EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 30240/96

                                  D.

                                against

                          the United Kingdom

                       REPORT OF THE COMMISSION

                     (adopted on 15 October 1996)

                           TABLE OF CONTENTS

                                                                 page

I.    INTRODUCTION

      (paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-15). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 21-41). . . . . . . . . . . . . . . . . . . . . . . . 4

      A.   Particular circumstances of the case

           (paras. 21-32) . . . . . . . . . . . . . . . . . . . . . 4

      B.   Relevant domestic law and practice

           (paras. 33-37) . . . . . . . . . . . . . . . . . . . . . 6

      C.   Other relevant materials

           (paras. 38-41) . . . . . . . . . . . . . . . . . . . . . 7

III.  OPINION OF THE COMMISSION

      (paras. 42-74). . . . . . . . . . . . . . . . . . . . . . . . 8

      A.   Complaints declared admissible

           (para. 42) . . . . . . . . . . . . . . . . . . . . . . . 8

      B.   Points at issue

           (para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8

      C.   As regards the proposed expulsion of the applicant

           (paras. 44-64) . . . . . . . . . . . . . . . . . . . . . 8

           CONCLUSIONS

           (paras. 62-64) . . . . . . . . . . . . . . . . . . . . .13

      D.   As regards Article 13 of the Convention

           (paras. 65-70) . . . . . . . . . . . . . . . . . . . . .13

           CONCLUSION

           (para. 70) . . . . . . . . . . . . . . . . . . . . . . .14

      E.   Recapitulation

           (paras. 71-74) . . . . . . . . . . . . . . . . . . . . .14

                           TABLE OF CONTENTS

                                                                 page

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY,

MM. E. BUSUTTIL, A. WEITZEL, J.-C. SOYER,

I. BÉKÉS, G. RESS AND C. BÎRSAN . . . . . . . . . . . . . . . . . .15

PARTIALLY DISSENTING OPINION OF MR. J.-C. GEUS,

JOINED BY MRS. G.H. THUNE, M.P. PELLONPÄÄ,

B. MARXER AND N. BRATZA . . . . . . . . . . . . . . . . . . . . . .18

APPENDIX:  DECISION OF THE COMMISSION AS TO THE

           ADMISSIBILITY OF THE APPLICATION .  . . . . . . . . . . 19

I.    INTRODUCTION

1.    The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2.    The applicant is a citizen of St. Kitts born in 1960 and

currently held in detention pending removal. He is represented by

Mr. Alan Simmons of the AIRE Centre, London.

3.    The application is directed against the United Kingdom.  The

respondent Government are represented by Mr. Martin Eaton as Agent,

from the Foreign and Commonwealth Office.

4.    The case concerns the complaints of the applicant that the

proposed removal from the United Kingdom to St. Kitts places him at

risk of reduced life expectancy, of inhuman and degrading treatment and

an invasion of his physical integrity since he is suffering from AIDS

and he will be exposed to a lack of adequate medical treatment and

living conditions. The application raises issues under Articles 2, 3, 8

and 13 of the Convention.

B.    The proceedings

5.    The application was introduced on 15 February 1996 and registered

on 16 February 1996. On 16 February 1996, the respondent Government

provided assurances that the applicant would not be expelled pending

the Commission's examination of the case.

6.    On 8 March 1996, the Commission decided to communicate the

application to the Government inviting them to submit observations on

the admissibility and merits. It decided that the case should be given

priority pursuant to Rule 33 of the Commission's Rules of Procedure.

7.    On 29 March 1996, the Government submitted their observations and

on 11 April 1996 the applicant submitted his observations in reply.

8.    On 18 April 1996, the Commission decided to invite the parties

to make submissions at an oral hearing.

9.    On 13 June 1996, the applicant submitted further observations and

documents.

10.   At the oral hearing, held on 26 June 1996, the Government were

represented by Mr. M. Eaton, Agent, Mr. N. Garnham, Counsel,

Ms. S. McClelland, Mr. S. Hewett and Mr. P. Goulder, Advisers from the

Home Office and Sir Franklin Berman, Legal Adviser, Foreign and

Commonwealth Office. The applicant was represented by Mr. N. Blake,

Q.C, Counsel, Mr.     L. Daniel, counsel, Ms. N. Mole and Ms. Holt as

legal advisers and Ms. N. Rogers and Ms. B. Kryszko as legal

assistants.

11.   On 26 June 1996, the Commission declared the application

admissible.

12.   The parties were then invited to submit any additional

observations on the merits of the application.

13.   On 17 July 1996, the President of the Commission decided to

indicate to the United Kingdom Government in accordance with Rule 36

of the Commission's Rules of Procedure, that it was desirable in the

interests of the Parties and the proper conduct of the proceedings that

the applicant not be removed meanwhile from the United Kingdom.

