JOINT DISSENTING OPINION OF JUDGES TULKENS, BONELLO AND SPIELMANN

1. We do not agree with the Court’s finding that there would be no violation of Article 3 of the Convention in the event of the applicant’s removal to Uganda.

2. In those circumstances, nor can we agree that it is not necessary to examine the complaint under Article 8 of the Convention.

I. Article 3 of the Convention

3. A thorough analysis of the domestic courts’ decisions leads us to the conclusion that there are substantial grounds for believing that the applicant faces a real risk of prohibited treatment in her home country. Moreover, this case is indeed one of exceptional gravity meeting the “very exceptional circumstances” test as laid down in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997-III).

4. But before turning to the facts of the case, we would like to make four remarks as to the general principles of the Court’s case-law which, in our view, have been wrongly appraised by the majority. We would then like to propose our alternative dissenting view.

A. As to the general principles

5. Firstly, we would stress that we cannot share the view expressed by the majority that the Court should maintain its high threshold “given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of adequate resources to deal with it in the receiving country” (see paragraph 43 of the judgment).

The Court emphasised as early as 1997 in the H.L.R. v. France case (29 April 1997, Reports 1997-III) the potential danger emanating from non-State bodies:

“40. Owing to the absolute character of the right guaranteed, the Court does not rule out the possibility that Article 3 of the Convention (art. 3) may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection.”

Concerning, in particular, the suffering which flows from naturally occurring illness, physical or mental, the Court has elaborated the so-called “ Pretty threshold” (see Pretty v. the United Kingdom , no. 2346/02, ECHR 2002-III):

“52. As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the Court’s case-law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (see Ireland v. the United Kingdom , cited above, § 167, and V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see amongst recent authorities, Price v. the United Kingdom , no. 33394/96, §§ 24-30, ECHR 2001-VII, and Valašinas v. Lithuania , no. 44558/98, § 117, ECHR 2001-VIII). The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (see D. v. the United Kingdom and Keenan , both cited above; and Bensaid v. the United Kingdom , no. 44599/98, ECHR 2000-I).” (emphasis added)

This principle should therefore equally apply where the harm stems from a naturally occurring illness and a lack of adequate resources to deal with it in the receiving country, if the minimum level of severity, in the given circumstances, is attained. Where a rigorous examination reveals substantial grounds for believing that expulsion will expose the person to a real risk of suffering inhuman or degrading treatment, removal would engage the removing State’s responsibility under Article 3 of the Convention.

6. Secondly, and most regrettably, in paragraph 44 of the judgment the Court adds worrying policy considerations based on an incomplete statement that the Convention is essentially directed at the protection of civil and political rights, thus ignoring the social dimension of the integrated approach adopted by the Court, specifically in Airey v. Ireland (9 October 1979, Series A no. 32) and in more recent case-law (see, most notably, Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, ECHR 2004-VIII [1] ):

In Airey the Court held:

“26. The Court is aware that the further realisation of social and economic rights is largely dependent on the situation – notably financial – reigning in the State in question. On the other hand, the Convention must be interpreted in the light of present-day conditions (see Marckx , cited above, § 41) and it is designed to safeguard the individual in a real and practical way as regards those areas with which it deals (see paragraph 24 above). Whilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature. The Court therefore considers, like the Commission, that the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention .” (emphasis added)

We are minded to draw attention to the incomplete and thus misleading quotation from the Airey judgment made by the majority in paragraph 44 of the judgment, for the sake of clarity and completeness and not because we are of the opinion that this case is about social and economic rights. It is a case about one of the core fundamental civil rights guaranteed under the Convention, namely that of Article 3.

7. Thirdly, we also strongly disagree with the highly controversial statement made by the majority in paragraph 44 of the judgment in the context of the non-derogable right of Article 3 that “... inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights”.

