In March 1998 a 24-year-old woman entered the United Kingdom from Uganda. She used a false name and a false passport. She was extremely ill and within a couple of days was admitted to Guy’s Hospital, where she was diagnosed with full-blown Aids and a cluster of Aids-related illnesses including Kaposi’s sarcoma. She had not known she had Aids and did not come here for medical treatment, but as a refugee. She had been kidnapped and held captive by the Lord’s Resistance Army for two years, then by another rebel group, the National Resistance Movement. She had been severely mistreated and repeatedly raped.
This woman, who is known as ‘N.’, applied for asylum on two independent grounds: first, under the 1951 Refugee Convention, that she would be persecuted by the Ugandan authorities, or at least that they would fail to protect her from the rebels; and, second, that to return her to Uganda would expose her to breaches of her rights under Article 3 of the European Convention on Human Rights. Asylum claimants usually base their applications on both Conventions. The Refugee Convention prohibits sending people back to places where they will face persecution by the state or its agents on grounds of race, religion, membership of a particular social group or political opinion; under the European Convention, it is unlawful for the Home Office to return a person to a place where there is a serious risk that her protected rights will be breached. Some of these rights are qualified (freedom of expression, for example), but Article 3 unconditionally forbids torture, inhuman or degrading treatment or punishment.
In 2001, in D. v. United Kingdom, the European Court of Human Rights found for a man in the terminal stages of Aids, who faced removal from the UK to St Kitts, where he would have received no medical care and had no family support. D. had not claimed under the Refugee Convention that he would be persecuted if returned to St Kitts, but the court found that his case fell within Article 3 of the European Convention: for the UK government to return a dying man to a place where he would receive no support, it held, qualified as inhuman or degrading treatment. The court said it was extending the scope of Article 3 to accommodate this ‘exceptional’ case.
In April 2001 the Home Office refused N.’s application for asylum. She appealed to an adjudicator, who dismissed her appeal under the Refugee Convention, finding that she faced no real risk of persecution by the state in Uganda: he believed her account of what had happened to her but found that the situation in Uganda had improved to such an extent that she was no longer at risk. He upheld her human rights claim, however, on the basis that to return a person as ill as she was would be degrading or inhuman. By October 2002 her doctors reported that she was well, stable and free from any significant illness; but they gave her a year at most to live if medication were withdrawn, as it would be in Uganda. The best treatment on offer there was provided by a UN programme which had reached 905 people out of an estimated 820,000 eligible Ugandans.
The Home Office appealed to the Immigration Appeal Tribunal (now abolished) which upheld the adjudicator’s decision that to return N. to Uganda would amount to a breach of her Article 3 rights. The Tribunal thought D. v. United Kingdom was a precedent that covered N.’s case.
The Home Office then went to the Court of Appeal, on the basis that the Appeal Tribunal had made an error of law. D. v. United Kingdom did not apply, it argued. The judges sitting on the Court of Appeal agreed (Lord Justice Carnwath dissented). They thought her case stretched Article 3 too far: D. was certainly going to die; N. might theoretically be able to get treatment, although this was extremely unlikely and, even if she did, it would not prevent her illness from getting worse.
N.’s lawyers had one last shot: the House of Lords. On 5 May this year (the day of the general election) the Lords published their judgment. They agreed with the Court of Appeal. Lord Hope of Craighead held that:
The function of a judge in a case of this kind . . . is not to issue decisions based on sympathy. Just as juries in criminal trials are directed that they must not allow their decisions to be influenced by feelings of revulsion or of sympathy, judges must examine the law in a way that suppresses emotion of all kinds. The position that they must adopt is an austere one. Some may say that it is hard-hearted. But the fact is that there are at least two sides to any argument. The consequences if the decision goes against the appellant cannot sensibly be detached from the consequences if the decision is in her favour. The argument, after all, is about the extent of the obligations under Article 3 of the European Convention on Human Rights . . . It is about the treaty obligations of the contracting states. The Convention, in keeping with so many other human rights instruments, is based on humanitarian principles. There is ample room, where the Convention allows, for the application of those principles. They may also be used to enlarge the scope of the Convention beyond its express terms. It is, of course, to be seen as a living instrument. But an enlargement of its scope in its application to one contracting state is an enlargement for them all. The question must always be whether the enlargement is one which the contracting parties would have accepted and agreed to be bound by.
