Region: Europe
Year: 2004
Court: Immigration Appeal Tribunal
Health Topics: Health care and health services, HIV/AIDS, Infectious diseases, Medicines, Mental health
Human Rights: Freedom from torture and cruel, inhuman or degrading treatment, Right to family life, Right to health, Right to privacy
Tags: Access to drugs, Access to medicines, Access to treatment, AIDS, Antiretrovirals, ARVs, Asylum, HIV, HIV positive, Immigration, Mental illness, Migrants, Military, Militias, People living with HIV/AIDS, PLHIV, Rape, Refugees, Sexual assault
This case concerns an adjudicator’s review of the deportability of a Rwandan national infected with HIV in the UK.
The claimant was a Rwandan, who in June 2001 was raped by soldiers in her home and took her husband. The incident arose out of the 1994 Rwandan genocide, in which her husband was a member of the Interhamve who carried out much of the slaughter. The claimant made her way to the UK, and she was found to be HIV positive.
The adjudicator dismissed the asylum claim but granted her stay on grounds of Article 3 of the European Convention on Human Rights. The adjudicator did not grant asylum as there was “no evidence that she was of continuing adverse interest to the authorities.” He granted her stay based on human rights grounds due to her health conditions. He found her in extremely poor health, HIV positive, and in need of mental health that may not have been available in Rwanda. He also cited a United Nations Development Programme report that noted that poor HIV positive people could not afford treatment due to high costs for anti-retroviral drugs.
The Court held that the claimant had no human rights ground for a stay and granted the appeal from the Secretary of State.
The Tribunal held that the Adjudicator misunderstood the standard under Article 3 of the ECHR (freedom from torture and inhumane or degrading treatment and punishment). It does not guarantee a right to health. Claimants relying on a stay due to serious illness have a high threshold under Article 3. Claimants must show their case to be extreme and exceptional. The Tribunal used the Court of Appeals case of N to develop the standard. Applicant N had “full-blown” AIDS, was simultaneously suffering from a form of cancer, and had a life expectancy of less than a year. The claimant in this instance had a life expectancy of between one and two years and was not battling other illnesses at the time.
The Tribunal also ruled that the Adjudicator erred in several ways regarding the claimant’s mental health. First, the Tribunal noted that there was no medical evidence about the severity of the claimant’s mental problems and that the adjudicator’s comments were based on pure speculation. Second, the adjudicator noted that there was primary level care for severe mental disorders and did not explain why the claimant may need more intense treatment than was available. The Tribunal considered the adjudicator’s substitution of speculation for evidence an error of law.
The Tribunal also determined that the adjudicator did not use appropriate evidence in regards to anti-retroviral drug prices in Rwanda. He used figures from a 2001 UNDP report suggesting that HIV treatment may be unaffordable, while ignoring 2002 evidence provided from the pharmaceutical company Glaxo Smith Kline that stated drug prices were brought down to $1 a day.
Finally, the Tribunal noted that the claimant had family that could support her in Rwanda, even if she didn’t want to rely on them. While the issue was not raised, the Tribunal noted that a claim based on Article 8 (the right to respect for privacy and home life) would not apply as it required a showing of “flagrant denial or nullification” of the right for relief to be granted in such a case.
“[I]n cases based on a claim of a serious threat to physical and moral integrity posed by serious illness, the threshold set by Article 3 is high and it is necessary to show that one's case is extreme and exceptional.” (Para. 8).
“However, there was no medical evidence concerning the extent of the claimant's mental and psychological problems. The Adjudicator's reference to serious mental health problems rested on pure speculation. His substitution of speculation for firm evidence constituted an error of law.” (Para. 10).
“Not only was this mere speculation on the part of the Adjudicator, but he effectively treated Article 3 as guaranteeing a right to health. However, as the European Court of Human Rights has clarified in SSC v Sweden [2000] 29 EHRR CD 245, neither Article 3 nor any other provision of the ECHR guarantees a right to health. What the Adjudicator failed to do was explain why he considered the available facilities for treatment of mental health in Rwanda, even if of lesser quality than she would enjoy in the UK, would be so ineffective as to seriously threaten her physical and moral integrity.” (Para. 12).