Even though certain “proportionalist errings”, severely criticised in legal writings, existed at one time, particularly in the case-law of the old Commission [2] , the balancing exercise in the context of Article 3 was clearly rejected by the Court in its recent Saadi v. Italy judgment ([GC], no. 37201/06, ECHR 2008), confirming the Chahal v. the United Kingdom judgment (15 November 1996, Reports 1996 ‑ V), in the following terms:

“130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ...

...

138. ... Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to ... expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule ...” [3] (emphasis added)

8. Fourthly, and in contrast with what the majority say, we would like to add that in this case the claim has not been articulated that Article 3 does “place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction” (see paragraph 44).

However, the view expressed by the majority that such a finding “would place too great a burden on the Contracting States” (see paragraph 44 in fine ), reflects the real concern that they had in mind: if the applicant were allowed to remain in the United Kingdom to benefit from the care that her survival requires, then the resources of the State would be overstretched. Such a consideration runs counter to the absolute nature of Article 3 of the Convention and the very nature of the rights guaranteed by the Convention that would be completely negated if their enjoyment were to be restricted on the basis of policy considerations such as budgetary constraints. So does the implicit acceptance by the majority of the allegation that finding a breach of Article 3 in the present case would open up the floodgates to medical immigration and make Europe vulnerable to becoming the “sickbay” of the world. A glance at the Court’s Rule 39 statistics concerning the United Kingdom shows that, when one compares the total number of requests received (and those refused and accepted) as against the number of HIV cases, the so-called “floodgate” argument is totally misconceived [4] .

B. As to the facts of this case

9. The undisputed facts are set out eloquently in paragraph 73 of the House of Lords’ judgment. We would like to repeat them here, as it follows from those facts that substantial grounds are shown for believing that the person faces a real risk of prohibited treatment in the country of proposed removal. That is what makes this case very exceptional.

Paragraph 73 of the House of Lords’ judgment reads as follows:

“73. This appellant, a Ugandan national, is a case in point. Seven years ago, then aged 23, she arrived on a flight from Entebbe and the following day, seriously ill, was admitted to Guy’s Hospital where she was diagnosed HIV-positive with severe damage to the immune system (a CD4 count of ten) and disseminated TB. Following a long initial stay in hospital she developed a second Aids-defining illness, Kaposi’s sarcoma, a particularly aggressive form of cancer. She was readmitted to hospital and started a prolonged course of chemotherapy. By 2002, after some years of treatment with antiretroviral drugs and many setbacks, her CD4 count had risen to 414 and she was well. In October 2002, the date of the latest medical evidence in the case, she was described by Dr Meadway as ‘stable and free of any significant illness’ and, were she to remain in the United Kingdom, ‘likely to remain well for decades’. Were she, however, to be returned to Uganda, her prospects would deteriorate dramatically. In this event it was Dr Meadway’s view that:

‘[T]he formulation of antiretroviral drugs Ms N is currently taking are not available in Uganda. Ms N’s HIV virus already has some resistance and in the future she will require a change of antiretrovirals which is likely to include other drugs not available in Uganda. If she returns to Uganda although antiretrovirals are available in parts of the country she would not have the full treatment required and would suffer ill health, pain, discomfort and an early death as a result.’

By an ‘early death’ it appears that Dr Meadway was suggesting death within a year or at most two. Dr Larbalestier, a Consultant Physician at Guy’s, also reporting in October 2002, said:

‘I have no doubt at all that if she is forced to return to Uganda her lifespan will be dramatically shortened from potentially decades of high-quality life to almost certainly less than two years.’”

