Neutral Citation Number: [2014] EWCA Civ 653

Case No: C5/2013/0286
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL 
(IMMIGRATION AND ASYLUM CHAMBER)
DUTJ Parkes
AA/01420/2010
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 15th May 2014
Before :

LORD JUSTICE MAURICE KAY
LADY JUSTICE BLACK
and
LORD JUSTICE LEWISON
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Between :

	AE (Algeria)	Appellant	
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	Secretary of State for the Home Department	Respondent	
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(Transcript of the Handed Down Judgment of
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Raza Husain QC and Chris Buttler (instructed by Aman Solicitors Advocates) for the Appellant
Lisa Busch (instructed by Treasury Solicitors) for the Respondent
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Hearing dates : 27 March 2014
Judgment
Lord Justice Maurice Kay:  
1.	The appellant is an Algerian national. He has a 6 year old daughter to whom I shall refer as Maya. Maya was born in Algeria. She has Spina Bifida. The undisputed evidence is that she is very severely disabled. She also has severe learning difficulties and extremely complex needs. When she was born the available healthcare in Algeria was incapable of meeting her needs. She arrived in the United Kingdom with her mother in January 2009 having been granted a visa specifically in order to receive medical care at Great Ormond Street Hospital. She has now been in this country for 5 years receiving highly specialised medical treatment and attending a special school in Enfield which provides her with a very high level of support. The appellant entered this country illegally at a later date. On 14 January 2010 the Secretary of State refused the appellant leave, and his family further leave, to remain in this country on account of Maya’s medical condition. An appeal to the First Tier Tribunal was dismissed on 16 September 2010. A further appeal to the Upper Tribunal (UT) was dismissed on 14 December 2012. Although the appeals originally embraced a claim to asylum, this is no longer pursued. The appeal to this Court is limited to Articles 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). It is common ground and the UT found that :
“This is not a case where [Maya] would die as a result of her removal from the UK but she would suffer a reduction in the level of care and support that she receives (and) this would also have consequences for her family.”
Indeed, the differentials in relation to medical, social and educational support as between this country and Algeria are very substantial indeed. 
2.	As in the recent case of R (SQ (Pakistan)) v Upper Tribunal [2013] EWCA Civ 1251, this case is concerned with the application of Articles 3 and 8 when it is proposed to remove a very sick child to his or her home country where available healthcare provision is substantially inferior but where the evidence does not point to the likelihood of an early death. The leading authorities in “health” cases concerned adults: D v United Kingdom [1997] 24 EHRR 423; N v Secretary of State for the Home Department [2004] 2AC 296; and its sequel in the European Court of Human Rights (ECtHR), N v United Kingdom [2008] 47 EHRR 39. It is well known that these authorities place a high hurdle in the way of adult applicants in health cases. In SQ, this court accepted that there can be circumstances in which the high threshold can be reached in relation to a child where it would not be reached in the case of an adult (paragraph 17). It also accepted that, in the light of Article 3.1 of the United Nations Convention on the Rights of the Child (UNCRC) and section 55 of the Borders Citizenship and Immigration Act 2009, special considerations in relation to children arise under Article 8 of the ECHR such that the best interests of the child are “a primary consideration”, as explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] (UKSC4). The submissions on the present appeal to a large extent replicate those advanced in SQ. However, the cases are necessarily fact sensitive. In SQ the appeal was dismissed in relation to Article 3 but was allowed, to the extent of a remittal to the UT, in relation to Article 8.
The Article 3 claim
3.	In my judgment in SQ I included extensive citations from the cases of D and N (see paragraphs 5-8). I do not propose to set them out again. It is sufficient to record that they established a test of exceptionality. In N the ECtHR observed that in D:
“The very exceptional circumstances were that the applicant 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.”
It is a fact that D is the only health case to have succeeded in the ECtHR, apart from BB v France (47/1998/950/1165) where the outcome proceeded on the basis of a concession rather than an  adjudication.
4.	In the present case the findings of the UT on Article 3 are contained in the following passages:
“31. Living in Algiers Maya did receive some medical attention. I accept that the care she received was less than she would receive in the UK and that she will have benefitted from the care and support that she and her family have received since they arrived here. I also accept that her welfare has improved with the treatment that she has received in the UK. If she were to return to Algiers it is clear that she would receive less medical support, that the burden on her parents and family overall would increase and that the family would have the burden of paying for her treatment.
…
33. Whilst her condition is difficult and her need for medical care substantial I find that her circumstances cannot be described as being so unusual that she meets the high threshold set out in the case of N. This is not a case where she would die as a result of her removal from the UK but [she] would suffer a reduction in the level of care and support that she receives, this would also have consequences for her family.”
It was also noted that, unlike a case such as D, Maya would, on return to her home country, continue to benefit from family support.
5.	On this appeal Mr Raza Husain QC submits that the UT was wrong in law to dismiss the Article 3 claim because it is sound on two distinct bases. First, to remove Maya to Algeria would be to expose her to inhuman or degrading treatment for which the Algerian authorities would bear responsibility because of the failure of Algeria to comply with its obligations under the UNCRC. This, it is said, is a classic Soering v UK (1989) 11 EHRR 439 type of case with consequences of the utmost severity. Secondly, and alternatively, it is submitted that to remove Maya to Algeria would involve the UK in subjecting her to inhuman or degrading treatment even in the absence of culpability on the part of the Algerian authorities. In this regard, it is said that the case satisfies the test of exceptionality as propounded in D and N. There is a positive duty to protect Maya from the risk of inhuman or degrading treatment of significant severity. Emphasis is placed on her status as a young child and on the context of the UNCRC and domestic child protection legislation.