The claim that ‘judges must examine the law in a way that suppresses emotion of all kinds’ is peculiar. The issue in N.’s case doesn’t really have anything to do with emotions: it is whether knowingly sending a person to a preventable death amounts to inhuman or degrading treatment. Either it does or it doesn’t. To say it does is not a judgment based on inappropriate – or indeed on any – emotion.
Lord Nicholls in his summing up asked:
Why is it unacceptable to expel a person whose illness is irreversible and whose death is near, but acceptable to expel a person whose illness is under control but whose death will occur once treatment ceases (as may well happen on deportation)?
As I see it, these questions are not capable of satisfactory humanitarian answers.
This makes it sound as if he thought there was no moral or practical difference, but Lord Nicholls too found that N.’s case fell outside Article 3. The factual distinction the courts drew between D. and N. was that D. would get no treatment and no support in St Kitts, while N. had a chance to get some treatment in Uganda, even though the chance was statistically insignificant and the treatment would be inadequate. That is surely a distinction without a difference.
What if N. had been suicidal? The same principles apply: if there is even the remotest possibility of help in the returnee’s country, a heightened risk of suicide adds nothing to an Article 3 claim. One might be forgiven for thinking that a person seriously contemplating committing suicide to avoid returning to another country is by definition in an extreme or exceptional state. Not so in the strange world of asylum law.
The technical points about the scope of the European Convention and the references to other cases don’t entirely explain the Lords’ decision. Lord Hope’s description of the convention as a ‘living instrument’ is the standard way of saying that it is not an inflexible thing whose meaning and interpretation are for ever fixed and unchangeable, but is meant to accommodate persons and situations its authors never dreamed of. The unspoken reason for the Lords’ decision is the fear of its wider consequences, of ‘opening the floodgates’.
The standard of protection given by the European Convention is commonly described as a floor, not a ceiling. In April 2003, Lord Woolf, the lord chief justice, said that ‘there is no doubt that the Human Rights Act provides solid foundations for the protection of our vulnerable minorities’, but added that ‘it is of crucial importance that we continue to build upwards.’ In what way does the rejection of N.’s appeal contribute to this process? Or is she not a member of ‘our vulnerable minorities’? Cynics say the Convention should be called the Convention of European Human Rights, and that non-Europeans don’t get much of a look-in.
N. seems to have been seen as forming the head of an endless queue of desperately ill people from all over the world who would come here to receive treatment on the NHS if she were allowed to stay. Her life must therefore be sacrificed, or at best rendered up to Strasbourg to be saved or sacrificed (her lawyers may yet argue her case before the European Court), for the greater good of keeping others like her out and the ‘floodgates’ closed.
There plainly would be a problem if the United Kingdom became a free Aids clinic for the world. It is worth asking what value is to be put on providing life-saving medical care for people not entitled to NHS treatment who have come to the UK in circumstances like N.’s. But the government chooses to spend money on all sorts of things: new intercontinental ballistic missiles worth more than £10 billion, biometric ID cards estimated at £19 billion, a computer system for Magistrates’ Courts which ended up costing £390 million (it was budgeted at £156 million). If it chose to, it could make resources available for people like N. Her treatment costs £7000 per year and there are thought to be between 7000 and 8000 people in the UK in her situation. The figures are high, but not prohibitive.
The court has only the individual case before it, however. It can’t be blind to the probable consequences of its decisions, but it doesn’t make policy or spending decisions. Its overriding duty is to do justice according to the law to the people who come before it. Should it allow anxiety about the cost of having to treat people like N. in the future to influence its decision as to whether N. should be given its protection now? ‘Pour encourager les autres’ is not a concept known to human rights law.
There was nothing ‘bogus’ about N. Her sufferings in Uganda were extreme, and she was fortunate to escape. She did not come to the UK in the expectation of receiving free healthcare. No one has doubted her good faith. And yet she is being treated in the same way as if she had made false claims in order to get treatment in this country. The attempts by the government to deny asylum seekers benefits, food, shelter and medical treatment (those waiting to be ‘removed’ are not eligible for free NHS treatment and are forbidden to work); the bureaucratic quagmire that faces them when they make their applications; legal aid cut to the bone and beyond; the hostile reception they are given by much of the local population, urged on by the press: all these features of the asylum seeker’s fate in Britain would scare off the faint-hearted, whether ‘bogus’ or genuine. Numbers are down. Rejoice. But the question won’t go away: why is it necessary to sacrifice N.’s life?