DM (Zambia) v Secretary of State for the Home Department

The appellant, a national of Zambia now aged 61, entered the United Kingdom with six months’ leave as a visitor in March 2001. Her daughter, P, was living here, but for some reason the appellant said that she coming to visit her sister. In fact the relative she named as her sister was a second cousin, which would not have been a sufficient degree of relationship to secure a visitor’s visa. Why the appellant named this cousin when she had a daughter here we do not know, but the untruth has done her much harm in the present proceedings.

Almost immediately after her arrival she became ill and was diagnosed with HIV/AIDS. Antiretroviral therapy proved successful and has stabilised her condition. The appellant for her part has been open with the Home Office since that time that her reason for wanting to remain here was to continue to receive treatment. The Home Office for its part declined in 2001 to give her indefinite leave to remain but gave her discretionary leave, first until October 2003 and then until March 2007. By a decision letter sent in January 2008, however, the Home Office declined to give any further extension and required her to return to Zambia.

The appellant’s initial appeal against this decision succeeded. Immigration Judge Simpson in April 2008 held that removal of the appellant would, in the exceptional circumstances of this case, violate both Article 3 and Article 8 of the European Convention. The determination is humane and thoughtful but it was held, on a first-stage reconsideration by Senior Immigration Judge Southern, to have been marred by a material error of law in relation to Article 3.

The Immigration Judge had concluded, to put it in summary form, that at least a moral obligation had been entered into by the United Kingdom by an assumption of responsibility for the continuing treatment of the appellant. The Senior Immigration Judge held this conclusion to be unsustainable, pointing out in essence that no such undertaking, whether legal or moral, could be inferred from a humane decision to let the appellant stay here for a number of years in order to secure treatment.

Of the grounds advanced to this court initially on the appellant’s behalf, the first was that the Immigration Judge’s determination in the appellant’s favour contained no such error of law and that the Senior Immigration Judge’s finding to the contrary is no more than a disagreement about the weight of evidence. Sir Henry Brooke, on sight of the papers, refused permission to appeal on this ground, and wisely -- if I may say so -- Mr Schwenk for the appellant does not renew it before us.

The reason he was right not to do so is that the initial determination was visibly flawed in the respect identified by the Senior Immigration Judge at the first-stage reconsideration. Immigration Judge Simpson, having considered clear and compelling evidence about the paucity and cost of treatment available in Zambia, concluded in relation to Article 3 at paragraph 19:

“Looked at in the round … I find that in regard to Article 3 the appellant has satisfied me that there is a real risk that on her return to Zambia she would be exposed to inhumane and degrading treatment.”

In other words what, in the light of the well known decision in N v SSHD [2005] UKHL 31, the Immigration Judge held made the case exceptional was not, since it could not be, the pitiful state of healthcare in Zambia, which is one of the world’s 15 poorest countries, but what she regarded as the implied undertaking of the United Kingdom to afford the appellant the healthcare she needed. Once it was established that no such indefinite commitment could properly be spelt out of time-limited decisions made by the Home Office for humane and creditable reasons albeit on a false assumption about the identity of the sponsor, this inevitably followed.

I have dealt with the point because it had, and continues to have some relevance to the question of proportionality of removal under Article 8, to which I shall come.

In the light of his decision that an Article 3 claim was unsustainable in the appellant’s case, the Senior Immigration Judge’s directions for a second-stage reconsideration were concerned entirely with rearguing the Article 8 claim. This was a claim which had also succeeded before the Immigration Judge, but the Senior Immigration Judge’s finding about the character of the two grants of discretionary leave to remain had the necessary effect of undermining the Article 8 decision too. It remained arguable, but it now required re-evaluation. The Senior Immigration Judge accordingly directed, in paragraph 32 of his decision, that the second-stage tribunal:

“should consider the evidence and make clear findings of fact concerning each of the following issues, which are capable of being relevant to the appellant’s claim under Article 8 of the ECHR.

(a)

The state of the appellant’s health in 2004 as disclosed to the respondent, leading to the decision to grant further discretionary leave in order to access medical treatment in the United Kingdom;

(b)

The extent to which, if at all, the evidence disclosed to the respondent in 2007 demonstrated a significant improvement in the appellant’s health;

(c)

The family or other support available to the appellant upon return to Zambia from the various relatives who continued to reside there;

(d)

Finally, although this is far from being determinative, whether the appellant was aware that she was ill before travelling to the United Kingdom.”

