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Medical argument fails in the Lords

THE United Kingdom has no obligation under the Human Rights Convention to provide foreigners indefinitely with medical treatment that is not available in their own countries, the Appellate Committee of the House of Lords ruled last week.

It rejected the appeal of an illegal immigrant from Uganda who was identified only as “N”.

After her claim for asylum was refused, N claimed that her deportation would be a breach of her rights under Article 3 of the Convention, which is now incorporated into domestic British law by the Human Rights Act 1998. Article 3 states: “No one shall be subjected to . . . inhuman or degrading treatment.”

N entered the United Kingdom from Entebbe in March 1998 on a false passport. She fell ill within hours of her arrival, and was admitted to Guy’s Hospital, where she was diagnosed as HIV-positive with an AIDS-defining illness. As a result of modern anti-retroviral drugs and skilled medical treatment, including a prolonged course of chemotherapy, her condition is now stable.

If she continues to have treatment, she could remain well for decades, but without treatment her life expectancy is no more than a year or two. The medication she needs is not readily available in Uganda.

The sole legal issue before the House of Lords was whether deporting N to Uganda would be incompatible with her right under Article 3, and whether expelling her would be “inhuman treatment”, given Uganda’s lack of medical resources compared with those available in the UK.

Lord Nicholls of Birkenhead, who presided, said that if N’s were a special case, there was no doubt that “in one way or another, the pressing humanitarian considerations of her case would prevail. But in principle the law should seek to treat like cases alike.” N’s case was “far from unique”, since “the prevalence of AIDS worldwide, particularly in southern Africa, was a present-day human tragedy on an immense scale.” The common feature in all such cases was that the would-be immigrant faced a significantly shortened expectation of life if deported.

But Article 3 could not be interpreted as requiring states that were signatories to the Convention to admit and treat AIDS sufferers from all over the world for the rest of their lives, the House of Lords ruled. Nor, by the like token, could Article 3 be interpreted as requiring states to give an extended right to remain to would-be immigrants who had received treatment while their applications were being considered.

If their applications were refused, the improvement in their medical condition brought about by that interim medical treatment, and the prospect of serious or fatal relapse on expulsion, could not make the expulsion inhuman treatment for the purposes of Article 3.

“No one could fail to be moved by [N’s] situation,” Lord Nicholls said, but those acting on N’s behalf were seeking to press the obligations arising from the Convention too far. The problem derived from the disparity of medical facilities in different countries of the world. Despite that disparity, Lord Nicholls said, an AIDS sufferer’s need for medical treatment did not, as a matter of Convention right, entitle him to enter a state and remain there in order to obtain the treatment that he so desperately needed.

Lord Brown of Eaton-under-Heywood said he “would prefer not to have to make this decision”, but said he felt “driven to answer no” to the question whether N’s was a very exceptional case.

All five Law Lords expressed sympathy for N, but agreed that Article 3 did not give her a legal right to remain in the UK for the purpose of obtaining medical treatment.

This decision was regarded as a test case that affects several other would-be immigrants who are in the same situation as N, and the Terrence Higgins Trust intervened in her case by putting written submissions before the Law Lords.

The ruling does not mean that N’s deportation will inevitably follow. The Home Secretary still has a wide discretion about whether or not to deport her.


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