Factual and Procedural Background
These six appeals arise from decisions of the Upper Tribunal (UT) dismissing appeals against the Secretary of State's removal orders from the United Kingdom. Each appellant suffers from serious medical conditions treated in the UK, including terminal renal failure (end stage kidney disease - ESKD) for five appellants and advanced HIV infection for the sixth. The appellants argue that removal would violate their rights under Articles 3 and 8 of the European Convention on Human Rights (ECHR). The appeals require consideration of the European Court of Human Rights (ECtHR) judgments in D v United Kingdom (1997) and N v United Kingdom (2008), and the House of Lords decision in N v Secretary of State (2005).
One appellant (GM) has a conceded ground of appeal relating to procedural irregularity in the removal notice. The Secretary of State also accepts arguable errors in the UT's consideration of GM's Article 8 claim and is open to fresh representations in EO's case due to changed circumstances.
The appellants’ medical conditions and immigration histories vary, but generally involve long-term or terminal illness, reliance on dialysis or antiretroviral therapy, and histories of overstaying or unlawful entry. Removal decisions were upheld by the First-tier Tribunal (FTT) and UT, with appeals to this court following.
Legal Issues Presented
- Whether the removal of appellants suffering from serious medical conditions violates Article 3 of the ECHR, given the risk of inhuman or degrading treatment due to lack of adequate medical care in their home States.
- Whether the removal violates Article 8 of the ECHR, concerning respect for private and family life, including the impact of removal on medical treatment and personal relationships.
- The scope and application of the ECtHR’s jurisprudence in D v UK and N v UK, and the House of Lords’ ruling in N v Secretary of State, particularly regarding the "deathbed exception" to removal under Article 3.
- Procedural legality of removal notices combining removal and refusal of leave to vary stay (specific to GM).
- The extent to which new factual developments (e.g., potential kidney transplant for GM, post-transplant treatment for EO) affect the appellants’ claims under Articles 3 and 8.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| D v United Kingdom (1997) 25 EHRR 31 |
Established the Article 3 "deathbed exception" where removal would cause inhuman or degrading treatment by exposing a terminally ill person to death in distressing conditions without adequate care. |
Used as the paradigm case for an absolute prohibition on removal in exceptional humanitarian circumstances; court confirmed the exception is narrowly confined to terminally ill persons at a critical stage. |
| N v United Kingdom (2008) 47 EHRR 39 |
Reaffirmed and clarified the high threshold for Article 3 claims based on medical conditions, emphasizing that states have no obligation to provide medical care unavailable in the country of removal. |
Held binding by this court; applied to confirm that removal causing shortened life expectancy alone does not violate Article 3 absent exceptional circumstances akin to D. |
| N v Secretary of State [2005] 2 AC 296, UKHL 31 |
House of Lords ruling binding on this court; confirmed that Article 3 does not impose an obligation on states to provide indefinite medical treatment to aliens, even if removal shortens life. |
Interpreted the D exception as confined to deathbed cases; applied to dismiss appellants’ Article 3 claims. |
| Bensaid v United Kingdom (2001) 33 EHRR 205 |
Clarified that Article 8 protects private life including mental health; removal decisions must consider impact on mental stability as part of private life. |
Referenced in assessing Article 8 claims related to medical treatment and mental health. |
| Pretty v United Kingdom (2002) 35 EHRR 1 |
Discussed the broad scope of Article 8 including personal autonomy and quality of life. |
Used to explain the diffuse paradigm of Article 8 rights relevant to medical treatment claims. |
| MSS v Belgium & Greece (2011) 53 EHRR 2 |
Addressed state responsibility under Article 3 for inhuman treatment due to poor reception conditions of asylum seekers. |
Distinguished from medical removal cases; used to illustrate departures from Article 3 paradigm based on state responsibility for treatment conditions. |
| Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 |
Confirmed that state responsibility under Article 3 may arise from official indifference to serious deprivation. |
Discussed in relation to humanitarian conditions and state responsibility; contrasted with medical removal jurisprudence. |
| SHH v United Kingdom (2013) 57 EHRR 18 |
Applied the N v UK approach to claims of ill-treatment due to inadequate social provisions on removal. |
Followed the high threshold for Article 3 claims in medical removal cases. |
| Tarakhel v Switzerland (Application No. 29217/12) |
Held that returning asylum seekers to states with systemic deficiencies in reception conditions may violate Article 3 without sufficient guarantees. |
Referenced for the principle that state responsibility for treatment conditions is critical in Article 3 cases. |
| JA & ES v Secretary of State [2009] EWCA Civ 1353 |
Distinguished between persons with and without leave to remain for Article 8 purposes. |
Considered in submissions regarding lawful presence and Article 3 and 8 claims. |
| R (Razgar) v Secretary of State [2004] UKHL 27 |
Recognized that removal prejudicing access to medical treatment may engage Article 8, especially relating to mental health. |
Applied in assessing the scope of Article 8 claims involving medical treatment. |