10. The Convention guarantees should not be understood outside the context of prevailing practical realities. These are usefully described in the extracts of the speeches of the Law Lords and adjudicator set out below:

Lord Hope of Craighead:

“20. The decision which your Lordships have been asked to take in this case will have profound consequences for the appellant. The prospects of her surviving for more than a year or two if she is returned to Uganda are bleak . It is highly likely that the advanced medical care which has stabilised her condition by suppressing the HIV virus and would sustain her in good health were she to remain in this country for decades will no longer be available to her. If it is not, her condition is likely to reactivate and to deteriorate rapidly. There is no doubt that if that happens she will face an early death after a period of acute physical and mental suffering ...” (emphasis added)

Baroness Hale of Richmond:

“59. ... The issue is when it is permissible to expel a person who is suffering from an illness which can be treated here but whose prospects of receiving such treatment in her home country do not look good.

...

67. ... None of us wishes to send a young woman, who has already suffered so much but is now well cared for and with a future ahead of her, home to the likelihood of an early death in a much less favourable environment ...” (emphasis added)

Lord Brown of Eaton-under-Heywood:

“73. ... Were [the applicant], however, to be returned to Uganda, her prospects would deteriorate dramatically .” (emphasis added)

11. The adjudicator, Mr P.H. Norris, found on 3 July 2002 as follows:

“10. ... I accept that [the applicant] came to this country to escape from those who had harassed and ill-treated her. I also find that when she came to this country she did not know that she was suffering from a life-threatening illness and that she did not come here to obtain medical treatment. I find that the condition from which she now suffers is indeed Aids and that without the sophisticated treatment which she is now receiving she would die within a matter of months. I find that the treatment she needs would not be available to her in Uganda. In making these findings as to her state of health, I take into account and accept the medical evidence contained within the appellant’s bundle. There is no need for me to refer to any specific medical report: all the reports are in my view consistent with each other. I do however find the three reports by Dr Jeanette Meadway, medical director of Mildmay Hospital, ... to be particularly impressive. I note that Mildmay Hospital operates at least one hospice in Uganda, and I see no reason why I should not accept the opinions of Dr Meadway in their entirety. One of her conclusions ... is that to compel the appellant to return to Uganda would cause suffering and early death and would amount to inhuman and degrading treatment . I accept this conclusion on the evidence which I have heard and seen.” (emphasis added)

12. We would like to add that concerning the situation in Uganda, a so-called “high prevalence” country, the progress made in providing medical care is offset by the spread of the epidemic (more medical treatment but ever-increasing numbers of people requiring treatment) [5] . Concerning the treatment, and, in particular, “highly active antiretroviral therapy” (HAART), the quality of medical care will depend not just on the availability of the drugs but on the availability of doctors to manage and adjust the doses, since HAART is a cocktail of drugs which requires constant monitoring. The medical reports submitted in the domestic proceedings in the present case indicate that the applicant would have a life expectancy of two years if the treatment she is receiving in the United Kingdom were to be withdrawn. The problem in assessing what kind of medical care she would receive on return is that if she does not receive antiretroviral therapy, she is likely to die from what are called “opportunistic infections” (which the body cannot fight because of the weakened immune system, the reason for her life expectancy of two years).

13. It is against this factual background and practical realities that the Grand Chamber had to decide the present case.

C. As to the potential violation of Article 3 of the Convention

14. Lord Hope expressly asked our Court to give a clear answer, saying:

“[I]t is not for [the House of Lords] to search for a solution to [the applicant’s] problem which is not to be found in the Strasbourg case-law. It is for the Strasbourg Court, not for us, to decide whether its case-law is out of touch with modern conditions and to determine what further extensions, if any, are needed to the rights guaranteed by the Convention. We must take its case-law as we find it, not as we would like it to be.” [6] (emphasis added)

15. Admittedly, the Court has never found a violation in cases decided since D. v. the United Kingdom (cited above). However, all the cases have been decided on facts distinguishable from those in that case and also from those of the present case. We refer in this respect to the very accurate summary of the case-law provided in paragraphs 34 to 41 of the judgment [7] .