14.   On 12 August 1996, the parties submitted further observations.

15.   After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case.  In the light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C.    The present Report

16.   The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

           Mr.   S. TRECHSEL, President

           Mrs.  G.H. THUNE

           Mrs.  J. LIDDY

           MM.   E. BUSUTTIL

                 G. JÖRUNDSSON

                 A. WEITZEL

                 J.-C. SOYER

                 F. MARTINEZ

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 C. BÎRSAN

                 E. BIELIUNAS

17.   The text of the Report was adopted by the Commission on

15 October 1996 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

18.   The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

      1)  to establish the facts, and

      2)  to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

19.   The Commission's decision on the admissibility of the application

is annexed hereto.

20.   The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.   ESTABLISHMENT OF THE FACTS

A.    Particular circumstances of the case

21.   The applicant was born in St. Kitts and appears to have lived

there most of his life. He was one of seven children to the family. One

sister and brother moved to the United States in the 1970's and the

rest of the family appears to have followed them at unspecified dates.

The applicant visited the United States in 1989 to try to join his

mother and brothers and sisters. He was convicted however on a drugs

offence and received a custodial sentence of 3 years 2 months plus

3 years 10 months suspended. After one year, he was paroled for good

behaviour and deported to St. Kitts.

22.   The applicant arrived in the United Kingdom on 21 January 1993.

He was found in possession of prohibited drugs (cocaine) and refused

leave to enter. He was however remanded in custody and prosecuted. On

10 May 1993, following his plea of guilty, he was convicted of being

knowingly concerned in fraudulent evasion of the prohibition on the

importation of a controlled drug and sentenced to six years'

imprisonment. On 24 January 1996, he was released on licence.

23.   In August 1994, while serving his sentence, the applicant

suffered an attack of pneumocystis carinii pneumonia and was diagnosed

as HIV positive and as suffering from AIDS. Since August 1995, his

T4 cell count has been below 10. He is in the advanced stages of the

illness, suffering from recurrent anaemia, bacterial chest infections,

malaise, skin rashes, weight loss and periods of extreme fatigue.

24.   In late 1994, the applicant applied for compassionate home leave

to visit his mother. The request was granted on 3 March 1995 and the

applicant was granted a period of leave for a family visit to his

mother who was present on holiday in the United Kingdom.

25.   On 20 January 1996, immediately prior to his release on licence,

the immigration authorities gave directions for the applicant's removal

to St. Kitts.

26.   By letter dated 23 January 1996, the applicant's solicitors

requested that the Secretary of State grant the applicant leave to

remain on compassionate grounds. This request was refused on

25 January 1996 by the Chief Immigration Officer. On 2 February 1996,

the applicant applied unsuccessfully to the High Court for judicial

review of the refusal  of leave to enter. On 15 February 1996, the

Court of Appeal dismissed his renewed application for leave. It found

that section 3 of the Immigration Act 1971 drew a distinction between

leave to enter and leave to remain. It held that the Chief Immigration

Officer had correctly treated the applicant's application as an

application for leave to enter and was not required to take into

account paragraph 5 of the Home Office guidelines which applied to

applications for leave to remain (see Relevant domestic law and

practice para. 37 below). As regarded the applicant's argument that the

Home Office acted unreasonably or irrationally in not acceding to the

compassionate circumstances of his plea, the Court stated:

      "Nobody can but have great sympathy for this applicant and the

      plight in which he finds himself. If he is to return to St. Kitts

      he will be unable to work and to receive medical treatment. In

      many ways his plight would be great. On the other hand he

      wouldn't be here if he hadn't come on a cocaine smuggling

      expedition back in 1993 and he would have gone back to St. Kitts

      long before his AIDS diagnosis. Taking into account the Court

      must give the most anxious scrutiny to cases where life

      expectancy is involved nevertheless I cannot find any grounds,

      it seems to me the decision was well within the bounds of

      discretion..."

27.   By letter dated 15 January 1996, Dr. Evans, a consultant doctor

stated:

      "His current treatment is AZT 250 mgs. b.d. and monthly nebulised

      pentamidine, he occasionally takes mystatin pastilles and skin

      emollients.

      In view of the fact that has now had AIDS for

      over 18 months and because this is a relentlessly progressive

      disease his prognosis is extremely poor.

      In my professional opinion life expectancy

      would be substantially shortened if he were to return to

      St. Kitts where there is no medication; it is important that he

      receives pentamidine treatment against PCP and that he receives

      prompt anti-microbial therapy for any further infections which

      he is likely to develop..."

28.   By letter dated 20 April 1995, the High Commission for the

Eastern Caribbean States informed the doctor treating the applicant in

prison that the medical facilities in St. Kitts did not have the

capacity to provide the medical treatment that he would require. This

was in response to a faxed enquiry of the same date by Dr. Hewitt, the

managing medical officer at H.M. Prison  Wayland. By letter of

24 October 1995, Dr. Hewitt informed the Home Office of the contents

of the letter from the High Commission, which had also been sent to the

Parole Unit on 1 May 1995. He stated that the necessary treatment was

not available in St. Kitts but was widely and freely available in the

United Kingdom and requested due consideration be given to lifting the

deportation order in respect of the applicant.