Mr Schwenk takes no issue with the propriety of that direction. I would add for my part that the Article 8 finding in any event required reappraisal because the Immigration Judge, having found the article engaged, simply said that “having performed the necessary balancing act” she found that removal would be disproportionate. She was no doubt meaning to refer back in this formula to her finding that the United Kingdom had impliedly undertaken the appellant’s healthcare for the indefinite future, but this court has said many times that you cannot dispose of an Article 8 proportionality issue in a perfunctory or formulaic way. It requires a structured decision, however economically expressed.

The second-stage reconsideration came before Senior Immigration Judge Chalkley and Immigration Judge Levin. The appellant’s grounds and notice refer to the determination as that of Immigration Judge Levin alone since it is he alone who has signed the document. This confusion is the product of a practice which this court has several times now asked the AIT to reconsider. Although the determination is expressed in the first-person plural, and although we have no reason to doubt that it is a decision in which both members concurred, the practice of allowing one member to sign the determination as its author can give the impression that the decision has been delegated by the panel to a single member. The practice of this court, in making it clear where there is a single judgment that it is the judgment of the whole court, could readily be borrowed or adapted by the AIT.

Sitting on 3 September 2008, the AIT approached the appeal on the accepted footing that the claim now lay under Article 8 alone. They were confronted at the outset by an application made by the appellant’s counsel to exclude documents which the Home Office had introduced in a supplementary bundle submitted only two days before the hearing in manifest breach of Rule 32, which requires notice to be served of any application to admit new material as soon as possible after the order for reconsideration: here, 19 May 2008. The Home Office advocate’s reason was that she herself had only just found the documents. The AIT admitted them on the ground that it would be unjust not to do so and refused the appellant’s counsel the adjournment for which he had asked in the alternative.

Although this might have seemed an unusual exercise of the Tribunal’s powers, two elements made it not so. First, the documents all originated with the appellant herself. They were representations made to the entry clearance officer in Zambia or to the Home Office on arrival in London. Secondly, when offered time to take instructions in lieu of an adjournment of the hearing, the appellant’s counsel declined. It was in the circumstances clearly open to the AIT and arguably the right thing for them without unfairness to admit the material. Sir Henry Brooke refused permission to appeal on this ground as well and, again rightly, it has not been renewed; but it too has a bearing on what followed below and what follows now.

The single ground on which Sir Henry Brooke granted permission to appeal concerns the way in which the AIT handled the previous finding of the Immigration Judge on the Article 8 claim. The ground is a narrow one. It is that the AIT, on the second-stage reconsideration, was not at liberty to depart from the original finding of Immigration Judge Simpson in paragraph 17 of her decision in the following terms:

“Moreover, I have no doubt, based on the comments of Dr Baggaley, that if the appellant were to return to Zambia she would be unable to obtain the necessary medical treatment for her condition and, given her age, it is likely that she would go downhill very quickly indeed -- her untimely death would be inevitable.”

The AIT, on reconsideration, held that they were not bound by this finding -- bound in the sense that they could not go beyond it -- because the Immigration Judge had made it in the course of her now defunct Article 3 determination, whereas the appeal was now concerned with Article 8. If this had been the only point in the case it would have seemed to me, with respect, somewhat casuistic. This was a finding of fact as potentially material to Article 8 as to Article 3, both of which were before the Immigration Judge, and as I have said she plainly intended her findings under the one to form part of her evaluation under the other. But that is not the critical issue.

Mr Schwenk for the appellant relies on what was said by Latham LJ in the case of DK (Serbia) [2006] EWCA Civ 1747:

“any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited.”

I do not think that this necessarily answers the present problem. The Immigration Judge’s particular finding was derived entirely from the evidence of Dr Baggaley, whose report was also read and accepted by the AIT. They said, in paragraph 55:

“55.

In considering the proportionality of the Respondent’s Decision we have also given careful consideration to the expert medical report of Dr Baggaley dated 9th March 2008 which appears at page 21 of the Appellant’s bundle. We accept that Dr Baggaley is an expert in this field in that she is a medical doctor and head of the HIV unit of Christian Aid which we note is a large international NGO with numerous partner organisations in sub-Saharan Africa, including Zambia. We also note that Christian Aid has a field office in Lusaka and that Dr Baggaley has travelled frequently to Africa including Zambia to review projects and programmes. We note that in her report Dr Baggaley confirmed that the three drugs that the Appellant is presently taking are all currently available in private pharmacies in Lusaka and also in Ndolo where the Appellant lived, at a cost of approximately £102 per month. We have also taken into account Dr Baggaley’s opinion that without access to antiretroviral therapy the Appellant will deteriorate and die.”

