New hope for HIV+ migrants in UK

The test at Paragraph 94 of the N judgement was articulated as being that it must be shown that the applicant’s medical condition has reached such a critical state, that there are compelling humanitarian grounds for not removing him or her to a place which lacks the medical and social services which he or she would need to prevent acute suffering. The test that has to be met is that the applicant is so ill that it would be inhumane to deprive them of the treatment they are receiving.

The Home Office adopted the high threshold and, subsequently, it has been the case that only very rare cases will meet such a threshold that to return them to the country of origin would be said to breach their rights under Article 3 of the European Convention of Human Rights (the guaranteed right to freedom from torture, inhumane and degrading treatment).

This test has been a particularly harsh obstacle to overcome for those suffering with HIV and dependent on anti-retroviral medication, which is unavailable to them in their country of origin, a problem encountered by a high number of HIV-positive Zimbabweans living in the UK.

However, in a recent Court of Appeal case, JA (Ivory Coast) & ES (Tanzania) v SSHD [2009] EWCA Civ 1353, we can start to see a more measured approach start to emerge and a way around, if not over, the high bar set in the N judgement.

There is, firstly, an important distinction to be made in this case. Both JA and ES, had previously been granted leave to remain on the basis of their medical treatment. The Court of Appeal drew a key distinction between cases such as N and cases where the applicant had previously been granted leave to remain on the basis of their medical condition.

Crucially, the legal submissions in this case were made, not on the basis of Article 3, the threshold for which, as explained above, is incredibly high in medical treatment cases, but rather on Article 8, the qualified right to private and family life.

At Danielle Cohen Solicitors, we have been making successful submissions on the basis of Article 8 for HIV-positive clients for a long time in both applications for discretionary leave to remain and in appeals. It is encouraging for us to see this approach being successful in the higher courts.

Unlike Article 3, the United Kingdom is allowed to interfere with a persons rights under Article 8 but only in limited circumstances and any interference must be proportionate.

In immigration cases, it is open to the Secretary of State to argue that interference is in accordance with the law as it is for the purpose of maintaining immigration control. However, just because the purpose is legitimate, it must still be shown that the action is proportionate to the stated purpose.

Judging proportionality in such cases is essentially a balancing exercise. The judge must weigh up the arguments of the appellant and of the Secretary of State to decide whether the decision is a proportionate interference with Article 8 rights.

The distinction of the appellants legality goes to the heart of this proportionality issue. Remaining in the UK legally, adds weight and makes it less likely that interference will be proportionate. Other factors that may add weight are family connections and other ties to the UK, activities engaged in the UK, character of the appellant and the state of the country of origin.

Unlike Article 3, Article 8 is not absolute. It invites room for negotiation and balancing of competing interests. While this may seem riskier, it allows for consideration of wider circumstances.

There are considerable numbers of migrants who have in the past been granted leave to remain on the basis of their HIV status and who may be concerned about the prospect of future applications for further leave being refused. This can offer some hope of a way forward.