16. We would like, however, to emphasise that in B.B. v. France (7 September 1998, Reports 1998-VI), a case settled and consequently struck out of the Court’s list, the European Commission of Human Rights, in its opinion, as expressed in the Article 31 report of 9 March 1998, found, by twenty-nine votes to two, that deporting the applicant to the Democratic Republic of the Congo would amount to a violation of Article 3 of the Convention. The Commission based its opinion on the following reasoning:

“53. In the Commission’s opinion, a finding that such a risk exists need not necessarily imply that the receiving country or the public authorities there are responsible for it. Given the fundamental importance of Article 3 in the Convention system, the Commission and the Court have already recognised that they were not prevented from scrutinising an applicant’s claim under Article 3 where the source of the risk of his or her suffering proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country or which, taken alone, do not in themselves infringe the standards of that Article. It is therefore important to examine the application of Article 3 in the light of all the circumstances which could entail a violation of it (see Ahmed v. Austria , 17 December 1996, Reports 1996-VI, opinion of the Commission, p. 2207, § 44; H.L.R. v. France , 29 April 1997, Reports 1997-III, opinion of the Commission, p. 792, § 49).

54. Given 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 Soering , cited above, § 87), the Commission considers that exposing a person to a real and substantiated risk to his health which is so serious as to amount to a violation of Article 3 on account of other factors in the receiving country, such as the lack of medical care and services, as well as social and environmental factors, are capable of engaging the responsibility of the State intending to expel the person (see, inter alia , Tanko v. Finland , no. 23634/94, Commission decision of 19 May 1994, Decisions and Reports 77-A, p. 133; Nasri v. France , 13 July 1995, Series A no. 320-B, opinion of the Commission, p. 36, § 61; and D. v. the United Kingdom , cited above, §§ 49 et seq.).

55. The Commission is of the view that, if the applicant is deported to his native country, it is highly probable that he will not have access to treatment designed to inhibit the spread of the virus and delay the appearance of opportunistic infections, to which Aids sufferers are extremely vulnerable. The numerous epidemics raging in his country, causing a high degree of mortality, would increase this risk of infection. Furthermore, the Commission considers that, on the facts, expecting the applicant to confront an illness such as advanced Aids alone, without any support from his family, is likely to make it impossible for him to maintain human dignity as the disease runs its – inevitably painful and fatal – course.” [8]

17. Compared to this humane but reasonable approach, the Grand Chamber decision constitutes a clear setback.

18. By inviting our Court to expand (or restrict) the scope of the “very exceptional circumstances” test, Lord Hope seems to have taken as the starting point of his reasoning that this case is distinguishable from D. v. the United Kingdom .

19. We believe that it is not. We are not convinced that the facts in this case are so different from D. v. the United Kingdom as to call for a different solution. Admittedly, it is true that in D. v. the United Kingdom the applicant’s fatal illness had already reached a critical stage [9] . And it is equally true that the Court, in its judgment of 2 May 1997, quite rightly decided that, in the “exceptional circumstances” of that case, removing the applicant to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3 [10] . The Court’s majority, in paragraph 42 of this Grand Chamber judgment, heavily relied on that particular feature of D. v. the United Kingdom , stating as follows:

“In the D. v. the United Kingdom case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.”

The majority explained, however, in the following paragraph that it:

“[did] not exclude that there [might] be other very exceptional cases where the humanitarian considerations [were] equally compelling.”

20. Indeed, deportation of an “applicant on his or her death bed” would in itself be inconsistent with the absolute provision of Article 3 of the Convention. Or to put it differently, and as Lord Brown has rightly pointed out: “[t]he mere fact that the applicant is fit to travel, however, is not in itself sufficient to preclude his removal being characterised as Article 3 ill-treatment” (paragraph 80 of the House of Lords’ judgment).

21. We understand, however, that the additional grounds advanced by the Court in D. v. the United Kingdom and related to a lack of medical and palliative care as well as a lack of psychological support, in the home country, might be equally relevant to the finding of a separate potential violation of Article 3 of the Convention [11] .

