Medical treatment human rights cases and Rose Akhalu

By Colin Yeo, Garden Court Chambers, reposted from Free Movement , 11 September 2013.

The case of Rose Akhalu (health claim: ECHR Article 8) [2013] UKUT 400 (IAC) offers a glimmer of hope to some migrants dependent on health care in the UK facing removal. These cases can involve people being sent to their country of origin to die an avoidably early and unpleasant death. It is an extraordinarily difficult and emotive subject and has been covered here on this blog before (GS (India) and medical treatment cases).

220px-HemodialysismachineWhat was not covered on the blog – I cannot and do not cover everything – was the follow up to that last post, the actual outcome of the remitted GS India case, reported as GS and EO (Article 3 – health cases) India [2012] UKUT 00397 (IAC). The tribunal dismissed the appeal on Article 3 grounds, holding that the threshold for Article 3 was not met even in a case where a man would die within two weeks of removal from avoidable organ failure. The tribunal blamed the state of the existing higher case law by which it was bound, describing that case law as ‘not altogether satisfactory’.

As things stand, it is almost impossible to imagine a case that might actually succeed under Article 3. That may change following the hearing for permission to appeal to the Court of Appeal at the end of next week, but that remains to be seen.

However, in GS the tribunal also held that a different approach is required under Article 8, observing:

an Article 8 proportionality analysis might yield a different outcome in other cases, possibly where the claimant had a lawful permission to reside in the host state before the disease was diagnosed.

My new colleague at Garden Court, Ronan Toal (I’m the new one, here’s been here for yonks), developed that point in Akhalu and relied on Article 8 rather than Article 3, securing a fantastic outcome for the client (Garden Court coverage: Home Office fails in bid to send transplant patient to “certain death”).

Rose Akhalu’s case has had a lot of press coverage and you can read the full facts for yourself in the determination. In short, she came to the UK as a degree level student and it was only some time after arrival that she fell ill and was diagnosed with kidney failure. She received life sustaining dialysis for a time, managed to finish her degree and graduated and then later received a kidney transplant. The Home Office accepted that she would not be able to access treatment in Nigeria and so would die within weeks.

Building on the latest incarnation of GS India, the tribunal in Akhalu held as follows:

44. The correct approach is for the judge to have regard to every aspect of the claimant’s private life here, as well as the consequences for her health of removal, but to have in mind when striking the balance of proportionality that a comparison of levels of medical treatment available is something that will not in itself have any real impact on the outcome of the exercise. The judge must recognise, as did Judge Saffer, that it will be a rare case that succeeds where this is an important aspect of the claimant’s case.

45. Put another way, the consequences of removal for the health of a claimant who would not be able to access equivalent health care in their country of nationality as was available in this country, are plainly relevant to the question of proportionality. But when weighed against the public interest in ensuring that the limited resources of this country’s health service are used to the best effect for the benefit of those for whom they are intended, those consequences do not weigh heavily in the claimant’s favour but speak cogently in support of the public interests in removal.

The tribunal went on to uphold the first tier judge’s decision to allow the appeal, dismissing the Home Office’s attempt to have that decision overturned.

The outcome can be contrasted with another new case, Okonkwo (legacy/Hakemi; health claim) [2013] UKUT 401 (IAC). The facts were similar to Akhalu, in that the main appellant came to the UK as a student, fell ill and was diagnosed with kidney failure after arrival and received life sustaining dialysis then an organ transplant. She would die swiftly and unpleasantly if removed. Here, though, the appellants through their representative relied on Article 3 and on a Legacy backlog argument.

The tribunal dismissed the appeal, but in doing so explicitly invited further consideration of the case:

We would be rather concerned if this conclusion was the last judicial examination of the issue and if it had been we would have positively invited the appellants to submit full evidence of their economic resources; their most likely residence in Nigeria and the costs of medication and care there and make a fresh claim in the light of Akhalu and the arguments reflected therein.

The tribunal goes on to note that for technical reasons, no removal decision had been made and once one was forthcoming that would give rise to a right of appeal to the tribunal, at which point Article 8 human rights arguments could be properly and judicially considered. It seemed to be taken as a given that the Secretary of State would not grant leave of her own motion.

Lawyers take note: health cases are almost bound to fail on Article 3 but in certain circumstances can still succeed on Article 8 grounds.

Roseline Akhalu

Roseline Akhalu

Roseline Akhalu, the kidney transplant patient who faced the threat of removal to Nigeria where she would have died within a matter of weeks, has heard today that the Home Office has given her leave to remain until at least February 2016. Public Interest Lawyers who have represented Rose since she was first detained by the UK Border Agency in March 2012 confirmed that there has been no appeal lodged by the Home Office against an Immigration Appeal Tribunal’s ruling that Ms Akhalu could lawfully remain in the United Kingdom. They will be pressing the Home Office to grant their client indefinite leave to remain in light of the exhaustion of the Secretary of State’s appeal rights in this case.

