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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.

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

Support the Campaign for Roseline Akhalu

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Roseline Akhalu won a prestigious and highly competitive Ford Foundation scholarship to the University of Leeds to study for a Masters degree in Development Studies in 2004. After her studies she planned to return to her native Nigeria to promote the cause of girls’ education from poor rural backgrounds like her own. Rose chose to study in the UK rather than the United States because she could complete her Masters in less time and thus return sooner.

During the course of her studies, Roseline was diagnosed with end stage renal failure, and was put on kidney dialysis. In 2009 her doctors at St James Hospital were able to find a donor match and a kidney transplant was successfully undertaken. Nevertheless, Roseline’s condition still requires constant medication and frequent monitoring. Her health will never be what it once was.

Roseline was twice detained by UK Border Agency officials in 2012 and during the first trip to Yarl’s Wood she developed a urinary tract infection as a result of the security escort company, Reliance, refusing to allow her a toilet stop after several hours despite her serious kidney condition [report].

Notwithstanding Roseline’s health difficulties and the refusal of the Home Office to grant her leave to remain, for many years Rose has significantly contributed to the life of her Catholic church where she is a much-loved member of the congregation. It is no surprise therefore that at her immigration tribunal hearing in Bradford on 21 November 2012, the court room was full of her fellow parishioners and supporters from across Yorkshire, many of whom had written moving letters to the court begging for the government not to take Rose away from them.

Long running coverage and support has come from the National Kidney Federation, from Madeleine Moon MP on behalf of the All Party Parliamentary Kidney Group, from the local press and radio as well as national television, newspapers, periodicals and blogs including The Yorkshire Post, BBC Radio Leeds, Radio Aire, The Guardian, the New Statesman, ITV News, Channel 4 News and OpenDemocracy. Over 1,600 people from the UK and around the world have signed an online petition at http://www.gopetition.com/petitions/stop-the-deportation-of-transplant-patient-roseline-ak.html on behalf of Roseline and many hundreds more have signed a paper equivalent.

At her tribunal hearing the Home Office accepted the evidence that Roseline would, if removed to Nigeria, not be able to afford the immunosuppressant drugs she needs to survive. In other words, she would die a painful death and within a matter of weeks. Nevertheless, the Home Office continued to maintain that her removal was proportionate and not in breach of her human rights.

Immigration Judge Saffer, after considering all the evidence, found that this was an unusual case where the removal of Roseline would breach her right to a private and family life protected by Article 8 of the European Convention on Human Rights. The Judge found that Roseline had established a private life of value to her, members of the Church and the wider community. He took note of the fact that Roseline came here legally, was diagnosed whilst here legally, that the cost of her ongoing treatment was not excessive and that she would die quickly in distressing circumstances if returned. After considering all the evidence he found that the Home Secretary should have granted Roseline leave to remain and allowed the appeal [report].

The Home Office then sought further leave to appeal against the First Tier Immigration Tribunal, which was refused by the reviewing judge in December who found no grounds in law for challenging Judge Saffer’s determination.

On 11 February of this year, Ms Akhalu’s MP, Greg Mulholland (Leeds North West) asked why too many UKBA decisions are still wrong and the process is taking far too long, in which case does the Home Secretary not think it extraordinary that, notwithstanding the clear ruling of a judge on 29 November and previous tribunal decisions, UKBA is still seeking to prevent Roseline Akhalu from staying in this country, despite the fact that if she is deported she will die?
The Home Secretary has not to our knowledge replied to the individual case, which she mistakenly assumed had followed a conventional asylum application. Instead her law officers decided to lodge an appeal with the Upper Immigration Tribunal which has been allowed and is scheduled to be heard on 16 July 2013 in London.

We are urging all friends and supporters of Rose to write to the Home Secretary to demand that she call off this vindictive pursuit of a sick and vulnerable woman who is loved and cherished in her Leeds community. Please click here for a model letter and feel free to adapt and put into your own words. Please send a copy of your letter and if possible a scan of any reply from the Home Office to justice4roseline@gmail.com

We also have a Facebook page that contains lots of information about the campaign and comments from supporters.

You can follow the campaign on Twitter @compassion4rose