29.   By letter dated 5 February 1996, the Antigua and Barbuda Red

Cross informed those acting on behalf of the applicant that they had

consulted their officer on St. Kitts who stated that there was no

health care providing for drugs treatment of AIDS.

30.   In a medical report provided on 13 June 1996, Professor Pinching

stated that the applicant had suffered severe and irreparable damage

to his immune system and was extremely vulnerable to a wide range of

specific infections and to the development of tumours. The applicant

was reaching the end of the average durability of effectiveness of the

drug therapy which he was receiving. It was stated that the applicant's

prognosis was poor and limited to 8-12 months.  It was estimated that

withdrawal of the proven effective therapies and of proper medical care

would reduce that prognosis to less than half of what would be

expected.

31.   By letter dated 1 August 1996,the High Commission for the Eastern

Caribbean States confirmed that the position in St. Kitts had not

changed since their letter of 20 April 1995.

32.   The applicant is currently in immigration detention.

B.    Relevant domestic law and practice

33.   By section 3 of the Immigration Act 1971 a person who is not a

British citizen shall not enter the United Kingdom unless given leave

to do so. The power to grant leave lies with the Immigration Officers

(section 4). By section 4 (1) of the 1971 Act the power to grant leave

to remain in the United Kingdom is exercisable by the Secretary of

State.

34.   There is a distinction in law and practice between leave to enter

and leave to remain. A person, such as the applicant, who has been

refused leave to enter but has remained physically in the United

Kingdom,  cannot make an application for leave to remain but must make

a further application for leave to enter.

35.   The Home Office policy document BDI 3/95 provides guidance to

staff on how to proceed in cases involving those suffering from AIDS

or who are HIV positive. This policy distinguishes between applications

for leave to enter and applications for leave to remain.

36.   On applications for leave to enter (para. 4 of the guidelines),

where the person is suffering from AIDS, the policy and practice is to

adhere to the provisions of the Immigration Rules in the normal way.

Where such a person does not qualify under the Rules, entry is refused.

37.   On applications for leave to remain (para. 5 of the guidelines),

the application should be dealt with normally on its merits under the

applicable Rules. However, there is a discretion outside the Rules

which can be exercised in strong compassionate circumstances. Paragraph

5.4 states that "... there may be cases where it is apparent that there

are no facilities for treatment available in the applicant's own

country. Where evidence suggests that this absence of treatment

significantly shortens the life expectancy  of the applicant it will

normally be appropriate to grant leave to remain."

C.    Other relevant materials

38.   The following documentary materials have been submitted by the

applicant.

      1.   Extract, "Health Conditions in the Americas," 1994 Volume

           II, concerning St. Kitts

           "Health and Living Conditions

      ...there are a number of serious environmental problems, such as

      inadequate disposal of solid and liquid waste - especially

      untreated sewage - into coastal lands and waters, resulting in

      coastal zone degradation, fish depletion and health problems

      (gastro-enteritis)..."

      According to this publication, there are two general hospitals

in St. Kitts, one with 174 beds and the other with 10.

      2.   Treatment issues - a basic guide to medical treatment

           options for people with HIV and AIDS" produced April 1996

           by the Terence Higgins Trust

39.   This describes the three medical strategies available for

treating HIV and AIDS: using anti-HIV drugs which attack HIV itself to

delay or prevent damage to the immune system, treating or preventing

opportunistic infections which take advantage of damage to the immune

system and strengthening and restoring the  immune system. Amongst the

first category, several drugs can be used, including AZT (also known

as zidovudine or its tradename retrovir). This belongs to a family of

drugs called nucleoside analogues which inhibit an enzyme produced by

HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot

infect new cells and the build up of virus in the body is slowed down.

However, the existing drugs are only partially effective and at best

can only delay the worsening of HIV-related disease rather than prevent

it.

40.   As regards the second category, persons whose immune systems have

been significantly damaged are vulnerable to a range of infections and

tumours known as opportunistic infections. These commonly include

cytomegalovirus (herpes virus), kaposi's sarcoma, anaemia,

tuberculosis, toxiplasmosis and pneumocystis carinii pneumonia (PCP).

PCP is a form of pneumonia which in people with HIV may affect the

lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps

to avoid such infections include taking care with food and drink and

prophylactic treatment by drugs. In the case of PCP which was a common

cause of death during the first years of the epidemic and is still one

of the commonest AIDS illnesses, options include the long term taking

of antibiotics such as co-trimoxazole and the use of nebulised

pentamidine which is intended to protect the lungs.

41. In relation to the third category, treatment which strengthens or

restores the immune system, research has yet to produce any clear

results.

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

42.   The Commission has declared admissible the applicant's complaints

that his removal from the United Kingdom to St. Kitts places him at

risk of a reduced life expectancy, of inhuman and degrading treatment

and of an invasion of his physical integrity since he is suffering from

AIDS and he will be exposed to a lack of adequate medical treatment and

living conditions. It also declared admissible his allegation that he

did not have an effective remedy for his complaints.

