitutions of the House of Lords that on this issue were unanimous. The Immigration Appeal Tribunal in this case is therefore not to be criticised for founding itself on what was said by Baroness Hale. Once it had properly founded itself on that formulation, it was clearly open to the Immigration Appeal Tribunal on the facts of this case to come to the conclusion that it did.

21. In those circumstances there are no grounds for holding the Immigration Appeal Tribunal to have erred in law. I would dismiss this appeal.

22. LORD JUSTICE SEDLEY: I agree.

23. LORD JUSTICE BROOKE: I also agree.