Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30240/96

by D.G.

against the United Kingdom

The European Commission of Human Rights sitting in private on

26 June 1996, the following members being present:

MM. S. TRECHSEL, President

C.L. ROZAKIS

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

C. BÎRSAN

E. BIELIUNAS

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 February 1996

by D.G. against the United Kingdom and registered on 16 February 1996

under file No. 30240/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

29 March 1996 and the observations in reply submitted by the

applicant on 11 April 1996;

- the parties' oral submissions at the hearing on 26 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

in London. He is represented before the Commission by Mr. Alan Simmons

of the AIRE Centre, London.

The facts as submitted by the parties may be summarised as

follows.

a. Particular circumstances of the case

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.

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.

On 20 January 1996, the immigration authorities gave directions

for the applicant's removal to St. Kitts.

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 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..."

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..."

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.

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.

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 that half of what would be

expected.

The applicant is currently in immigration detention.

b. Relevant domestic law and practice

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.

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.

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.

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.

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."

PROCEEDINGS BEFORE THE COMMISSION

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.

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.

On 29 March 1996, the Government submitted their observations and

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

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

to make submissions at an oral hearing.

On 10 June 1996, the President of the Commission granted legal

aid to the applicant.

On 13 June 1996, the applicant submitted further observations and

documents.

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.

COMPLAINTS

The applicant invokes Articles 2, 3, 8 and 13 of the Convention.

As regards Article 2, 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 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, which make it more likely that

he will contract an infection which will be fatal, and the lack of

accommodation or wherewithal to support himself.

Under Article 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 physical

and mental suffering, constitutes treatment contrary to this provision.

Under Article 8, the applicant argues that the risk to his

physical integrity from the removal constitutes a violation of his

right to respect for his private life.

Finally, the applicant invokes Article 13 of the Convention as

regards the alleged lack of an effective remedy for his complaints. He

submits that judicial review does not allow an investigation of the

impugned decision refusing his application to stay in the United

Kingdom but is confined to the decision-making procedure.

THE LAW

The applicant complains 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 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. He complains

that he has no effective remedy in respect of these matters. He invokes

Article 2 (Art. 2) of the Convention (right to life), Article 3

(Art. 3) (prohibition against inhuman and degrading treatment), Article

8 (Art. 8) (right to respect for private life) and Article 13 (Art. 13)

(right to an effective remedy before a national authority).

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. 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.

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

that a violation 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, breach Article 3 (Art. 3) of the Convention.

The fact that St. Kitts does not have medical facilities to prolong the

life of an AIDS sufferer does not disclose any breach of this

provision, which requires deliberate ill-treatment.

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.

The Government further submits that removing the applicant to a

country less well equipped to provide medical care than the Contracting

State 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. Finally, as

regards Article 13 (Art. 13), they submit that judicial review affords

a sufficiently effective remedy in respect of the Secretary of State's

decision to refuse leave to enter.

The applicant complains 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. 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.

Finally, the applicant invokes Article 13 (Art. 13) of the

Convention as regards the alleged lack of an effective remedy for his

complaints. He submits that judicial review does not allow an

investigation of the impugned decision refusing his application to stay

in the United Kingdom but is confined to the decision-making procedure.

The Commission has had regard to the submissions of the parties.

It finds that the case raises serious and complex issues of fact and

law under the Convention, the determination of which should depend on

an examination of the merits of the application as a whole. The

Commission concludes that the application is not manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

The application must therefore be declared admissible, no ground for

declaring it inadmissible having been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President to the Commission

(H.C. KRÜGER) (S. TRECHSEL)

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D.G. v. THE UNITED KINGDOM

D.G. v. THE UNITED KINGDOM