B.    Points at issue

43.   The issues to be determined in the present case are:

      - whether the proposed expulsion discloses a violation of

      Articles 2, 3 and/or 8 (Art. 2, 3, 8) of the Convention;

      - whether there is a violation of Article 13 (Art. 13) of the

      Convention in respect of an alleged lack of effective remedy

      before a national authority in respect of the proposed expulsion.

C.    As regards the proposed expulsion of the applicant

44.   The applicant, who is suffering from AIDS, has invoked a number

of provisions of the Convention in relation to the drastic and

inevitable risks to his health and life-expectancy and the conditions

which he will face if he is expelled from the United Kingdom to

St. Kitts where there is no drug treatment for AIDS and limited medical

facilities, where there are problems of public sanitation and hygiene

and where he has no prospect of family support, employment or

accommodation.

45.   The relevant provisions of the Convention provide:

                          Article 2 (Art. 2)

      "1.  Everyone's right to life shall be protected by law.  No one

      shall be deprived of his life intentionally save in the execution

      of a sentence of a court following his conviction of a crime for

      which this penalty is provided by law. ..."

                          Article 3 (Art. 3)

      "No one shall be subjected to torture or to inhuman or degrading

      treatment or punishment."

                          Article 8 (Art. 8)

      "1.  Everyone has the right to respect for his private

      ...life...

      2.   There shall be no interference by a public authority with

      the exercise of this right except such as is in accordance with

      the law and is necessary in a democratic society in the interests

      of national security, public safety or the economic well-being

      of the country, for the prevention of disorder or crime, for the

      protection of health or morals, or for the protection of the

      rights and freedoms of others."

46.   The applicant submits that the Government's responsibility is

engaged in respect of the consequences which will ensue from his

removal to St. Kitts. Where it is clear that the consequences of

removal are of such a severity, it is no justification that the

anticipated effect occurs outside the United Kingdom. Nor is it

necessary that a third State would be in breach of obligations in

respect of that effect before the United Kingdom's responsibility could

be engaged.

47.   The applicant submits that to remove him to a country where he

will be denied medical treatment necessary to control the development

of his illness constitutes a withdrawal of treatment and a deprivation

of medical and social protection which is in violation of his right to

life. The medical reports indicate that there is a real risk that his

already short life expectancy will be shortened even further as a

result of the lack of medication and of poor sanitation, which makes

it more likely that he will contract an infection which will be fatal,

and the lack of accommodation or means to support himself.

48.   Under Article 3 (Art. 3), the applicant submits that his

threatened removal in circumstances where he will be deprived of proper

medical care with resulting deterioration in his health, causing him

severe physical and mental suffering, constitutes treatment contrary

to this provision. The applicant further argues that the risk to his

physical integrity from the removal constitutes a violation of his

right to respect for his private life as guaranteed under Article 8

(Art. 8) of the Convention, the effect on his health being

disproportionate to any legitimate aim of immigration control.

49.   While the Government accept that St. Kitts will not be able to

provide the applicant with the level of care available in the United

Kingdom, they submit that the United Kingdom has no continuing

responsibility for the applicant's health. They point out that the

applicant had no right either to enter or remain in the United Kingdom

and that he attempted to enter the country for the purpose of bringing

in a dangerous drug. The fact that he served a term of imprisonment

cannot impose on the United Kingdom an obligation to provide him with

health care for the rest of his life. Nor can United Kingdom

responsibility be engaged in respect of events which take place outside

its jurisdiction. Responsibility under the Convention could only arise

were the applicant to risk being subjected to treatment in St. Kitts

which would, if done by a State Party to the Convention, be in breach

of the provisions of the Convention. The fact that St. Kitts does not

have the medical facilities or resources to prolong the life of an AIDS

sufferer does not disclose any breach of the provisions invoked by the

applicant.

50.   The Government further submit that Article 2 (Art. 2) cannot be

interpreted so as to impose a positive obligation to take positive

steps to preserve life, such as to provide medical care generally to

those within its jurisdiction. They emphasise that it is the "right to

life" not life itself which is to be protected by law. In any event it

is not the expulsion which will shorten his life expectancy: the

applicant's life is threatened by disease and it is paucity of

treatment in St. Kitts which will shorten the applicant's life. The

Government submit under Article 3 (Art. 3) of the Convention that even

if the applicant would face increased anguish and mental suffering on

his return, this does not disclose treatment of the minimum level of

severity required by Article 3 (Art. 3). The applicant faces the

consequences of a natural disease which cannot in any event be cured

in the current state of medical knowledge and if removed he would face

that prospect in the country where, but for the commission of a serious

criminal offence, he would have lived throughout. Removing the

applicant to a country less well equipped to provide medical care than

the Contracting State also involves no direct interference with

physical integrity contrary to Article 8 (Art. 8). There is no positive

obligation to continue to provide him with care within the United

Kingdom having regard in particular to the wide margin of appreciation

in immigration matters and the circumstances which placed the applicant

in the position of receiving medical care from domestic medical

facilities.