The AIT had not only this evidence of Dr Baggaley before them, which they fully and fairly summarised, but other evidence with which it had to be married up. Without travelling through it all, because it covers many pages, it was the basis for the conclusion which they expressed in the following terms:

“However in considering the proportionality of the Respondent’s Decision we also have to bear in mind the clear findings of Senior Immigration Judge Southern that the Appellant’s medical condition was not serious enough to engage Article 3 and also our earlier findings upon the question of proportionality. After taking into account the medical opinion of Dr Ahmad that the Appellant in November 2007 was well and fit to travel, and in the absence of any medical evidence to show that the Appellant’s situation had deteriorated since the date of Dr Ahmad’s report, and further having regard to our findings upon the proportionality of the Respondent’s Decision, the availability of drug therapy in Zambia and our finding that the Appellant will receive financial support from [P, her daughter] in Canada and our rejection of the Appellant’s claim that she will not receive any family support in Zambia, then taking into account all of these findings in the context of the minimal level of private life that the Appellant has in the United Kingdom, then we find that it cannot properly be said that the Respondent’s decision to refuse the Appellant’s application for further leave to remain is in any way disproportionate to the minimal private life that the Appellant has in the United Kingdom”

I will touch in a moment on some of the findings on which this conclusion is based. It is quite correct, however, that whereas the Immigration Judge had been in no doubt, on the evidence before her, that the appellant would not have access in Zambia to the treatment she needs, the AIT took a contrary view. They did so largely in the light of evidence not available to the Immigration Judge.

Before I consider whether this approach was open to the AIT, attention needs, I think, to be paid to the submission of counsel for the Secretary of State, Mr Auburn, that this issue is of academic interest only, because the AIT was considering proportionality only contingently on its having erred in finding Article 8 not engaged at all. Their primary determination on Article 8 was that the appellant had no family life any longer in the United Kingdom, her daughter having emigrated and her contact with the second cousin whom she had claimed as her sister having been lost; and that although she had established a degree of private life here it was so “minimal and insignificant” as not to engage Article 8 at all. This conclusion was arrived at with regard to Lord Bingham’s proposition in R (Razgar) v SSHD[2004] UKHL 27 that an interference with private life has to have consequences of sufficient gravity to engage Article 8, but without regard to this court’s explanation in AG (Eritrea) v SSHD [2007] EWCA Civ 801 that this posits no specially high threshold. Once the existence of family or private life in the UK is established its character and intensity affect the proportionality of the proposed interference with it, not its existence or its engagement of Article 8(1). An interference with no significant consequences will not offend against Article 8, not because there is no private or family life within the meaning of the Article but because, so long as it is lawful and directed to a permitted purpose, there will be little requiring justification.

I have to say that it seems to me largely because of the disorderly presentation of the appellant’s case to this court that this confusion has arisen. Sir Henry Brooke related his decision on permission to appeal to the skeleton argument, which in paragraph 9 raises the issue on which he gave permission to appeal but in paragraph 16 goes on to submit -- what ought logically to have come first -- that the finding that the private life limb of Article 8 was not engaged is perverse. On this issue there is neither a grant nor a refusal of permission to appeal. It is a difficulty which would not have arisen if the appellant’s notice had been accompanied by short numbered grounds, amplified in due course by a skeleton argument. Instead the grounds run to six single-spaced pages in narrative form, reaching this issue in paragraph 11 and putting it (correctly) ahead of proportionality.

In this situation, and given the gravity of the case for the appellant, I want to look briefly at the question of engagement of the Article, albeit we have not needed to hear argument upon it. That said, the AIT appears to me at first blush to have misunderstood what constitutes private life for the purposes of Article 8. They dealt with it in the appellant’s case in this way:

“45.

We now turn to consider the Appellant’s private life in the UK. The Appellant’s evidence was that she is living with a family of fellow Zambians who are friends from her church and that she has been living with them on a temporary basis since her daughter emigrated to Canada in January 2008. She stated that the arrangement was only a temporary arrangement until such time as her application for indefinite leave to remain (and presumably the appeal process) had been determined. The only other private life that the Appellant mentioned was that she attended the Seventh Day Adventist Church in Manchester each Saturday and twice a week she went to the library to read books. The Appellant’s evidence was that apart from that she did nothing else.”

On this basis they went on:

“46.

