New cases

The luggage carousel of the UK courts has deposited a collection of interesting new cases. I’ll take them one at a time.

Probably the most important of these is KH (Afghanistan) v SSHD [2009] EWCA Civ 1354, a long-awaited decision from the Court of Appeal on medical treatment, Article 3 and Article 8 in the post-N world. Although this case involved mental illness, the decision is highly relevant to HIV/AIDS cases. Longmore LJ rejects the argument that there is a conflict between Pretty v UK and N v UK, making it clear that his view is that N v UK is Strasbourg’s considered view of the subject of the threshold to be met for a breach of Article 3 in cases where it is claimed that removal will result in a deprivation of medical treatment or other support. He reiterates that the test is whether a case is ‘very exceptional’ and goes into some detail in considering what might or might not be exceptional. The following passage gives a flavour of the test to be met:

33. The truth is that the presence of mental illness among failed asylum-seekers cannot really be regarded as exceptional. Sadly even asylum-seekers with mental illness who have no families can hardly be regarded as “very exceptional”. If this case is to be regarded as a very exceptional one, there will inevitably be cases which will be indistinguishable. A person with no family would have to be equated with a person who has a family but whose members are unwilling or unable to look after him or her. I cannot think that Baroness Hale had such a wide category in mind. In order for a case to be “very exceptional” it would have to be exceptional inside the class of person with mental illness without family support. Perhaps a very old or very young person would qualify but hardly an ordinary adult.

Lord Justices Aitken and Sedley agree, although Sedley does not endorse the reasons given.

Arguably, the Court has fallen into the trap of considering cases from the starting point of an artificial ‘exceptionality’ test rather than the facts of the individual case. This could lead to a re-run of the Razgar/Huang saga, in which the House of Lords had to emphasise that this is a wrong-headed approach in a human rights context. With Lord Bingham now retired and in the context of Article 3 rather than Article 8, the Supreme Court may perhaps now consider that this approach is not impermissible in this context.

The Court is also virtually silent on whether Article 8 might fill the protection vacuum left by the high threshold imposed on Article 3 cases. The possibility is summarily dismissed at paragraph 35. There may be further argument to be had on this subject in future.

There is no news yet on whether there will be an appeal in this case.