| MM (Zimbabwe) [2012] EWCA Civ 279 |
Clarified that absence of medical treatment in country of return cannot alone engage Article 8; other factors must be present to establish a breach. |
Used to dismiss Article 8 claims lacking additional private or family life elements beyond medical treatment. |
| Kizhakudan v Secretary of State [2012] EWCA Civ 566 |
Confirmed UT’s discretion to entertain points not raised below but within limits. |
Referenced regarding the scope of appeals and introduction of new issues. |
| AS (Afghanistan) v Secretary of State [2009] EWCA Civ 1076 |
Addressed the scope of appeals and consideration of new grounds in immigration cases. |
Discussed in relation to jurisdiction over Article 8 claims not pursued below. |
| Miskovic v Secretary of State for Work and Pensions [2011] EWCA Civ 16 |
Confirmed appellate jurisdiction to consider points of law not raised below, subject to discretion. |
Considered in relation to discretion to hear new Article 8 arguments. |
| AJ (Liberia) v Secretary of State [2006] EWCA Civ 1736 |
Recognized Article 8 engagement in mental health cases involving removal and medical treatment. |
Referenced in discussion of Article 8 claims involving physical illness. |
| R (SQ (Pakistan)) v The Upper Tribunal [2013] EWCA Civ 1251 |
Confirmed Article 8 engagement in cases involving physical illness requiring treatment. |
Referenced in support of Article 8 claims involving physical illness. |
| AE (Algeria) v Secretary of State [2014] EWCA Civ 653 |
Confirmed Article 8 engagement in cases involving serious physical illness (spina bifida). |
Referenced for principle supporting Article 8 claims involving physical illness. |
| RT (Zimbabwe) v Secretary of State for the Home Department [2013] 1 AC 152 |
Considered risks faced by returnees with criminal convictions on removal. |
Referenced in assessing risk of ill-treatment on return of appellant KK. |
| Devaseelan [2002] UKIAT 00702 |
Addressed tribunal’s ability to make autonomous findings on facts on appeal. |
Considered and rejected as inhibiting UT’s factual findings in KK’s case. |
Court's Reasoning and Analysis
The court began by examining the established legal framework under Articles 3 and 8 of the ECHR, focusing on the "paradigm cases" that define the scope of protection under each Article. Article 3 prohibits torture and inhuman or degrading treatment, with the "deathbed" exception in D v UK as the core instance where removal would constitute a violation. Article 8 protects private and family life, including mental health and personal development, but does not extend to a right to life or a general obligation to provide medical care.
The court analysed the appellants' medical conditions and their prospects of treatment in their home States, finding that none fall within the exceptional "deathbed" category established in D and reaffirmed in N v Secretary of State. Although removal would shorten life expectancy for some, this alone does not engage Article 3 absent compelling humanitarian grounds involving state responsibility for inhuman treatment.
The court considered other ECtHR cases (e.g., MSS v Belgium & Greece, Sufi & Elmi) addressing state responsibility for treatment conditions but distinguished them from the present cases, which turn on the limited scope of Article 3 in removal contexts.
Regarding Article 8, the court held that failure of Article 3 claims does not preclude a claim under Article 8, but Article 8 claims require additional factual elements, such as established family life or relationships in the UK. The mere absence of adequate medical treatment in the country of removal is insufficient to establish a breach of Article 8. This approach follows the reasoning in MM (Zimbabwe).
The court also addressed procedural and factual points concerning the appellant GM’s case, including a conceded procedural irregularity and a recent development of a potential kidney transplant, which warranted remitting GM’s Article 8 claim to the UT for reconsideration. For appellant KK, the court rejected submissions that his lawful presence or new evidence on risk of ill-treatment on return altered the legal analysis, affirming the UT’s factual findings and legal approach.
Finally, the court declined to entertain Article 8 arguments on behalf of appellants GS, EO, and BA, as these were not sufficiently raised before the UT and did not meet the threshold for intervention on appeal.
Holding and Implications
The court's final decisions are as follows:
- GM's appeal is ALLOWED: The removal decision is quashed, and the Article 8 claim is remitted to the Upper Tribunal for fresh consideration, particularly in light of procedural irregularity and new medical developments.
- All other appeals are DISMISSED: The court holds that none of the appellants meet the exceptional threshold under Article 3 ("deathbed exception"), and their Article 8 claims lack sufficient additional factors to succeed. The removal decisions stand.
The implications are that the court reaffirms the narrow scope of the Article 3 exception for removal cases, emphasizing that life-shortening illness alone does not prohibit removal absent inhuman or degrading treatment caused or condoned by the receiving State. It also clarifies the limited role of Article 8 in such cases, requiring more than the mere absence of medical treatment in the country of removal.
No new legal precedent is established beyond the reaffirmation and application of existing authorities. The decision underscores the importance of procedural correctness and the potential for fresh claims where new material arises, as in GM’s case.