Wednesday 28 May 2008

Grand Chamber judgment in N. v. UK

Yesterday the Grand Chamber issued its judgment in the case of N. v. the United Kingdom. The case concerned a woman with HIV/AIDS who came to the United Kingdom from Uganda in 1998 and was, due to the seriousness of her condition, immediately hospitalised. Her application for asylum was rejected and, as a last resort, she claimed before the European Court of Human Rights, that expulsing her would be contrary to the probihition on inhuman and degrading treatment of Article 3 ECHR, for lack of adequate HIV/AIDS health care facilities in Uganda. The Grand Chamber held, by a big majority of fourteen votes to three, that expulsion would not cause a violation of Article 3.

The Court, and here one finds one of the main points of the importance of this judgment, clearly set out the principles applying in cases of expulsion of severely ill persons, not only those with HIV/AIDS. It held - in a confirmation and clarification of earlier case law - that such expulsion would violate Article 3 only in "very exceptional cases". Three considerations are relevant in the Court's assessment: (1) the seriousness and stage of the illness; (2) the availability of adequate treatment in the country of destination; (3) the availability of support by one's relatives.

This is one of those cases in which the Court faced terrible moral dilemmas and cut this difficult Gordian knot in a way which is bound to cause a lot of criticism (see e.g. below for NGO reactions). On this judgment, it is indeed difficult to fully agree with the Court. Even if the principles seem reasonable, their application is less so. The Court held that the applicant's condition was stable and that there might be help from the applicant's family. On the availability of adequate treatment it cited a WHO report on Uganda, which indicated that antiretroviral medication was available in Uganda, "although through lack of resources it is received only by half of those in need" (my emphasis). As the Court indicates all three criteria always involve some amount of "speculation" (para. 50). One may only wonder why the Court then did not test in more detail whether help from relatives and actual access to the medicines would actually be available. Appearantly, the "very exceptional circumstances" only exist if they are exceptional on all three counts and not only on some of them. See also the joint dissenting opinion of judges Tulkens, Bonello and Spielmann for a convincing critique of the Court's position (including a remark on the unwarrantedness of possible fears that any other outcome would have turned Europe into the "sick-bay" of the world!).

Disappointing to many as this case may seem, it is in line with earlier case law to a great extent. In fact, the Court has held only once in a health case context, in a case of an applicant with HIV/AIDS who would be sent back to the tiny island of St. Kitts (D. v. the United Kingdom), that Article 3 would be violated if the applicant would be expulsed. For a more elaborate overview of the Court's case law on the issue of expulsions of persons with health problems under Article 3 ECHR, see: Veelke Derckx, 'Expulsion of illegal residents (aliens) with medical problems and Article 3 of the European Convention of Human Rights', in the European Journal of Health Law vol. 13 (2006) pp. 313-319 (electronic access e.g. through Ingenta Connect).

The judgment itself can be found here and the press release here. This was one of the rare cases in which the Court held a hearing. Since last year, the Court's website features webcasts of such hearings. Click here for the webcast of the hearing in N. v. UK. The BBC and the Independent also reported on the case. NGOs in the field of health have heavily criticised the Court's judgment as a "setback for human rights". See for example this report on the website of Aidsmap.