EHRM, 27-05-2008, nr. 26565/05

The Government submitted that it was clear from the Court's jurisprudence that, in medical cases such as the present, Article 3 applied only in ‘exceptional’, or ‘very exceptional’, circumstances. This restriction of the application of Article 3 was correct as a matter of principle, given that the source of the risk was not in the expelling State and that it stemmed from factors which were not such as to engage the responsibility of the public authorities of the receiving State. The case-law further demonstrated that ‘exceptional circumstances’ would be found only where the applicant's illness had reached a very advanced or terminal stage and where the probable lack of medical care and support, including support from family members, in the receiving State would be such as to deprive him or her of ‘the most basic human dignity as his illness runs its inevitably painful and fatal course’ (see D. v. the United Kingdom, application no. 30240/96, Commission's report of 15 October 1996, § 60). In considering whether there were exceptional circumstances, the Court in previous cases had focussed primarily on the gravity of the applicant's medical condition at the moment of the intended removal and had not, to date, carried out any detailed consideration of whether the required treatment and care would be available in practice to the applicant in the receiving country.

The ‘exceptional circumstances’ threshold was not satisfied in the instant case. While the Government accepted that without antiretroviral drugs the applicant's condition would deteriorate rapidly and she would suffer illness, discomfort, pain and death within a year or two, they maintained that her illness was currently stable and that the treatment she needed was available in Uganda, albeit at considerable cost. She was fit to travel and would remain fit if, and so long as, she could obtain the treatment that she needed when she returned to Uganda. She had family members there, although she maintained that they would not be willing or able to care for her if she was seriously ill. For these reasons, the case was distinguishable from D. v. the United Kingdom and fell into the category of medical cases in which the Court had rejected the claim under Article 3 (see paragraphs 34–39 below).

Advances in the treatment of HIV and AIDS available in developed States did not affect the above general principle, as set out in the case-law from D. v. the United Kingdom onwards, since the focus in those cases was on ensuring a dignified death rather than prolonging life. The interpretation of the Convention, as with any international treaty, was confined by the consent of the Contracting States. The practical effect of extending Article 3 to cover the applicant's case would be to grant her, and countless others afflicted by AIDS and other fatal diseases, a right to remain and to continue to benefit from medical treatment within a Contracting State. It was inconceivable that the Contracting States would have agreed to such a provision. The Convention was intended primarily to protect civil and political, rather than economic and social, rights. The protection provided by Article 3 was absolute and fundamental, whereas provisions on health care contained in international instruments such as the European Social Charter and the International Covenant on Economic, Social and Cultural Rights were merely aspirational in character and did not provide the individual with a directly enforceable right. To enable an applicant to claim access to health care by the ‘back door’ of Article 3 would leave the State with no margin of appreciation and would be entirely impractical and contrary to the intention behind the Convention.

The applicant contended that in order to engage the State's responsibility in an expulsion case it was necessary for the applicant to establish, first, that it was reasonably foreseeable for the State that the action or inaction would result in harm and, secondly, that the harm would reach the threshold of severity of Article 3 treatment. The analysis by the Court in an expulsion case was no different from that in any other case involving alleged future harm under Article 3; and the analysis in an expulsion case involving AIDS or other serious illness was no different from that where the risk of ill-treatment emanated from the public authorities in the receiving country. Moreover, there was no conceptual distinction between acute suffering occasioned by the removal of someone at death's door, who was psychologically prepared for death, and someone who was not so psychologically prepared, having been brought back from the brink of death by treatment which it was proposed to discontinue.

In the instant case there was on the evidence a stark contrast between the applicant's current situation and what would befall her if removed. The Adjudicator found the foreseeable consequence of the expulsion to be exposure to acute physical and mental suffering, followed by an early death. This finding was not displaced throughout the domestic proceedings and was also reached expressly in the speech of Lord Hope (see paragraphs 14–17 above).

The applicant submitted that five of her six siblings had died of HIV-related illness in Uganda. She had witnessed their deaths and knew from first-hand experience that all Ugandan doctors could do was to attempt to alleviate symptoms. The hospital in her home town was very small and unable to cope with AIDS. She was too weak to work and would not be able to support herself or pay for medication if returned to Uganda. Her quality of life would be appalling; she would quickly relapse into very poor health and she had no relatives left alive to look after her. During her years in the United Kingdom she had formed a private life on the basis of her associations and contacts with people and organisations which had helped her to come to terms with her illness and provided the medical, social and psychological support she needed.

The Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw, Poland, submitted that the standards established by the Court would affect large number of AIDS sufferers and the court should seize the opportunity to define the factors to be taken into account when deciding on the expulsion of an HIV/AIDS infected person. Such factors should include the acquired rights of a person who had been admitted to a host country and treated there using antiretroviral therapy; the medical condition of the person to be removed, principally the degree of dependence on antiretroviral therapy; the availability of medication in the country of origin to the individual in question.

According to the Court's constant case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006). The 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, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (Pretty v. the United Kingdom, 2346/02, § 52, ECHR 2002-III; Kudła v. Poland[GC], no. 30210/96, § 94, ECHR 2000-XI; Keenan v. the United Kingdom, no. 27229/95, § 116, ECHR 2001-III; Price v. the United Kingdom, no. 33394/96, § 30, ECHR 2001-VII).

It is the Court's settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy[GC], no. 37201/06, §§ 124–125, ECHR 2008).

Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates 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 (H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 32; Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-IV, § 44).

In addition, aside from these situations and given the fundamental importance of Article 3 in the Convention system, the Court in the above-cited D. v. the United Kingdom case (§ 49) reserved to itself sufficient flexibility to address the application of Article 3 in other contexts which might arise, where the source of the risk of proscribed treatment in the receiving country stemmed from factors which could not engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, did not in themselves infringe the standards of Article 3.

The applicant in D. v. the United Kingdom was a national of St Kitts, who had been convicted and sentenced in the United Kingdom in connection with a drugs offence. When he had completed his sentence of imprisonment the United Kingdom authorities sought to deport him to St Kitts. He was, however, by that time in the advanced stages of AIDS. When the Court examined the case, his ‘CD4’ cell count was below 10, he had suffered severe and irreparable damage to his immune system and his prognosis was very poor; it appeared that he was close to death. He had been counselled about dying and had formed bonds with his carers. There was evidence before the Court that the medical facilities in St Kitts did not have the capacity to provide the applicant with the treatment he needed and he had no family home or close relatives able to look after him there. The Court held (§§ 53–54) that,

Since the judgment in D. v. the United Kingdom, the Court has never found a proposed removal of an alien from a Contracting State to give rise to a violation of Article 3 on grounds of the applicant's ill-health.

In B.B. v. France, no. 30930/96, Reports 1998-VI, the applicant, who had been serving a period of imprisonment in France, was suffering from AIDS with acute immunosuppression. His condition had reached an advanced stage, requiring repeated hospital stays, but had stabilised as a result of antiretroviral treatment which he claimed would not be available to him in his home country, the Democratic Republic of Congo. The Commission in its report on the case had found that it was highly probable that if the applicant were to be deported he would not have access to treatment designed to inhibit the spread of the virus and that the numerous epidemics raging in his country would increase the risk of infection. To expect him to confront his illness alone, without any support from family members, was likely to make it impossible for him to maintain human dignity as the disease ran its course. It concluded that deporting him would amount to a violation of Article 3. The case was referred to the Court, but before it could examine it the French Government gave an undertaking that the applicant would not be deported and the case was therefore struck out of the Court's list.

In Karara v. Finland, no. 40900/98, Commission decision of 29 May 1998, the applicant, a citizen of Uganda, had been treated in Finland for an HIV infection since 1992. The Commission distinguished the case from D. v. the United Kingdom and B.B. v France on the ground that the applicant's illness had not yet reached such an advanced stage that his deportation would amount to treatment proscribed by Article 3 and it declared the application inadmissible.

The applicant in S.C.C. v. Sweden (dec.), no. 46553/99, 15 February 2000, was a Zambian national who had been refused leave to enter Sweden, where she had previously lived and where she had been treated for HIV. The applicant submitted medical evidence to the effect that life-prolonging treatment would have a much better success rate if she was given the chance to continue it in Sweden since the standard of care and monitoring possibilities in Zambia were reduced in comparison. The Court declared the application inadmissible, on the basis that, according to a report from the Swedish Embassy in Zambia, the same type of AIDS treatment was available there, although at considerable cost, and that the applicant's children as well as other family members lived there. Taking into account the applicant's present state of health, her removal to Zambia would not amount to treatment proscribed by Article 3.