51.   The Commission notes, first of all, that it is not disputed that

the applicant's life expectancy, which is short, will be further

reduced if he is sent back to St. Kitts. The Government have not

challenged that this will be the result of the unavailability of the

AIDS treatment which he is currently receiving in the United Kingdom.

Notwithstanding however that there is an established risk that the

applicant will die from his illness at an earlier date if removed than

if he is not removed, the Commission does not find it necessary to

decide whether this discloses a lack of respect for the right to life

pursuant to Article 2 (Art. 2) of the Convention. It notes that there

is no precedent for treating the risk to life-expectancy itself as

falling within the scope of this provision, such other cases as have

been declared admissible under Article 2 (Art. 2) of the Convention

concerning factual circumstances where death has occurred or at least

injury or illness caused as a result of matters for which the

Government may be responsible (eg. No. 23414/94, dec. 28.11.94,

D.R. 83-A p. 31 concerning complaints by the child of nuclear test

veteran who suffered leukaemia and No. 23452/94, dec. 17.5.96

concerning death and serious injury from an attack in respect of which

the police were allegedly negligent). There is no suggestion whatsoever

that the United Kingdom has any responsibility for or connection with

the applicant's infection, which appears to have occurred some time

before his arrival in the United Kingdom.

52.   Consequently, the Commission considers that the substance of the

applicant's complaints as to the risk to his life-expectancy are

inseparable from the allegations concerning the severity of the effect

on his health and welfare of the proposed removal under Article 3

(Art. 3) of the Convention and should be examined globally in the

context of that provision.

      Concerning State responsibility under Article 3 (Art. 3)

53.   The Convention case-law establishes that extradition or expulsion

by a Contracting State of an asylum-seeker may engage their

responsibility where substantial grounds have been shown for believing

that the person concerned faced a real risk of being subjected to

torture or to inhuman and degrading treatment or punishment in the

country to which he was returned (eg. Eur. Court H.R. Soering judgment

of 7 July 1989 Series A no. 161 and Vilvarajah and others judgment of

30 October 1991, Series A no. 215 p. 34 para. 103). Contrary to the

submissions of the Government above, the Commission observes that a

finding that such risk exists does not necessarily have to involve

liability of the receiving State or any public authority. The

Commission has previously taken account of the risk deriving from non-

Governmental sources. In the case of Ahmed v. Austria (No. 25964/94

dec. 2.3.95, Comm. Rep. 5.7.95 pending before the Court), it was

sufficient that the source of the risk came from those wielding

substantial power within the State, which was clearly the situation in

Somalia as regarded General Aideed. Similarly in H.L.R. v. France

(No. 24573/94, Comm. Rep. 7.12.95 pending before the Court) the risk

to the applicant was from the powerful and structured criminal

organisations in Colombia against whom it was more than likely the

Government of Colombia would be unable to offer adequate protection.

54.   Having regard to the principle that the object and purpose of the

Convention as an instrument for the protection of individual human

beings require that its provisions be interpreted and applied so as to

make its safeguards practical and effective (see eg. Soering judgment

loc. cit. p. 34 para. 87), the Commission finds that exposure to a real

and substantiated risk to health of such severity as to fall within the

ambit of Article 3 (Art. 3) which derives from other factors in the

receiving State, including lack of medical care or facilities, social

or environmental circumstances, may also engage the responsibility of

the expelling State (see eg. No. 23634/94 dec. 19.5.94 D.R.77-A p. 133

and Nasri v. France, No. 19465/92 Comm. Rep. 10.3.94 Series A no. 320

in which the sensory and social isolation to which the deaf and dumb

applicant would be exposed on expulsion to Algeria was found by the

majority of the Commission to disclose inhuman treatment).

55.   In the present case, the Commission recalls that the Government

submit that the applicant is not in fact subject to a measure of

expulsion as such, but has been refused leave to enter and is in the

same position in domestic law as any person suffering from AIDS who

might be seeking leave to enter the United Kingdom. The Commission

notes that this is the approach to domestic law adopted by the United

Kingdom immigration authorities and the courts. However, the Commission

considers that this is an artificial and technical construction in this

case which fails to take into account the fact that the applicant was

present in the United Kingdom for over three years under the

responsibility of the authorities who prosecuted and imposed a sentence

of imprisonment on him. The artificiality of the situation is

highlighted by the consideration that if the applicant had been

arrested outside the airport in possession of the drugs he would have

been subject to the same criminal measures but a different approach

would have had to be adopted to his removal by the immigration

authorities.

56.   The Commission finds therefore that the applicant has been

present in the United Kingdom for a significant period of time as a

result of measures undertaken by the authorities and pursuant to which

they have had the responsibility for his health care and he has become

dependent on the provision of drug treatment for his condition. The

Commission notes that Government accepted at the oral hearing that a

denial of health care to the applicant while he was in prison would

probably have given rise to responsibility under the Convention and to

a violation. In these circumstances, the proposed removal from the

United Kingdom to St. Kitts cannot be considered comparable to the

refusal of entry to an alien seeking admittance at the border or

customs control. Consequently, the Commission considers that the

proposed removal from the United Kingdom will engage their

responsibility if there is a real and substantiated risk of the

applicant suffering treatment contrary to Article 3 (Art. 3) of the

Convention as a result.

