European Court of Human Rights - case of D. v United Kingdom (1997)

EUROPEAN COURT OF HUMAN RIGHTS

In the case of D. v. the United Kingdom (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr C. Russo,

Mr A. Spielmann,

Mr J. De Meyer,

Sir John Freeland,

Mr A.B. Baka,

Mr P. Kuris,

Mr U. Lohmus,

Mr J. Casadevall,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 20 February and 21 April 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

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Notes by the Registrar

1. The case is numbered 146/1996/767/964. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission of

Human Rights ("the Commission") and by the Government of the

United Kingdom of Great Britain and Northern Ireland ("the Government")

on 28 October 1996 and 14 November 1996 respectively, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 30240/96) against the United Kingdom lodged with the Commission

under Article 25 (art. 25) by a national of St Kitts, D., on

15 February 1996. In the proceedings before the Commission the

applicant was identified only as "D.". At the wish of the applicant

this practice was maintained in the proceedings before the Court.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the United Kingdom recognised

the compulsory jurisdiction of the Court (Article 46) (art. 46); the

Government's application referred to Article 48 (art. 48). The object

of the request and of the application was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Articles 2, 3, 8 and 13 of the

Convention (art. 2, art. 3, art. 8, art. 13).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 4 (b)). On 29 October 1996, in

the presence of the Registrar, the President drew by lot the names of

the other seven members, namely Mr C. Russo, Mr A. Spielmann,

Mr J. De Meyer, Mr A.B. Baka, Mr P. Kuris, Mr U. Lohmus, and

Mr J. Casadevall (Article 43 in fine of the Convention and Rule 21

para. 5) (art. 43).

Pursuant to Rule 36 of its Rules of Procedure, the Commission had

requested the Government not to deport the applicant and the Government

provided assurances to that effect. The Government was informed by the

Registrar on 29 October 1996 that under Rule 36 of Rules of Court A the

interim measure indicated by the Commission remained recommended.

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting

through the Registrar, consulted the Agent of the Government, the

applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

applicant's and the Government's memorials on 9 January and

10 January 1997 respectively.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

20 February 1997. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr M. Eaton, Deputy Legal Adviser,

Foreign and Commonwealth Office, Agent,

Mr D. Pannick QC,

Mr N. Garnham,Counsel,

Ms S. McClelland,

Mr S. Hewett,Advisers;

(b) for the Commission

Mr J.-C. Geus,    Delegate;

(c) for the applicant

Mr N. Blake QC,

Mr L. Daniel, Counsel,

Mr A. Simmons,

Ms R. Francis,  Solicitors,

Mrs N. Mole,   Adviser.

The Court heard addresses by Mr Geus, Mr Blake and Mr Pannick and

also replies to questions put by two of its members.

AS TO THE FACTS

I. Particular circumstances of the case

A. The applicant

6. The applicant was born in St Kitts and appears to have lived

there most of his life. He is one of seven children. One sister and

one brother moved to the United States in the 1970s and the rest of the

family appears to have followed at unspecified dates. The applicant

visited the United States in 1989 to try to join his family. During

his stay there he was arrested on 5 September 1991 for possession of

cocaine and subsequently sentenced to a three-year term of

imprisonment. After one year, he was paroled for good behaviour and

deported on 8 January 1993 to St Kitts.

B. The applicant's arrival in the United Kingdom and

subsequent imprisonment

7. The applicant arrived at Gatwick Airport, London, on

21 January 1993 and sought leave to enter the United Kingdom for

two weeks as a visitor. He was found at the airport terminal to be in

possession of a substantial quantity of cocaine with a street value of

about 120,000 pounds sterling (GBP). The immigration officer refused

him leave to enter on the ground that his exclusion was conducive to

the public good and gave him notice that he would be removed to

St Kitts within a matter of days.

However, after being arrested and charged, the applicant was

remanded in custody and subsequently prosecuted for being knowingly

involved in the fraudulent evasion of the prohibition on the

importation of controlled drugs of class A. He pleaded guilty at

Croydon Crown Court on 19 April 1993 and was sentenced on

10 May 1993 to six years' imprisonment. He apparently behaved well

while in H.M. Prison Wayland and was released on licence on

24 January 1996. He was placed in immigration detention pending his

removal to St Kitts. Bail was granted by an adjudicator on

31 October 1996 after the Commission's report had been made public.

C. Diagnosis of AIDS

8. In August 1994, while serving his prison sentence, the applicant

suffered an attack of pneumocystis carinii pneumonia ("PCP") and was

diagnosed as HIV (human immunodeficiency virus)-positive and as

suffering from acquired immunodeficiency syndrome (AIDS). The

infection appears to have occurred some time before his arrival in the

United Kingdom.

9. On 3 March 1995, the applicant was granted a period of

compassionate leave to be with his mother whose air fare to the

United Kingdom to visit him had been covered by charitable donations.

