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Monday, 15 March 2010

UK legal decision sets precedent on the right to respect for private life of people living with HIV/AIDS

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Source: Women's Asylum News

JA (Ivory Coast) & Anor v Secretary of State for the Home Department 
[2009] EWCA Civ 1353

This case examines the circumstances in which the right to respect for private life guaranteed by Article 8 of the European Convention on Human Rights can prevent removal of two women who had been in the UK for a significant period and had previously been granted permission to stay in order to received treatment for HIV.  

The decision is important because it identifies  there are circumstances where removing such individuals can be a disproportionate interference with that right.  Previously UK caselaw on this issue had focused upon whether removal of people living with HIV/AIDS to a country where they were not able to access the healthcare that they required to keep them alive constituted inhuman and degrading treatment prohibited by Article 3 of the Convention.  The House of Lords, which was then the highest court in the UK, had held in N v. Secretary of State for the Home Department [2005] UKHL 31 that Article 3 ECHR would only prevent removal in the most exceptional circumstances (for example where death was imminent and there was no possibility of accessing palliative care).  This decision had been confirmed by the European Court of Human Rights.

The cases that the Court of Appeal considered were different.  Both women had come to the UK lawfully (as a visitor and a student respectively) and remained for a significant period.  The reason that both appellants had previously been allowed to remain was because the UK was deemed to have assumed responsibility for them, in accordance with the Home Office policy that was then in force. However, after the decision in N Home Office policy was changed, and both appellants were refused further leave to remain.

The Court of Appeal considered the fact that both appellants had lawfully remained in the UK meant that their situations were different from the appellant in N.  In particular, it meant that they established a private life in the UK and the fact that the basis for their extended lawful stay was based on a history of compassionate grant and renewal of leave to remain for treatment. 

Furthermore, the Court considered that the effect of those grants combined with the effect that that the proposed refusal and discontinuance of treatment would have on their private life should be considered.

In applying this assessment to each case, the Court came to different conclusions.  In the second appellant’s case, the fact that the Tribunal had heard the case and found that she had sufficient skills and experience to obtain work in Tanzania to finance her treatment along with family support, meant that it would not be disproportionate to remove her.  However, in the first appellant’s case, the Court concluded that the case should be remitted to the Tribunal for it to consider the appellant’s present situation and for them to make an up to date assessment of the availability of ARV treatment in Ivory Coast and whether JA could access it.  She would not have to meet the high threshold set out in N to succeed.  Her case needed to be looked at on its facts from the perspective of Article 8 ECHR which might mandate a different outcome when her circumstances were properly considered.
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