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Court of Appeal
Published: March 9, 2015
GS (India) v Secretary of State for the Home Department
EO (Ghana) v Same
GM (India v Same
PL (Jamaica) v Same
BA (Ghana) v Same
KK (Democratic Republic of Congo) v Same
Before Lord Justice Laws, Lord Justice Sullivan and Lord Justice Underhill
Judgment January 30, 2015
Failed asylum seekers who were suffering from terminal illnesses or diseases but not on their deathbeds were not such exceptional cases that return to their countries of origin would amount to inhuman treatment.
The Court of Appeal so stated, inter alia, when dismissing the appeals of five failed asylum seekers (GS, EO, PL, BA and KK) and allowing the appeal of the sixth (GM) against decisions of the Upper Tribunal (Immigration and Asylum Chamber) on dates between July 23, 2012 and March 14, 2013, to confirm removal directions issued by the Secretary of State for the Home Department.
The claimants contended that removal would be in breach of their rights not to be subject to inhuman treatment and to respect for their family lives under, respectively, articles 3 and 8 of the European Convention on Human Rights.
Ms Nathalie Lieven, QC, for GS and EO, with Mr Declan O’Callaghan and Ms Jacqueline Lean for GS and with Ms Miriam Carrion Benitez for EO; Mr Raza Husain, QC and Mr Duran Seddon for GM, PL and BA, with Ms Gemma Loughran for PL and with Ms Rebecca Chapman for BA; Mr Manjit Gill, QC and Ms Shazia Khan for KK; Ms Lisa Giovannetti, QC and Ms Lisa Busch for the secretary of state.
LORD JUSTICE LAWS said that the language of article 3 showed that the paradigm case of a violation was an intentional act which constituted torture or inhuman or degrading treatment or punishment. The case of a person whose life would be drastically shortened by the progress of natural disease if he was removed to his home state did not fall within the paradigm of article 3. Such a case therefore could only succeed under that article to the extent that it fell to be enlarged beyond the paradigm.
The European Court of Human Rights and the House of Lords had accepted a degree of enlargement to article 3: see D v United Kingdom (Application No 30240/96) (The Times May 12, 1997; (1997) 24 EHRR 423) and N v United Kingdom (Application No 26565/05) (The Times June 6, 2008; (2008) 47 EHRR 39); N v Secretary of State for the Home Department (The Times May 9, 2005; [2005] 2 AC 296).
There was no tension, let alone inconsistency, between the approach of the House and the approach of the European court.
The view of the House of Lords was that the exception to the paradigm was confined to deathbed cases.
That result was all of a piece with the repeated statements in the European court that “aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a contracting state in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling state.” (N v United Kingdom, at paragraph 42.)
None of the present claimants fell within the kind of exceptional case addressed in those cases. Their plight, however grave, could not be alleviated by recourse to article 3.
As to the article 8 claims, a specific case had to be made and if the point had in terms not been pursued in the tribunal below the court had no jurisdiction to entertain it.
LORD JUSTICE UNDERHILL agreeing on article 3, said that the obstacle to entertaining article 8 claims was not one of lack of jurisdiction since section 13 of the Tribunals, Courts and Enforcement Act 2007 permitted the Court of Appeal to entertain an appeal on the basis of a point of law not raised below. Rather his Lordship would exclude the article 8 arguments as a matter of discretion.
LORD JUSTICE SULLIVAN agreeing, said that he agreed with Lord Justice Underhill on the article 8 point.
Solicitors: Jasvir Jutla & Co Solicitors, Leicester; Irving & Co Solicitors; Birnberg Peirce & Partners; Turpin Miller LLP, Reading; Hardings Solicitors; Parker Rhodes Hickmotts, Leeds; Treasury Solicitor.