10. On 20 January 1996, immediately prior to his release on licence,

the immigration authorities gave directions for the applicant's removal

to St Kitts.

D. The applicant's request to remain in the United Kingdom

11. By letter dated 23 January 1996, the applicant's solicitors

requested that the Secretary of State grant the applicant leave to

remain on compassionate grounds since his removal to St Kitts would

entail the loss of the medical treatment which he was currently

receiving, thereby shortening his life expectancy (see paragraphs 13

and 14 below). This request was refused on 25 January 1996 by the

Chief Immigration Officer. In his letter of refusal addressed to the

applicant's solicitors the Chief Immigration Officer stated:

"In reaching this decision full account was taken of paragraph 4

of the Immigration and Nationality Department B Division

Instructions regarding AIDS and HIV-positive cases. You will be

aware that paragraph 4 of this instruction which relates to

persons whose applications are for leave to enter the

United Kingdom states [see paragraph 27 of the judgment below]

... While we are saddened to learn of Mr D[...]'s medical

circumstances we do not accept, in line with Departmental Policy,

that it is right generally or in the individual circumstances of

this case, to allow an AIDS sufferer to remain here exceptionally

when, as here, treatment in this country is carried out at public

expense, under the National Health Service. Nor would it be fair

to treat AIDS sufferers any differently from others suffering

medical conditions ..."

E. Judicial review proceedings

12. On 2 February 1996, the applicant applied unsuccessfully to the

High Court for leave to apply for judicial review of the decision to

refuse him leave to enter. On 15 February 1996, the Court of Appeal

dismissed his renewed application. It found that section 3 of

the Immigration Act 1971 drew a distinction between leave to enter and

leave to remain. It held that the Chief Immigration Officer had

correctly treated Mr D.'s application as an application for leave to

enter and was not required to take into account paragraph 5 of the

Home Office guidelines which applied to applications for leave to

remain (see paragraphs 27 and 28 below). As to the applicant's

argument that the Home Office acted unreasonably or irrationally in not

acceding to the compassionate circumstances of his plea,

Sir Iain Glidewell stated in his judgment:

"Nobody can but have great sympathy for this applicant in the

plight in which he finds himself. If he is to return to St Kitts

it seems that he will be unable to work because of his illness.

His expectation of life, if the medical evidence is correct, may

well be shorter than it would be if he remained under the

treatment that he is receiving in the United Kingdom, and in many

ways his plight will be great. On the other hand he would not

be here if he had not come on a cocaine smuggling expedition in

1993; and if he had not been imprisoned he would have gone back

to St Kitts, if he had ever come here at all, long before his

AIDS was diagnosed. Taking account of the fact that the Court

must give most anxious scrutiny to a decision which involves

questions particularly of life expectancy, as this one apparently

does, nevertheless I cannot find that an argument in this case

that the decision of the Chief Immigration Officer was irrational

is one that has any hope of success at all. Putting it the

opposite way, it seems to me to be one which was well within the

bounds of his discretion, and thus is not one with which the

Court can properly interfere."

F. Reports on the applicant's medical condition, treatment and

prognosis

13. Since August 1995, the applicant's "CD4" cell count has been

below 10. He has been in the advanced stages of the illness, suffering

from recurrent anaemia, bacterial chest infections, malaise,

skin rashes, weight loss and periods of extreme fatigue.

14. By letter dated 15 January 1996, Dr Evans, a consultant doctor,

stated:

"His current treatment is AZT 250 mgs. b.d. and monthly nebulised

pentamidine, he occasionally takes mystatin pastilles and

skin emollients.

In view of the fact that [the applicant] has now had AIDS for

over 18 months and because this is a relentlessly progressive

disease his prognosis is extremely poor.

In my professional opinion [the applicant's] life expectancy

would be substantially shortened if he were to return to St Kitts

where there is no medication; it is important that he receives

pentamidine treatment against PCP and that he receives prompt

anti-microbial therapy for any further infections which he is

likely to develop ..."

15. In a medical report provided on 13 June 1996, Professor Pinching,

a professor of immunology at a London hospital, stated that the

applicant had suffered severe and irreparable damage to his

immune system and was extremely vulnerable to a wide range of specific

infections and to the development of tumours. The applicant was

reaching the end of the average durability of effectiveness of the

drug therapy which he was receiving. It was stated that the

applicant's prognosis was very poor and limited to eight to

twelve months on present therapy. It was estimated that withdrawal of

the proven effective therapies and of proper medical care would reduce

that prognosis to less than half of what would be otherwise expected.

