De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea  EWHC 1082 (Admin) (27 April 2012)
The England and Wales High Court decided that the decision of the Royal Borough of Kensington and Chelsea to deny a terminally ill Portuguese man care and assistance, and to deport him, was a breach of his right to freedom from ill-treatment and his right to respect for his private life protected by articles 3 and 8 of the European Convention of Human Rights.
The claimant was a Portuguese national who had contracted HIV and AIDS prior to arriving in Britain. He resided in Britain from 1998 to 2001 and from 2008 to the time of the decision, and he was entitled to remain in Britain so long as he was working, seeking work or was self sufficient.
In 2009, the claimant's health seriously deteriorated and he became unable to work. The claimant did not have any meaningful relationships with family and friends living in Portugal, but he had friends in Britain who were able to assist him with his illness and were his “support network”.
The following year, the claimant was informed his condition was terminal. Around this time he was evicted from his accommodation and applied to the Borough for assessment and assistance under the National Assistance Act 1948 (UK). Under the Act, a local authority may make arrangements for providing residential accommodation for persons who are “in need of care and attention which is not otherwise available to them”.
Applying the Act, the Borough determined the claimant was ineligible for assistance as he was not in need of such care and attention. Even if he was, the Borough concluded that, because the claimant was a Portuguese citizen, it was prohibited from providing services under the Act unless it was necessary to avoid a breach of human rights. In the Borough's view, it would not be a breach of human rights to return the claimant to Portugal.
The claimant applied for judicial review of this decision.
Essentially, the Court held that the Borough had applied a threshold which was too high when deciding that the claimant was not "in need of care and assistance" and that, by denying the claimant's request for assistance, and conversely seeking to deport him, the Borough had acted in a way which constituted a breach of the claimant's right to freedom from ill-treatment and his right to respect for his private life.
The Court found that the refusal of the Borough to make arrangements for the claimant, whose levels of fatigue, weakness, pain and secondary infections fluctuated from day to day as did his ability to care for himself, was based on a flawed assessment and the claimant was in fact in need of care and assistance which was not otherwise available to him.
With respect to the claimant's article 3 rights, the Court considered that “[t]he 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.” Subsequently, the real question before the Court was whether it would be cruel, inhuman or degrading to force the claimant to die alone in Portugal without the benefit of his support network in Britain, and in circumstances where he would be unable to access the drugs he was receiving for the treatment of his medical conditions in Britain. The Court noted that in this case the claimant was threatened with the loss of accommodation and support, not simply his removal from Britain and it would be “inhuman treatment” to send the claimant to an “undignified and distressing end in Portugal, facing delay and difficulty in obtaining accommodation and benefits, and parted from his existing support network of friends and healthcare professionals”.
Likewise, the Court concluded that there was a risk of a breach of the claimant's article 8 rights. The Court noted that “[i]t is well-established that ‘private life’ under article 8 covers the physical and psychological integrity of the person.” It was inevitable that the refusal to provide accommodation and support in Britain, thus forcing the claimant to return to Portugal, would “interfere” with the claimant's physical and psychological integrity within the meaning of article 8. As the claimant's life expectancy was so low the Borough was unable to rely on the argument that the financial burden of supporting the claimant was justification for the interference with his private life. The savings to be made by deporting the claimant were minimal given the claimant's short life expectancy.
Relevance to the Victorian Charter
This decision confirms the right to freedom from ill-treatment covers suffering naturally caused by physical and psychological illnesses where it will be, or may be, exacerbated by the State's actions and, in circumstances involving a potential deportation, it is the effect on the person being deported to another country rather than the reason or justification for the move which was relevant. As such, in this case, the State was responsible for ensuring the claimant would not suffer the indignity and distress of having to be removed to Portugal to die alone.
In addition, this decision confirms the right to respect for private life covers the physical and psychological integrity of a person. While there will be circumstances where the removal of a person to another country and the consequent intrusion into a person's private life will be justified by, for example, a legitimate aim to minimise expenditure on social services and prioritise scarce resources for the benefit of the State's nationals, these aims must be balanced against the severe consequences for the person being removed.
A copy of the decision is available online at: http://www.bailii.org/ew/cases/EWHC/Admin/2012/1082.html
Susanna Kirpichnikov and Ashlea Hawkins are lawyers at Lander & Rodgers.