The following year the Court delivered judgment in Bensaid v. the United Kingdom, no. 44599/98, ECHR 2001-I. The applicant, an Algerian national, was a schizophrenic who had been treated for this illness for some years in the United Kingdom. The Court unanimously rejected the complaint under Article 3 and held as follows (§§ 36–40):

In Arcila Henao v. The Netherlands (dec.), no. 13669/03, 24 June 2003, the applicant was a national of Colombia who, while serving a prison sentence for drug trafficking, was found to be HIV positive and was thus treated using antiretroviral medication. The Court found that the applicant's present condition was reasonable, but that he might relapse if treatment were discontinued. It noted that the required treatment was ‘in principle’ available in Colombia, where the applicant's father and six siblings resided. The Court distinguished the case from D. v. the United Kingdom and B.B. v. France (both cited above), on the ground that the applicant's illness had not reached an advanced or terminal stage and that he had a prospect of medical care and family support in his country of origin. It did not, therefore, find that the circumstances of the applicant's situation were of such an exceptional nature that his expulsion would amount to treatment proscribed by the Convention and it therefore declared the application inadmissible.

The applicant in Ndangoya v. Sweden (dec.), no. 17868/03, 22 June 2004, was a Tanzanian national who had been treated with antiretroviral medication which been successful in reducing his HIV levels to the point where they were no longer detectable. It was said that the prospects of his receiving that treatment in Tanzania were very slim and that its interruption would lead to a relatively rapid deterioration of his immune system, to the development of AIDS within one to two years and death within three to four years. The application was declared inadmissible, on the grounds that the applicant's illness had not reached an advanced or terminal stage; adequate treatment was to be had in Tanzania, albeit at considerable cost and with limited availability in the rural area from whence the applicant came; and that he maintained some links with relatives who might be able to help him.

A similar conclusion was reached in Amegnigan v. the Netherlands (dec.), no. 25629/04, 25 November 2004, where the applicant, who came from Togo, had been treated with antiretroviral treatment in the Netherlands. Medical evidence indicated that as soon as the therapy was stopped he would fall back to the advanced stage of the disease which, given its incurable nature, would entail a direct threat to life. A report on local conditions in Togo indicated that, while the treatment was available there, a person who did not have health insurance would find it difficult to afford it if relatives were unable to provide financial support. The application under Article 3 was declared manifestly ill-founded, on the grounds that the applicant had not reached the stage of full-blown AIDS and was not suffering from any HIV-related illness. Whilst acknowledging the assessment of the applicant's treating specialist doctor that the applicant's health condition would relapse if treatment would be discontinued, the Court noted that adequate treatment was in principle available in Togo, albeit at a possibly considerable cost.

In summary, the Court observes that since D. v. the United Kingdom it has consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D. case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country.

Although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 26). Furthermore, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 89). Advances in medical science, together with social and economic differences between countries, entail that the level of treatment available in the Contracting State and the country of origin may vary considerably. While it is necessary, given the fundamental importance of Article 3 in the Convention system, for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases, Article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the Contracting States.

Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost.

The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, she does not complain before the Court that her removal to Uganda would put her at risk of deliberate, politically motivated, ill-treatment. Her claim under Article 3 is based solely on her serious medical condition and the lack of sufficient treatment available for it in her home country.

In 1998 the applicant was diagnosed as having two AIDS defining illnesses and a high level of immunosuppression. As a result of the medical treatment she has received in the United Kingdom her condition is now stable. She is fit to travel and will remain fit as long as she continues to receive the basic treatment she needs. The evidence before the national courts indicated, however, that if the applicant were to be deprived of her present medication her condition would rapidly deteriorate and she would suffer ill-heath, discomfort, pain and death within a few years (see paragraphs 14–17 above).

According to information collated by the World Health Organisation (see paragraph 19 above), antiretroviral medication is available in Uganda, although through lack of resources it is received by only half of those in need. The applicant claims that she would be unable to afford the treatment and that it would not be available to her in the rural area from which she comes. It appears that she has family members in Uganda, although she claims that they would not be willing or able to care for her if she were seriously ill.

The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue so to provide for her.

The Court accepts that the quality of the applicant's life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide.

In the Court's view, the applicant's case cannot be distinguished from those cited in paragraphs 36–41 above. It does not disclose very exceptional circumstances, such as in D. v. the United Kingdom (cited above), and the implementation of the decision to remove the applicant to Uganda would not give rise to a violation of Article 3 of the Convention.