G. Medical facilities in St Kitts

16. By letter dated 20 April 1995, the High Commission for the

Eastern Caribbean States informed the doctor treating the applicant in

prison that the medical facilities in St Kitts did not have the

capacity to provide the medical treatment that he would require. This

was in response to a faxed enquiry of the same date by Dr Hewitt, the

managing medical officer at H.M. Prison Wayland. By letter of

24 October 1995, Dr Hewitt informed the Home Office of the contents of

the letter from the High Commission, which had also been sent to the

Parole Unit on 1 May 1995. He stated that the necessary treatment was

not available in St Kitts but was widely and freely available in the

United Kingdom and requested that due consideration be given to lifting

the deportation order in respect of the applicant. By letter dated

1 August 1996, the High Commission for the Eastern Caribbean States

confirmed that the position in St Kitts had not changed.

17. By letter dated 5 February 1996, the Antigua and Barbuda

Red Cross informed the applicant's representatives that they had

consulted their officer on St Kitts who stated that there was no

health care providing for drugs treatment of AIDS.

Results of enquiries made by the Government of the authorities

in St Kitts suggest that there are two hospitals in St Kitts which care

for AIDS patients by treating them for opportunistic infections until

they are well enough to be discharged, and that an increasing number

of AIDS sufferers there live with relatives.

H. The applicant's family situation in St Kitts

18. The applicant has no family home or close family in St Kitts

other than, according to information provided by the Government, a

cousin. His mother, who currently lives in the United States, has

declared that her age, bad health and lack of resources prevent her

from returning to St Kitts to look after her son if he were to be

returned there. She has also stated that she knew of no relatives who

would be able to care for him in St Kitts.

I. The applicant's situation since the adoption of the

Commission's report

19. When granted bail on 31 October 1996 (see paragraph 7 above) the

applicant was released to reside in special sheltered accommodation for

AIDS patients provided by a charitable organisation working with

homeless persons. Accommodation, food and services are provided free

of charge to the applicant. He also has the emotional support and

assistance of a trained volunteer provided by the

Terrence Higgins Trust, the leading charity in the United Kingdom

providing practical support, help, counselling and legal and other

advice for persons concerned about or having AIDS or HIV infection.

20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a

consultant in clinical immunology treating the applicant at a

London hospital, noted that he was at an advanced stage of

HIV infection and was severely immunosuppressed. His prognosis was

poor. The applicant was being given antiretroviral therapy with "D4T"

and "3TC" to reduce the risk of opportunistic infection and was

continuing to be prescribed pentamidine nebulisers to prevent a

recurrence of PCP. Preventative treatment for other opportunistic

infections was also foreseen. Dr Parkin noted that the lack of

treatment with anti-HIV therapy and preventative measures for

opportunistic disease would hasten his death if he were to be returned

to St Kitts.

21. The applicant was transferred to an AIDS hospice around the

middle of January 1997 for a period of respite care. At the beginning

of February there was a sudden deterioration in his condition and he

had to be admitted to a hospital on 7 February for examination. At the

hearing before the Court on 20 February 1997, it was stated that the

applicant's condition was causing concern and that the prognosis was

uncertain. According to his counsel, it would appear that the

applicant's life was drawing to a close much as the experts had

predicted (see paragraph 15 above).

II. Relevant domestic law and practice

22. The regulation of entry into and stay in the United Kingdom is

governed by Part 1 of the Immigration Act 1971. The practice to be

followed in the administration of the Act for regulating entry and stay

is contained in statements of the rules laid by the Secretary of State

before Parliament ("the Immigration Rules").

23. Section 3 (1) provides that a person who is not a British citizen

shall not enter the United Kingdom unless given leave to do so in

accordance with the provisions of the Act. Leave to enter may be

granted for a limited or for an indefinite period.

24. Under section 4 (1) of the Act the power to grant or refuse leave

to enter is exercised by immigration officers whereas the power to

grant leave to remain in the United Kingdom is exercised by the

Secretary of State. These powers are exercisable by notice in writing

given to the person affected.

25. A person, such as the applicant, who has been refused leave to

enter but is physically in the United Kingdom pending his removal and

seeks to be allowed to stay there does not fall to be treated as

applying for leave to remain. Since no leave to enter had been granted

to the applicant, it was right according to the judgment of

Sir Iain Glidewell in R. v. Secretary of State for the Home Department,

ex parte D. (Court of Appeal, 15 February 1996) for the

immigration officer to treat his application as an application for

leave to enter rather than for leave to remain.

A. Policy guidelines on how to proceed in cases in which

persons seeking to enter or remain in the United Kingdom

are suffering from AIDS or are HIV-positive

26. The Immigration and Nationality Department of the Home Office

issued a policy document (BDI 3/95) on this subject in August 1995.

Paragraph 2 of the guidelines specifies that the fact that a person is

suffering from AIDS or is HIV-positive is not a ground for refusing

leave to enter or leave to remain if the person concerned otherwise

qualifies under the Immigration Rules. Equally, this fact is not in

itself a sufficient ground to justify the exercise of discretion where

the person concerned has not met the requirements of the Rules.