22. On the basis of this principle, and above all on the basis of the facts, the Court should also have found in this case a potential violation of Article 3 of the Convention, precisely because there are substantial grounds to believe that the applicant faces a real risk of prohibited treatment in the country of proposed removal [12] .

23. There is no doubt that in the event of removal to Uganda the applicant will face an early death after a period of acute physical and mental suffering. In this case we are satisfied of the existence of such extreme facts with equally compelling humanitarian considerations. After all, the highest judicial authorities in the United Kingdom were almost unanimous in holding that the applicant, if returned to Uganda, would have to face an early death. The expelling State’s responsibility, because substantial grounds are thus shown for believing that the applicant almost certainly faces a risk of prohibited treatment in Uganda, is engaged.

24. Without interpreting the scope of Article 3 of the Convention differently from our Court in the case of D. v. the United Kingdom , a violation could therefore have been found in the light of the very extreme facts of this case [13] . In other words, finding a potential violation of Article 3 in this case would not have been an extension of the exceptional category of cases which is represented by D. v. the United Kingdom .

25. The distinguishing of the present case from that of D. v. the United Kingdom is thus, in our opinion, misconceived.

II. Article 8 of the Convention

26. While it is understandable that the Court, in its case-law, has refrained from examining a second complaint – concerning the same facts – when the first has given rise to a finding of a violation, it is certainly strange for the Court to be using the laconic form of words “it is not necessary to examine the complaint under Article 8 of the Convention” after finding that there was no violation of Article 3 of the Convention. While the Court considered that the present case lacked very exceptional circumstances and that the threshold of seriousness for the purposes of Article 3 was thus not satisfied, it should nevertheless, in our opinion, have examined closely and carefully the situation of the applicant and of her illness under Article 8 of the Convention, which guarantees, in particular, a person’s right to physical and psychological integrity. Faced with the situation of a person who will, without doubt, be sent to certain death, we think that the Court could neither legally [14] nor morally confine itself to saying “[no] separate issue arises under Article 8 of the Convention”.

[1] . For an analysis of this judgment and as to the “permeability” of human rights norms, see Virginia Mantouvalou, European Law Review , vol. 30, 2005, pp. 573-85. For an analysis of the moral justification for protection of socio-economic rights, see J. Waldron, “Liberal Rights: Two Sides of the Coin”, in Waldron, Liberal Rights – Collected Papers 1981-1991 (Cambridge: Cambridge University Press), 1993, p. 1 at pp. 4-17, quoted by Mantouvalou, op. cit.

[2] . S. van Drooghenbroeck, La Proportionnalité dans le Droit de la Convention Européenne des Droits de l’Homme. Prendre l’Idée Simple au Sérieux (Brussels: Bruylant, Publications des Facultés Universitaires Saint-Louis), 2001, pp. 125 et seq.

[3] . A similar approach has been adopted by Lord Hope in the case of Limbuela , concerning destitution, decided by the House of Lords on 5 November 2005 ( Regina v. Secretary of State for the Home Department, ex parte Limbuela , [2005] UKHL 66): “55. So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity. It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied. But it would be wrong to lend any encouragement to the idea that the test is more exacting where the treatment or punishment which would otherwise be found to be inhuman or degrading is the result of what Laws LJ refers to as legitimate government policy. That would be to introduce into the absolute prohibition, by the backdoor, considerations of proportionality. They are relevant when an obligation to do something is implied into the Convention. In that case the obligation of the State is not absolute and unqualified. But proportionality, which gives a margin of appreciation to States, has no part to play when conduct for which it is directly responsible results in inhuman or degrading treatment or punishment. The obligation to refrain from such conduct is absolute.”

Admittedly, Lord Hope’s dictum in Limbuela concerned the question “whether the state is properly to be regarded as responsible for the harm”. See the analysis of Ellie Palmer, “Socio-Economic Rights and the Human Rights Act”, Judicial Review (Oxford: Hart Publishing), 2007, p. 266.