57.   While the Commission recalls that the applicant has committed

serious drugs offences, it would observe that there is no indication

that his continued presence in the United Kingdom would pose a problem

of crime or public order. In any event, once the risk to an individual

of treatment contrary to Article 3 (Art. 3) has been established,

considerations of public order or immigration control cannot be weighed

in the balance so as to reduce the level of protection afforded under

the Convention (mutatis mutandis, No. 22414/93 Chahal family v. the

United Kingdom, Comm. Rep. 27.6.95, pending before the Court). The

guarantees of Article 3 (Art. 3) of the Convention are of an absolute

character, permitting no exception.

      As regards the risk of treatment contrary to Article 3 (Art. 3)

      of the Convention

58.   The Commission recalls that if the applicant returns to St. Kitts

he will no longer receive the drugs treatment of AZT which seeks to

inhibit the spread of HIV and slow the incidence of the opportunistic

infections to which AIDS sufferers are acutely vulnerable or of

nebulised pentamidine which protects against PCP, which is one of the

commonest AIDS illnesses. This, it is not contested, will render the

occurrence of life-threatening infections a probability within a short

period of time. The risk of infections is also aggravated by

shortcomings in public sanitation (see above 38).

59.   While there are two hospitals (174 and 10 beds respectively) on

St. Kitts, the available facilities for treating such infections are

limited. The applicant has submitted, and the Government have not

disputed, that the applicant has no close family members in St. Kitts

and that he has no accommodation or means of support there. There is

no ground on which to doubt the applicant's contention that he will

probably be homeless and without resources or support in the final

stages of a fatal illness. The Government have not sought, it would

note, any information from the St. Kitts' authorities as to any steps

which might be taken to alleviate the applicant's difficulties on his

return.

60.   The Commission is of the opinion that this situation will cause

the applicant a severe level of physical and mental suffering such as

to constitute inhuman treatment within the meaning of Article 3

(Art. 3). It also considers that it threatens to cause such anguish and

extreme incapacitation that will render him unable to maintain the most

basic human dignity as his illness runs its inevitably painful and

fatal course. This discloses a real risk of degrading treatment within

the meaning of Article 3 (Art. 3).

61.   In light of this finding, the Commission finds that no separate

issue arises in respect of the applicant's complaints in relation to

Article 8 (Art. 8).

      CONCLUSIONS

62.   The Commission concludes, by 11 votes to 7, that there would be

a violation of Article 3 (Art. 3) of the Convention if the applicant

were to be removed to St. Kitts.

63.   The Commisison concludes, unanimously, that it is unnecessary to

examine the complaint under Article 2 (Art. 2) of the Convention.

64.   The Commission concludes, unanimously, that no separate issue

arises under Article 8 (Art. 8) of the Convention.

D.    As regards Article 13 (Art. 13) of the Convention

65.   Article 13 (Art. 13) of the Convention provides:

      "Everyone whose rights and freedoms as set forth in this

      Convention are violated shall have an effective remedy before a

      national authority notwithstanding that the violation has been

      committed by persons acting in an official capacity."

66.   The applicant submits that judicial review fails to provide an

effective remedy in a case such as the present which relates to

decisions of the Secretary of State in an area where he is accorded a

very substantial discretion. Judicial review looks primarily at the

decision-making procedure and is not concerned with the substantive

merits of a decision. Here, the Immigration Rules treat the applicant

as a person seeking entry and require that leave is refused. The policy

of exceptional leave for AIDS sufferers only applies to those who have

entered the United Kingdom. There is no ground of legality on which to

challenge the decision, and the other bases of challenge, impropriety

or irrationality, do not require the courts to give consideration to

the terms of the Convention or any particular weight to the risk to the

applicant's rights. There has never been a case where the domestic

courts have quashed a lawful exercise of discretion on the grounds of

its consequences in interfering with fundamental rights protected by

the Convention.

67.   The Government submit that judicial review does furnish an

effective remedy. While the Convention is not incorporated into

domestic law, the courts will refer to it in order to resolve

ambiguities in primary or secondary legislation. The courts take the

approach that any restriction of a fundamental human right requires to

be justified by an important competing, public interest, the more

substantial the interference the more being required by way of

justification before they will be satisfied that the decision is

reasonable. On judicial review, the courts may overrule the Secretary

of State's discretion as unlawful on grounds of being tainted with

illegality, irrationality or procedural impropriety - a decision may

therefore be quashed if it is established for example that there was

a serious risk of inhuman treatment on the ground that no reasonable

Secretary of State could take such a decision.

