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)