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Kidney transplant patient loses human rights immigration case

Hareef, R (On the Application Of) v Secretary of State for the Home Department [2016] EWHC 873 (Admin) is a case that was heard in the wake of GS (India), & Ors v SSHD [2015] EWCA Civ 40, which concluded that in asylum claims, Article 3 can have no real application in respect of an asylum seeker suffering from a serious medical condition who will not be able to acquire the necessary medical treatment back home if deported.

Like the claimants in GS, Mr Hareef suffered from chronic renal failure. On arriving from Afghanistan in 2009, he collapsed and was taken to hospital and received dialysis. His application for asylum was refused, and his appeal likewise refused by FTTJ Eban in 2012.

He was refused permission to appeal by both the FTT and UT, but was granted permission to apply for JR in 2013 on grounds that in her determination on Article 3, the FTT Judge erroneously believed she was bound by the decision of the UT in GS (India) [2011] UKUT 35, without realising it had been remitted to the UT for reconsideration by the Court of Appeal in January 2012. The application was then stayed pending the Court of Appeal’s decision in GS (India), which was heard in January 2015. The appellant has since been granted discretionary leave to remain until 2018. He also underwent a successful kidney transplant in February of this year, meaning he will no longer require dialysis, but will require lifelong monitoring.

At the full hearing, it was argued by the SSHD that the claim had become academic as he has been granted discretionary leave to remain until 2018. Mrs Justice Lang disagreed as this would leave the appellant in a less secure position than if he succeeded on his asylum claim. However she went on to refuse his application for judicial review on asylum grounds, as well as Article 3 and Article 8 grounds. In considering his Article 3 grounds, which pertained to his medical condition, Lang J followed LJ Laws in GS (India), who in turn re iterated the principal derived from D. v. THE UNITED KINGDOM – 30240/96 – Chamber Judgment [1997] ECHR 25 and N v. Secretary of State for the Home Department [2005] UKHL 31, – “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”. All these cases accept that there are very exceptional circumstances when Article 3 can apply such as with D who “ 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”. In other words, you need to be at death’s door to succeed on this ground. Lang J did not find there were such circumstances in this case.

Although Lang J granted the appellant’s application for JR on Article 8 grounds, this was only because the judges in the UT had failed to give reasons for refusing his appeal on Art 8 grounds. She then went onto refusing him relief under Article 8, as she agreed with the FTTJ that there was no merit in them, given at the time of the appeal in the FTT, he had only been in the UK for less than 3 years, and had failed to form any significant relationships. However she did suggest that he may well be in a position to make a fresh claim under Article 8 in the event he is threatened with removal in the future.

Chris McWatters
Chris McWatters Chris specialises in family law and areas of cross over with immigration law, having acted for vulnerable migrants in family proceedings. He is a contributor to the latest 10th edition of Macdonald's Immigration Law and Practice.

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