On receiving news that she had won the right to stay in Leeds and continue with her life-saving treatment Rose told the support campaign:

“I would like to thank all my supporters who have helped me so much.”

“I am free at last!”

Rose is now hoping to find a job that will put her years of community volunteering to good use.

Home Office fails in bid to send transplant patient to “certain death”

[Originally posted on the Garden Court Chambers website]

In a case described by her barrister, Ronan Toal, as likely to determine whether his client will be able to live a relatively healthy and long life or whether she will face an extremely distressing and undignified death within weeks, Roseline Akhalu last week won the latest – and her supporters hope the last – stage of her fight to remain in UK.

The Home Office had long accepted that Akhalu, a kidney-transplant patient who came to the UK on a prestigious Ford Foundation scholarship in 2004, faced “inevitable and rapid” death if returned to Nigeria where she could not afford preventative and palliative care, but nevertheless continued to pursue her removal from the UK.

The Upper Tribunal last week found that a First-Tier judge who allowed Akhalu’s appeal late last year, on the grounds that the Home Office action amounted to a disproportionate interference with her right to respect for her private life, “did not make an error of law” and that “the circumstances here were, if not truly unique, so exceptional as to stand out from the ordinary run of cases”. The Secretary of State’s appeal was therefore dismissed.

Akhalu’s case has sparked a grassroots campaign involving community, church and solidarity groups across the UK. In extraordinary scenes on 18 July, more than 30 of Akhalu’s supporters travelled down from Yorkshire to pack the Upper Tribunal, a non-descript office building in central London usually known only to lawyers and their clients.

Her legal team successfully argued that removal to Nigeria would be a disproportionate interference with her Article 8 right to respect for her private life. The tribunal also recognised the “extensive and productive” contribution the 49-year-old has made to her community while in the UK. If now granted leave to remain and the right to work, she plans to start an NGO and continue her activities with church groups and asylum support projects.

“The Home Office, and even the press, might say this is another ‘Article 8′ human rights case,” said Ronan Toal, “but as Sedley LJ observed in the Court of Appeal case of JA (Ivory Coast), there is a “a moral duty to help others in need” that serves as a legitimate consideration when evaluating state action of this kind. Whether we cast it in terms of ‘disproportionate interference with a human right’ weighed against the ‘economic well-being of the UK’, or by simply reaching for what is intuitively and obviously humane, condemning Rosaline to certain death would have been grotesque and nihilistic.”

Her case also provides a powerful example of the potentially disastrous consequences that could result from restricting access to judicial review. Her present legal team was instructed after she was detained in order to be removed to Nigeria and after her claim for judicial review of the Home Office refusal to accept a fresh human rights claim had been rejected on the papers. She was nevertheless able to obtain an injunction to stop her removal and to secure the right of appeal that she has now won only because she was able to renew her application for judicial review orally. Had the government’s proposal to restrict the right to renew judicial review proceedings been implemented, then she would have been removed to Nigeria about a year ago and would have been dead within weeks.

Roseline Akhalu was represented at her appeal and in her claim for judicial review by Ronan Toal, who was instructed by Tessa Gregory of Public Interest Lawyers.

Click here to download a copy of the full judgment.

The case became a cause célèbre. The Leeds Catholic Charismatic Renewal Group organised and paid for the coach that brought her friends and neighbours from Leeds to London for the hearing.

Roseline’s story has attracted widespread media coverage, including by the NewStatesman, The Guardian, The Huffington Post, the Yorkshire Evening Post, and the Open Democracy foum.

Ronan Toal is a member of the Garden Court Immigration Team.

Victory for Rose in Immigration Appeal Court!

On Friday 26 July, judges in the Upper Immigration and Asylum Tribunal rejected an appeal from the Home Secretary, Theresa May, that Roseline Akhalu, a 49-year old former postgraduate student from Leeds should be returned to Nigeria where she would have faced the prospect of death ‘within weeks’ [judgment PDF].
On hearing news of the judgment Roseline Akhalu told her friends and supporters:
“Thank you everybody for the support, for the prayers, for the publicity, for everything. Hopefully the UKBA will let matters rest at this stage.”
English: The UK's new Home Secretary, Theresa ...

Home Secretary, Theresa May, has been repeatedly defeated in attempts to send Rose Akhalu to a certain and painful death (Photo credit: Wikipedia)

Roseline Akhalu

Roseline Akhalu is hoping to live a normal life among her friends and fellow parishioners after news of the judgment.