68.   The Commission recalls that Article 13 (Art. 13) of the

Convention guarantees the availability of a remedy at national level

to enforce the substance of Convention rights and freedoms. This

requires the provision of a domestic remedy allowing a national

authority both to deal with the substance of the relevant Convention

complaint and to grant appropriate relief. Article 13 (Art. 13) cannot

be interpreted as requiring any particular form of remedy, Contracting

States being afforded a margin of discretion.  The fact that an

applicant has been unsuccessful in pursuing a remedy is not as such a

material factor, effectiveness not requiring any certainty of success

(see in particular Eur. Court H.R. Soering judgment of 7 July 1989,

Series A no. 161 p. 47 para. 120 and Vilvarajah and others judgment of

30 October 1991, Series A no. 21 p. 39 para. 122).

69.   The Commission notes that there was no dispute of fact before the

domestic courts as to the likely effects of a removal on the applicant.

The Court of Appeal had regard to the hardship that would result and

referred to the obligation on the court to give the most anxious

scrutiny to cases where life expectancy is involved before nonetheless

concluding that it found no grounds to grant relief. The Commission

considers that the domestic court examined the substance of the

applicant's Convention complaints and had the power, if it thought it

appropriate, to quash the impugned decision of the Secretary of State.

In these circumstances the Commission concludes that the applicant did

have available to him an effective remedy for his complaints as

required by Article 13 (Art. 13) of the Convention.

      CONCLUSION

70.   The Commission concludes, by 13 votes to 5, that there has been

no violation of Article 13 (Art. 13) of the Convention.

E.    Recapitulation

71.   The Commission concludes, by 11 votes to 7, that there would be

a violation of Article 3 (Art. 3) of the Convention if the applicant

were to be removed to St. Kitts (para. 62).

72.   The Commission concludes, unanimously, that it is unnecessary to

examine the complaint under Article 2 (Art. 2) of the Convention

(para. 63).

73.   The Commission concludes, unanimously, that no separate issue

arises under Article 8 (Art. 8) of the Convention (para. 64).

74.   The Commission concludes, by 13 votes to 5, that there has been

no violation of Article 13 (Art. 13) of the Convention (para. 70).

        H.C. KRÜGER                         S. TRECHSEL

         Secretary                           President

     to the Commission                    of the Commission

                                                        (or. English)

PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL,

A. WEITZEL, J.-C. SOYER, I. BÉKÉS, G. RESS AND C. BÎRSAN

      We acknowledge the tragic circumstances in which the applicant

finds himself and in respect of which strong, humanitarian

considerations might be appear to be competing with pragmatic policy.

Our task, however, is only to examine whether the applicant's

complaints disclose any failure on the part of the United Kingdom to

fulfill its obligations under the rights and freedoms guaranteed under

the Convention.

      The applicant has no claim to remain in the United Kingdom apart

from the circumstance that his illness was diagnosed while he was in

prison in the United Kingdom and he has been receiving treatment from

the United Kingdom health service which will not be available to him

on his return to St. Kitts. He was refused leave to enter the United

Kingdom and state that he has no ties of family or private life with

that country.

      As to whether this discloses a failure by the United Kingdom

under Article 2 of the Convention to ensure that "Everyone's right to

life shall be protected by law", we note that there is no precedent for

treating the risk to life-expectancy itself as falling within the scope

of this provision.  Such other cases as have previously been declared

admissible under Article 2 of the Convention have concerned factual

circumstances where death has occurred or at least injury or illness

caused as a result of matters for which the Government may be

responsible (eg. No. 23414/94, dec. 28.11.94, D.R. 83-A p. 31

concerning complaints by the child of nuclear test veteran who suffered

leukaemia and No. 23452/94, dec. 17.5.96 concerning death and serious

injury from an attack in respect of which the police were allegedly

negligent). There is no suggestion whatsoever that the United Kingdom

has any responsibility for or connection with the applicant's

infection, which appears to have occurred some time before his arrival

in the United Kingdom.

      As regards the extent to which the United Kingdom may be held

responsible, if at all, for the severe difficulties which will face the

applicant on his return to his own country in the final stages of a

fatal illness, there is no direct precedent. Convention case-law

establishes that extradition or expulsion by a Contracting State of an

asylum-seeker may engage their responsibility where substantial grounds

have been shown for believing that the person concerned faced a real

risk of being subjected to torture or to inhuman and degrading

treatment or punishment in the country to which he was returned

(eg. Eur. Court H.R. Soering judgment of 7 July 1989 Series A no. 161

and Vilvarajah and others judgment of 30 October 1991, Series A no. 215

p. 34 para. 103). Contrary to the submissions of the Government above,

a finding that such risk exists does not necessarily have to involve

liability of the receiving State or any public authority. The

Commission has previously taken account of the risk deriving from

non-Governmental sources. In the case of Ahmed v. Austria, it was

sufficient that the source of the risk came from those wielding

substantial power within the State, which was clearly the situation in

Somalia as regarded General Aideed (No. 25964/94 dec. 2.3.95, Comm.

