Category Archives: Garden Court Chambers

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.

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