[4] . – June to December 2005 : 15 requests: 13 refused, 1 accepted (namely N. v. the United Kingdom ).

– 2006 : 88 requests: 83 refused, 5 accepted (2 of these 5 were HIV cases).

– 2007 : 951 requests: 217 refused, 182 accepted (19 were HIV cases, 14 accepted, 0 refused; in one of the cases, the Rule 39 indication was lifted and the applicant has withdrawn her application because of fresh domestic proceedings).

– 1 January 2007 to 22 April 2008 : 969 requests: 174 refused, 176 accepted (19 were HIV cases, 13 accepted and 0 refused).

Those statistics beg the following explanation. The system now records all cases where interim measures are requested, whether a decision is taken by a judge or not. This explains why there is a large disparity between the fact that there are 969 recorded requests for January-April 2008 but only 176 when Rule 39 has been applied and 174 when it has been refused. The rest would be either out of scope or not submitted because there were no documents.

For the HIV cases there are a number of explanations which may account for the fact that 19 were registered as HIV cases in each year but only 14 and 13 decisions were taken each year to apply Rule 39. For example, the Government have given undertakings in some cases and in others the applicants may have withdrawn their applications because they have been given leave to remain on other grounds.

[5] . UNAIDS/WHO, “Aids Epidemic Update”, December 2006, pp. 17-18:

http://data.unaids.org/pub/EpiReport/2006/2006_EpiUpdate_en.pdf

[6] . Compare with Baroness Hale in R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] UKHL 15 in paragraph 53: “I do not believe that, when Parliament gave us those novel and important powers, it was giving us the power to leap ahead of Strasbourg in our interpretation of the Convention rights. Nor do I believe that it was expecting us to lag behind. ...”

[7] . See B.B. v. France , 7 September 1998, Reports 1998 ‑ VI; Karara v. Finland , no. 40900/98, Commission decision of 29 May 1998: illness had not yet reached an advanced stage; S.C.C. v. Sweden (dec.), no 46553/99, 15 February 2000: same type of Aids treatment as in Sweden was available in Zambia, although at a considerable cost, but the applicant’s children and family members lived there; Bensaid v. the United Kingdom , no. 44599/98, ECHR 2001 ‑ I: medical treatment available in Algeria, not receiving support or care to a large extent speculative; Arcila Henao v. the Netherlands (dec.), no. 13669/03, 24 June 2003: applicant’s illness had not reached an advanced or terminal stage and he had a prospect of medical care and family support in his country of origin; Ndangoya v. Sweden (dec.), no. 17868/03, 22 June 2004: applicant’s illness had not reached an advanced or terminal stage and adequate treatment was to be found in Tanzania, albeit at considerable cost and with limited availability in the rural area from where the applicant came, and he maintained some links with relatives who might be able to help him; Amegnigan v. the Netherlands (dec.), no. 25629/04, 25 November 2004: applicant had not reached the stage of full-blown Aids and was not suffering from any HIV-related illnesses and adequate treatment was in principle available in Togo albeit at a possibly considerable cost; see also Tatete v. Switzerland (friendly settlement), no.41874/98, 6 July 2000; and M.M. v. Switzerland (dec.), no. 43348/98, 14 September 1998.

[8] . In his separate opinion, Judge Cabral Barreto, then a member of the Commission, even went a step further: “... where the applicant is obliged to travel to hospital for treatment and needs peace and tranquillity to ‘cope with’ his serious illness, condemning him to remain an illegal alien for the rest of his life constitutes in itself treatment contrary to Article 3 of the Convention.

...

For my part, I consider that a seriously ill foreigner living in a country as a kind of illegal alien, unable to benefit fully and as of right from the social security regime, is in a situation which fails to meet the requirement of Article 3 of the Convention.

Finally, given the importance of this factor, I consider that it should have been expressly mentioned in the Commission’s report.”