Rep. 5.7.95 pending before the Court) while in H.L.R. v. France

(No. 24573/94, Comm. Rep. 7.12.95 pending before the Court) the risk

to the applicant was from the powerful and structured criminal

organisations in Colombia against whom it was more than likely the

Government of Colombia would be unable to offer adequate protection.

      As regards risk of physical or mental injury or suffering

deriving from medical, social or environmental factors, the Commission

has not excluded that a lack of proper care could in a case where

some-one is suffering from a serious illness amount to treatment

contrary to Article 3 (see eg. No. 23634/94 dec. 19.5.94 D.R.77-A

p. 133 where an applicant's allegations that if expelled he would risk

blindness due to lack of medical facilities in Ghana were found to be

unsubstantiated). It has also previously found that the sensory and

social isolation to which a deaf and dumb applicant would be exposed

on expulsion from France to Algeria disclosed the risk of inhuman

treatment contrary to Article 3 of the Convention (Nasri v. France,

No. 19465/92 Comm. Rep. 10.3.94 Series A no. 320 in which Court found

the point unnecessary to decide in light of its finding of a violation

of Article 8 of the Convention).

      We consider, however, that where, as in the present case, the

applicant is suffering from an illness in respect of which any

treatment given can at most delay its natural development the  scope

of responsibility of a Contracting State as regards the incidents of

that illness must necessarily be limited. In the present case, the

Government submit that the applicant is not in fact subject to a

measure of expulsion as such, but has been refused leave to enter and

is in the same position in domestic law as any person suffering from

AIDS who might be seeking leave to enter the United Kingdom. We note

that the applicant was on his arrival at Gatwick refused leave to enter

but since he was found in possession of drugs he was subject to

measures of the criminal law. While this resulted in the applicant

spending time in the United Kingdom under the jurisdiction of the

prison authorities, we cannot find that this changed in any fundamental

way the applicant's status as regards any right to remain in the United

Kingdom on his release.  While the prison authorities fulfilled their

responsibility in providing the applicant during his detention with the

available health care, this cannot, in our view, impose a

responsibility on the United Kingdom to continue to provide that health

care indefinitely. In the present case, the direct responsibility of

the United Kingdom authorities for the applicant's state of health

ceased on his release from prison and the lack of comparable medical

facilities in St. Kitts cannot impose an obligation on the United

Kingdom to revoke their refusal of permission to enter the United

Kingdom. The fact that the applicant faces difficult circumstances on

his return to St. Kitts cannot therefore engage the responsibility of

the United Kingdom under Article 3 of the Convention.

      Insofar as the applicant submits that the removal constitutes a

violation of Article 8 of the Convention in that it interferes

disproportionately with his right to respect for private life, the

factors referred to above are equally relevant. Where an applicant has

no substantial links of family or private life nature with a country

(cf. Nasri v. France, loc. cit.), he cannot rely on Article 8 of the

Convention to impose an obligation on that Contracting State to grant

entry or confer residence rights which will allow him to benefit from

medical treatment not available to him in his own country.

      We conclude therefore that the present case discloses no

violation of Articles 2, 3 or 8 of the Convention.

                                                        (Or. English)

PARTIALLY DISSENTING OPINION OF MR. J.-C. GEUS, JOINED BY

MRS. G.H. THUNE, M.P. PELLONPÄÄ, B. MARXER AND N. BRATZA

      I am unable to agree with the majority of the Commission that the

applicant had available to him an effective remedy in respect of his

complaints under Article 3 of the Convention. It is true that in its

judgment in the case of Vilvarajah and others (Eur. Court HR,

Vilvarajah and others judgment of 30 October 1991 Series A no. 215) the

Court concluded that judicial review of the Secretary of State's

refusal to grant asylum amounted to an effective remedy in relation to

the applicant's complaint under Article 3 of the Convention. In so

concluding the Court placed emphasis both on the fact that there were

examples in the case-law where courts had quashed decisions to refuse

asylum and on the fact that the domestic courts had "stressed their

special responsibility to subject administrative decisions in this area

to the most anxious scrutiny where an applicant's life or liberty may

be at risk" (loc. cit. p. 39, para. 125). Nevertheless, there are

special features in the present case which serve in my view to

distinguish the present case from cases concerning asylum. As the

majority point out, it does not appear that there was any dispute of

fact before the domestic courts as to the likely effects of a removal

on the applicant. While the Court of Appeal did address the hardship

that would result and referred to the obligation on the court to give

the most anxious scrutiny to cases where life expectancy is involved,

it nonetheless concluded that it found no grounds to grant relief. It

appears to me that the courts' approach to the case took its starting

point from the immigration authorities' distinction, based on the

applicable rules, between persons who had or had not been given leave

to enter. The existence of intervening circumstances was not accorded

any relevance in the assessment of the applicant's position. Against

that background, I am of the opinion that the consideration of risk of

ill-treatment contrary to Article 3 was shown to be in practice an

element of limited significance. Judicial review consequently failed

to afford any effective opportunity for the substance of the

applicant's complaints to be addressed. There was thus a violation of

Article 13 in the present case.