6.	In my judgment, these arguments cannot succeed in this case any more than they could in SQ. Although it is not wholly apparent from the judgment in SQ, both of Mr Husain’s arguments were advanced in that case. He seeks to derive support from Mayeka and Mitunga v Belgium [2008] 46 EHRR 23. Whilst that decision of the Grand Chamber does illustrate how the age of the child can inform the content of the duty under Article 3, it is not a health case and its facts bear no resemblance to those of the present case. Nor do I find any reason to suppose that cases such as MSS v Belgium and Greece (2011) 53 EHRR 2 and Sufi and Elmi v UK (2012) 54 EHRR 9 are of assistance in the present context. It is true that in Mwanje v Belgium (2013) 56 EHRR 35, six of the seven judges expressed the hope that the Grand Chamber would one day revisit the high threshold in health cases set in N. However, that has not yet happened and, whilst the fact of childhood is relevant, on the existing authorities the reality is that the present appeal must fail in relation to the two alternative bases upon which it is put. It would require a significant extension of the Article 3 jurisprudence for this appeal to succeed and, in the light of the authorities, I do not consider that it would be appropriate for us to be so innovative.
Article 8
7.	SQ shows that, particularly in relation to a child, Article 8 may be more protective than Article 3. On the other hand, where it is engaged, the fact that it concerns a qualified right means that everything will ultimately depend on the balancing exercise pursuant to Article 8.2.
8.	The decision of the UT correctly referred to the “interplay of Article 8 and section 55 of the 2009 Act”. The judgment then contains the following relevant passages:
“34… the best interests of children have to be treated as a primary consideration in this case and that applies to Maya and her siblings. Her best interests also have to be assessed along with the competing public interest in the exclusion of those otherwise illegally in the UK and the maintenance of immigration control reflecting the economic wellbeing of the UK.
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36. On the evidence that is available it seems clear that it would be in Maya’s best interest medically to remain in the UK and that would no doubt benefit her siblings too. That they would benefit by remaining in the UK would not be surprising and I find that it would be in the best interests of Maya and her siblings to remain in the UK.
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41. The section 55 considerations are of course interrelated and include the fact that the children will be returned to live with their parents, the availability of treatment, and the fact that it has not been proved that the nature of the treatment available and the consequences of that treatment are such that they cannot be returned. I find it has not been shown not to be in the children’s best interests for them to be returned to Algeria. It is not suggested, nor supported by the jurisprudence, that the notion of the best interests means obtaining for Maya the best available medical treatment as such a finding would have the effect of rendering the established legal test inadmissible when applied to children with medical needs in relation to both the established thresholds and the comparison of available treatment in both the UK and the state to which any children are to be removed. Clearly there may be circumstances where there is tension between the authorities and the statutory provisions but I do not find the same to have been
42. Although the family have been in the UK for a limited period and in circumstances in which their presence has been precarious I accept that Article 8 is engaged. I do not accept that the removal of the appellant and his family would have such consequences as to place the UK in breach of its international obligations. Specifically, while taking into account consideration of the best interests of the children and Maya’s medical needs and Articles 3 and 8 I am satisfied that their removal is proportionate being justified by the need to maintain immigration control.”
It will be observed that the final sentence in paragraph 41 appears inchoate. I have reproduced it as it stands in the text.
9.	Unfortunately, these paragraphs contain contradictions. Whereas paragraph 36 accepts that Maya’s best interests “medically” and that her best interests without the addition of “medically” would be for her to remain in the United Kingdom, paragraph 41 says that “it has not been shown not to be in the children’s best interest for them to be returned to Algeria”.  Moreover, the Article 8 analysis, particularly in paragraph 41, seems to merge into considerations of greater relevance to the Article 3 analysis, particularly the reference to “established thresholds”. It is not possible to know whether these shortcomings might have been reduced by the missing words in the last sentence of paragraph 41. In my judgment, it is not possible to be confident that the approach to Article 8 was free from material legal error. What was required was a structured approach with the best interests of Maya and her siblings as a primary consideration but with careful consideration also of factors pointing the other way. Such factors include but are not limited to the overstaying of the children and their mother and the illegal entry and bogus asylum claim of the appellant father. The latter is no doubt what the UT had in mind when referring to “the need to maintain immigration control”. Moreover, I do not consider that it would be inappropriate for the future cost and duration of Maya’s treatment and care in this country to play a part in the balancing exercise as matters relating to the economic wellbeing of this country, given the strains on the public finances. It would not be appropriate for this Court to make a dispositive decision on Article 8. The outcome is not self evident. It is a matter more properly left to the expertise of the UT. Accordingly, I would allow the Article 8 appeal and remit the case to the UT for reconsideration of this issue. 
Conclusion
10.	It follows from what I have said that I would dismiss the Article 3 appeal but I would allow the Article 8 appeal to the extent of quashing the decision of the UT on Article 8 and remitting the case for reconsideration of that issue alone. 
Lady Justice Black
11.	I agree
Lord Justice Lewison
12.	I also agree.