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Article 3 _  Recent Decisions

No breach of Article 3 for a seriously ill person requiring continual treatment in the UK

The case of : GS (Article 3 – health – exceptionality) India [2011] UKUT 35 (IAC)
This case concerned an Indian citizen (the respondent in this case) who entered the UK on 1 November 2004. He was granted entry clearance as a working holiday maker, with such leave valid until 29 October 2006. He subsequently overstayed in the UK. On 28th January 2009 an application was made for leave to remain in the UK on the basis of compassionate grounds. His argument was based on the fact that he had suffered from kidney failure and required regular dialysis treatment. His application was refused by the Secretary of State (SSHD) on 12 March 2010 and directions were given to remove him from the UK. An appeal was made to the First Tier Tribunal (Immigration and Asylum Chamber) and his appeal was granted on the basis of a breach of article 3 of the ECHR.

The respondent had been suffering from high blood pressure and went for a blood test in 2008. In the following year it was confirmed that he had advanced chronic kidney disease. The respondent needs dialysis three times a week for four hours per session. He has only a single kidney.

The respondent has a mother and two brothers resident in India. His mother does not enjoy good health. The nearest hospital to his village which is able to provide dialysis is situated in Chandigar, some 300 kilometres away. Dialysis would cost £10,000 to £12,000 rupees per week (£138 - £166 per week). The respondent could not afford to pay for dialysis and pay to support himself in Chandigar.

The Immigration Judge using principles outlined in D v United Kingdom [1997] 24 EHRR 43; Ben Said v United Kingdom (2001) 33 EHRR 10 and N v SSHD [2005] 2AC 296 decided that the respondent’s medical circumstances were such as to bring him into the exceptional category whereby his removal from the United Kingdom would amount to inhuman treatment of the kind prescribed by article 3 of the ECHR.  The respondent’s medical condition was extremely grave given the prospects of survival without the essential treatment that he required. Without dialysis, he would survive for one to two weeks. The SSHD appealed against the decision and permission to appeal was granted.

The appellant (SSHD) submitted that the judge had erred in law by holding that the respondent’s inability to access available treatment in India met the exceptional test as set out in the authorities. He has erred in law by failing to understand that article 3 does not impose a medical care obligation on the contracting state. 

It was argued that the respondent’s case was not exceptional. His case was compared to D v UK in which the Immigration Judge has failed to understand that in the case of D, no such care obligation would be imposed upon the contracting state as D was beyond the reach of medical treatment and would die within a very short time.  Hence, the respondent, GS is not in the same position as D.

To conclude there was no breach of either article 3 or 8 in this case and the appellant’s arguments were in favour. The respondent’s case failed as he did not meet the threshold. He did not fall into the exceptional category.  

March 2011

 

 
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