Judge Southern on behalf of the Upper Tribunal in rejecting the Home Office’s appeal said:
“we are satisfied that the [original] judge did not make an error of law…the circumstances here were, if not truly unique, so exceptional as to stand out from the ordinary run of cases where a claimant complains of being disadvantaged by a comparative lack of medical care in his or her own country. That was not the basis of the decision here”.
Tessa Gregory, a solicitor at Public Interest Lawyers, representing Ms Akhalu said:
“We are delighted that the Upper Tribunal has dismissed the Home Secretary’s appeal and found in Rose’s favour. The facts of Rose’s case are exceptional and have been rightly recognized as such. It must now be time for the Home Secretary to accept that it would be unlawful to deport Rose to a certain and lonely death in Nigeria. No more money should be wasted on further appeals and Rose should be allowed to get on with her life within the community that has given her such incredible support throughout this ordeal.”
Esme Madill on behalf of the Save Rose Campaign declared:
“We are overjoyed with today’s judgment. Roseline has had to endure months of needless worry and anxiety because of this groundless and expensive appeal by the Home Secretary, which has aggravated Rose’s fragile health condition. We really hope that the Home Office now has the sense to admit defeat so that Rose can get on with her life and continue contributing to her community as she has been doing for so many years.”

Kidney Transplant Patient Faces New Agonising Court Battle

Oscar-Winning actor Colin Firth broke off filming with Woody Allen in France this week to lend his support to a Leeds kidney transplant patient who faces death if she is forcibly returned to Nigeria from where she came to study for a Masters Degree in Leeds nine years ago.

Firth told Rose’s campaign supporters:

“I need hardly add my voice to the wholehearted love and support, surrounding Rose in her community and among her friends.”

“We all hope that the good sense and humanity displayed so far by the courts will now prevail and that her life will be saved.”

Image

Roseline (centre) with her fellow parishioners outside St Augustine’s Church, Harehills, Leeds.

On Thursday (18 July), Roseline Akhalu faces an appeal hearing in London at the request of the Home Secretary, Theresa May, who has accepted that Roseline will die within weeks of being returned to Nigeria. Akhalu’s local MP Greg Mulholland is appalled by the Home Office’s continued persecution of Ms Akhalu. He told the Save Rose campaign:

“Despite support for Rose from across the community and indeed the country, the UKBA continues to waste taxpayer’s money seeking deportation of this seriously ill woman. It is time for the UKBA to stop this and to allow Rose to live in peace in the UK.”

 

The Bishop of Ripon and Leeds, the Right Reverend John Packer has also lent his support to Roseline:

“My prayers are with Rose who faces death from her illness if she is forced to return to Nigeria,” he said. “I pray that the court will affirm her right to remain.”

Over 1,700 people have signed a petition demanding that Rose be allowed to live. Christian and faith groups across Leeds and Yorkshire will be organising prayers for Rose this week. Her friends and supporters will be travelling by coach from Leeds to the hearing on Thursday where a candle lit vigil will also be held outside the court from 12.30 pm.

Akhalu’s lawyer, Tessa Gregory from Public Interest Lawyers, explained why the Home Office should not be bringing this case:

“We should not be having to go through another appeal and Rose should have been left to get on with her life. Rose is an upstanding and deeply loved member of her local community whose health and wellbeing has been seriously compromised by the cruel and senseless determination of the UK Border Agency to pursue her through the courts – in spite of two judges finding in her favour and in spite of the unnecessary cost to the public purse which far outweighs the cost of her treatment.”

New Court Date for Roseline

We have just heard from Rose’s legal team that they have been successful in their request that Rose’s case be heard earlier due to the impact on her health and well being. The new hearing date is now on 18 July at Fields House in London.

PLEASE can everyone seek to publicise this – articles and letters to the national and local press would be fantastic. There is an archive of all press here (currently being updated).

Rose is continuing to receive wonderful support from her Church and from the local community in Leeds. One of the local Christian faith groups is lending the campaign their minibus for the day so that supporters can be transported to London and Rose’s parish priest has encouraged the congregation to pray for her and she is being prayed for at the Chapeltown and Harehills Churches Together group who meet monthly. Recently the New Testament Church of God, a local influential Pentecostal Church in Leeds have joined the prayer list.

Do contact us if you can help with press coverage, want to attend the hearing or would like to send a message of support to Rose.

Please also keep sending letters to Theresa May and copies to us via the Facebook page (message any of the administrators for contact details).

MANY THANKS to everyone who is part of this campaign – there would not be a campaign without you.

The Save Rose Campaign

“Dig My Own Grave” – Saving Lives or Protecting Borders

Roseline Akhalu

Roseline Akhalu

A compelling new documentary film about Roseline Akhalu by Humbledinger Productions has just been released:

“An arm of the government has done everything to save my life, then the second arm wants to take it away just like that.”

http://www.unheardvoices.org.uk/dig-my-own-grave-saving-lives-or-protecting-borders/

Produced and directed by Joe Bream and