Having regard to the Appellant’s evidence, we find that the Appellant has established a private life in the United Kingdom. However we find that the extent of the private life established by the Appellant is minimal and insignificant. Whilst we find that the removal of the Appellant to Zambia will interfere with the Appellant’s private life in the United Kingdom we do not find that any such interference will have consequences of such gravity so as potentially to engage the operation of Article 8.”

While, as I reiterate, we have not heard argument on this question, my tentative view is that this manifests a misunderstanding of what the Convention envisages when it speaks of private life and also of what it takes to engage Article 8. It is sufficient for the present to recall the holding of the European Court of Human Rights in S and Marper v UK (application nos. 30562/04 and 30566/04), to the effect that the House of Lords, Baroness Hale excepted, had erred in regarding the taking of DNA samples as not engaging Article 8 at all. One has to have clearly in mind that in Pretty v the United Kingdom (application no. 2346/02) the court found that private life included “the protection of physical and psychological integrity” and that in YF v Turkey (application no. 24209/94) they spoke again of private life including “the physical and psychological integrity of a person” and that “a person’s body concerns the most intimate aspect of private life”. Simply counting the number of friends that a person has in the United Kingdom is not how one establishes whether they have a private life. To remove an AIDS sufferer from free care and treatment in one of the best health services in the world, which had rescued her from what would otherwise have been a terminal condition, would have seemed to me, at least unless argument persuaded me otherwise, to have been a clear interference with her physical and psychological integrity and thus an invasion of her private life requiring justification.

I am not therefore content to approach this appeal, as we would have been invited to do by the respondent, on the basis that the point is academic. If the appeal point, to which I now come, were to succeed we would have needed to hear full argument on the engagement of Article 8. But the critical question for the present is whether the interference with the appellant’s private life which removal would at least putatively involve is proportionate. The AIT has found that it would be and has given -- if I may say so -- compelling reasons for so finding. I have quoted their conclusion, but it needs to be said that the conclusion follows a punctilious analysis of the medical evidence showing how what began as a critical condition in 2001 rendering the appellant unfit for a long time even to travel had by the end of 2007 been so stabilised that the appellant was now fit to travel. The question was then whether in Zambia she would find herself without support, resources or access to medication. The AIT, for reasons they spelt out in a detail which it is not necessary to reproduce here and which they summarised in paragraph 56 which I have quoted, considered that she would have all three. It is only if they were precluded from embarking on this enquiry by the finding in paragraph 17 of the first Immigration Judge’s determination that it can be challenged. Mr Schwenk has squarely faced up to that difficulty.

In my judgment, however, the AIT’s fact finding was not constrained by that particular finding of the Immigration Judge. While Latham LJ’s guidance in DK, para 22, needs to be kept well in mind by tribunals conducting reconsiderations it cannot in the nature of things constitute a bright-line rule. In Mukarkar v SSHD [2006] EWCA Civ 1045, to which the court referred in DK (Serbia), I think it fair to say that this court was dealing with a larger question of law. Here it was in my view neither impermissible nor unfair for the AIT to supplement Dr Baggaley’s authoritative evidence, which they did not doubt any more than the Immigration Judge had done, with further evidence and findings equally relevant to the proportionality of returning the appellant to Zambia.

These findings included not only Dr Ahmad’s evidence of a sustained improvement in the appellant’s wellbeing but a re-evaluation of what awaited her in Zambia. This was prompted and informed by a reappraisal of her credibility, arising, as I have indicated, from the late introduction of material which demonstrated, in the AIT’s judgment, a preparedness to take liberties with the truth which cast much doubt on the difficulties which the appellant continued to assert would attend any return to Zambia. In short the AIT concluded that she would, contrary to her evidence, have familial and financial support and so be considerably better placed than many Zambians to continue with the therapy she undoubtedly needs to sustain her health and prolong her life. Against this the AIT were entitled to weigh, as they did, the absence of any family life here and the relative paucity of her private life. Insofar as they may have understated the latter it seems to me that whatever they had made of it could not have brought the human rights claim to the level required by the jurisprudence of the House of Lords and the European Court of Human Rights in the N case if removal was to be successfully opposed.

For those reasons, and notwithstanding the endeavour of Mr Schwenk to make as much as he could of the favourable passage of the first Immigration Judge’s determination, I would for my part dismiss this appeal.

I entirely agree.

I agree with all aspects of the judgment of Sedley LJ. Specifically I share his doubts as to whether the AIT was right to say that Article 8 was not even engaged in this case. However, their finding on proportionality was plainly sustainable and the appeal fails in any event on that basis.