This visionary separate opinion anticipated, more than seven years earlier, the House of Lords’ judgment of 5 November 2005 in Regina v. Secretary of State for the Home Department, ex parte Limbuela , [2005] UKHL 66.

[9] . Lord Hope emphasised as follows in paragraph 36 of the House of Lords’ judgment, commenting on D. v. the United Kingdom : “It was the fact that [ D. ] was already terminally ill while still present in the territory of the expelling state that made his case exceptional”.

A recent and lucid comment, describing the restrictive view of the House of Lords’ judgment in N. reads as follows: “ ... the House of Lords in N. concluded that the inference to be drawn from Strasbourg jurisprudence is that it is not necessarily a violation of Article 3 ECHR [the Convention] to return an Aids patient, unless the facts are on all fours either with those in D. v. the United Kingdom (in other words, if the applicant’s condition is advanced or at terminal stage) or with those in the HIV/Aids cases that had been found admissible (in other words, if there will be a complete absence of palliative care or family support after deportation).” See Ellie Palmer, “Socio-Economic Rights and the Human Rights Act”, Judicial Review (Oxford: Hart Publishing), 2007, p. 273.

[10] . D. v. the United Kingdom , 2 May 1997, § 53, Reports 1997 ‑ III: “In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal illness, the implementation of the decision to remove him to St Kitts would amount to inhuman treatment by the respondent State in violation of Article 3.”

[11] . Or as Baroness Hale rightly put it: “There may, of course be other exceptional cases, with other extreme facts, where the humanitarian considerations are equally compelling. The law must be sufficiently flexible to accommodate them ...” (paragraph 70 of the House of Lords’ judgment).

[12] . We would also like to add that all the criteria identified by the Helsinki Foundation for Human Rights in its written comments lodged with the Court on 6 September 2007 are met:

– Continuation of the therapy

If the HIV/Aids-infected person has been officially admitted in the host country to start the antiretroviral therapy, it should be expected he/she has a chance of continuation.

– Medical situation of the HIV/Aids-infected person

If ceasing the therapy causes an almost immediate result (death within a very short time) this factor should be considered as being a compelling factor.

– Availability of medication in the country of origin allowing for the continuation of the therapy in this country

– Possibility for continuing treatment abroad, but on the basis of financial support from the expelling country

In this case all three factors are applicable, making it a “very exceptional case”.

[13] . Facts which concern, after all, what one commentator has considered to be “a life and death issue”. See Ellie Palmer, “Socio-Economic Rights and the Human Rights Act”, Judicial Review (Oxford: Hart Publishing), 2007, p. 270.

[14] . In Bensaid v. the United Kingdom (no. 44599/98, ECHR 2001 ‑ I), a case concerning deportation of a schizophrenic to a country where adequate medical treatment was allegedly not available, the Court found a violation of Article 8 of the Convention:

“47. ‘Private life’ is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 (see, for example, Dudgeon v. the United Kingdom , 22 October 1981, § 41, Series A no. 45; B. v. France , 25 March 1992, § 63, Series A no. 232-C; Burghartz v. Switzerland , 22 February 1994, § 24, Series A no. 280-B; and Laskey, Jaggard and Brown v. the United Kingdom , 19 February 1997, § 36, Reports 1997-I). Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz , cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria , 31 January 1995, § 45, Series A no. 305-B). The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.

48. Turning to the present case, the Court recalls that it has found above that the risk of damage to the applicant’s health from return to his country of origin was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment. Nor in the circumstances has it been established that his moral integrity would be substantially affected to a degree falling within the scope of Article 8 of the Convention. Even assuming that the dislocation caused to the applicant by removal from the United Kingdom where he has lived for the last eleven years was to be considered by itself as affecting his private life, in the context of the relationships and support framework which he enjoyed there, the Court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure ‘in accordance with the law’, pursuing the aims of the protection of the economic well-being of the country and the prevention of disorder and crime, as well as being ‘necessary in a democratic society’ for those aims.”