RS (Zimbabwe) v Secretary of State for the Home Department  EWCA Civ 839 (18 July 2008)
The Court of Appeal of England and Wales has allowed an appeal by RS, a Zimbabwean national, against a decision of the Immigration Appeal Tribunal to dismiss her appeal against a decision of the Secretary of State for the Home Department to refuse to allow RS to remain in the United Kingdom for medical treatment and health.
The case involves the application of art 3 of the European Convention on Human Rights, which provides that ‘[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
RS was born in Zimbabwe and arrived in the United Kingdom in February 2001 with six months leave as a visitor. In August 2001 she was diagnosed with HIV. She was granted leave to remain as a student until September 2002, but an extension of that leave was refused by the Secretary of State.
RS appealed against the decision of the Secretary of State. An Adjudicator upheld this appeal, finding that that ‘in the peculiar circumstances of this case it would be contrary to the obligations of the United Kingdom under art 3 of the European Convention on Human Rights to remove the appellant to Zimbabwe.’ The Secretary of State then appealed to the Tribunal. The Tribunal found that the Adjudicator had made a material error of law and upheld the appeal. RS appealed to the Court of Appeal.
The Court of Appeal allowed the appeal by RS against the Tribunal’s decision and held that the matter should be remitted to a freshly constituted Tribunal.
The Court of Appeal held that RS was not at the present time critically ill and was fit to travel. Following the majority decision of the Grand Chamber of the European Court of Human Rights in N v United Kingdom (Application No 26565/05), the likely consequences of RS being returned to Zimbabwe, being lack of medical treatment leading to ill-health followed by an early death, do not normally impose an art 3 duty on the authorities of the United Kingdom.
In N v United Kingdom it was held that there would be no violation of art 3 of the Convention to remove N (who was HIV positive) from the United Kingdom to Uganda where N would not be able to receive adequate medical treatment unless there were exceptional circumstances.
In N v United Kingdom the Grand Chamber of the European Court of Human Rights set out the general principles regarding art 3 of the Convention. It stated:
Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanated from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection…
The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling…
Whether the harm reaches the threshold required to violate article 3 cannot depend on whether the ‘lack of sufficient resources’ in the receiving State occurs as a consequence of some malign influence by that State or because of benign matters.
The Court of Appeal held that, in light of the statements of the Grand Chamber in N v United Kingdom accepting a broader approach to ‘humanitarian considerations’, the approach of the Tribunal, supported by the Secretary of State, could not be justified. There was material which required analysis. It was held that a fresh consideration by the Tribunal was required.
The Court of Appeal allowed the appeal, and directed a fresh consideration of the art 3 issue by a differently constituted Tribunal.
Relevance to the Victorian Charter
This decision will assist in the interpretation of s 10 of the Victorian Charter. Section 10(a) recognises that a person must not be treated or punished in a cruel, inhuman or degrading way. This decision provides guidance as to what actions may be in violation of the Charter when a person with a medical condition is refused or is unable to access necessary medical treatment.
The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/839.html.
Robert Kovacs, Human Rights Law Group, Mallesons Stephen Jaques