The policy guidelines distinguish between applications for leave

to enter and applications for leave to remain.

27. On applications for leave to enter (paragraph 4 of the

guidelines), where the person is suffering from AIDS, the policy and

practice is to adhere to the provisions of the Immigration Rules in the

normal way. Where such a person does not qualify under the Rules,

entry is refused.

28. On applications for leave to remain (paragraph 5 of the

guidelines), the application should be dealt with normally on its

merits under the applicable Rules. However, there is a discretion

outside the Rules which can be exercised in strong compassionate

circumstances. Paragraph 5.4 states that: "... there may be cases

where it is apparent that there are no facilities for treatment

available in the applicant's own country. Where evidence suggests that

this absence of treatment significantly shortens the life expectancy

of the applicant it will normally be appropriate to grant leave to

remain."

B. Other relevant materials

29. Among the documentary materials submitted by the applicant, are

the following.

1. International policy statements on human rights and AIDS

30. International concern about AIDS has resulted in the adoption of

several international texts which have addressed, inter alia, the

protection of the human rights of the victims of the disease. Thus,

the United Nations Commission on Human Rights adopted a resolution on

9 March 1993 on the protection of human rights in the context of

human immunodeficiency virus or acquired immunodeficiency syndrome in

which it called upon

"all States to ensure that their laws, policies and practices

introduced in the context of AIDS respect

human rights standards".

31. At a Summit of Heads of Government or Representatives of

forty-two States meeting in Paris on 1 December 1994, a declaration was

adopted in which the participating States solemnly declared their

obligation

"to act with compassion for and in solidarity with those with HIV

or at risk of becoming infected, both within [their] societies

and internationally".

2.Extract of the WHO report on "Health conditions in the

Americas", 1994, Volume II, concerning St Kitts and Nevis

32. "Health and living conditions

... there are a number of serious environmental problems, such

as inadequate disposal of solid and liquid waste - especially

untreated sewage - into coastal lands and waters, resulting in

coastal zone degradation, fish depletion and health problems

(gastro-enteritis) ..."

33. According to this publication, there are two general hospitals

in St Kitts, one with 174 beds and the other with 38. There is also

a "cottage" hospital with 10 beds. There are two homes providing

geriatric care.

3."Treatment issues - a basic guide to medical treatment

options for people with HIV and AIDS" produced in

April 1996 by the Terrence Higgins Trust

34. This guide describes the three medical strategies available for

treating HIV infection and AIDS: using anti-HIV drugs which attack HIV

itself to delay or prevent damage to the immune system, treating or

preventing opportunistic infections which take advantage of damage to

the immune system and strengthening and restoring the immune system.

Amongst the first category, several drugs can be used, including AZT

(also known as Zidovudine or its tradename Retrovir). This belongs to

a family of drugs called nucleoside analogues which inhibit an enzyme

produced by HIV called reverse transcriptase (RT). If RT is inhibited,

HIV cannot infect new cells and the build-up of virus in the body is

slowed down. However, the existing drugs are only partially effective

and at best can only delay the worsening of HIV-related disease rather

than prevent it.

35. As regards the second category, persons whose immune systems have

been significantly damaged are vulnerable to a range of infections and

tumours known as opportunistic infections. These commonly include

cytomegalovirus (herpes virus), Kaposi's sarcoma, anaemia,

tuberculosis, toxoplasmosis and PCP. PCP is a form of pneumonia which

in people infected with HIV may affect the lymph nodes, bone marrow,

spleen and liver as well as the lungs. Steps to avoid such infections

include taking care with food and drink and prophylactic treatment by

drugs. In the case of PCP, which was a common cause of death during

the first years of the epidemic and is still one of the commonest

AIDS illnesses, options include the long-term taking of antibiotics

such as cotrimoxazole and the use of nebulised pentamidine which is

intended to protect the lungs.

36. In relation to the third category, treatment which strengthens

or restores the immune system, research has yet to produce any clear

results.

PROCEEDINGS BEFORE THE COMMISSION

37. The applicant lodged his application (no. 30240/96) with the

Commission on 15 February 1996. He alleged that his proposed removal

to St Kitts would be in violation of Articles 2, 3 and 8 of the

Convention (art. 2, art. 3, art. 8) and that he had been denied an

effective remedy to challenge the removal order in breach of

Article 13 (art. 13).

The Commission declared the application admissible on

26 June 1996. In its report of 15 October 1996 (Article 31) (art. 31),

it expressed the opinion that Article 3 (art. 3) would be violated if

the applicant were to be removed to St Kitts (eleven votes to seven);

that it was unnecessary to examine the complaint under Article 2

(art. 2) (unanimously); that no separate issue arose under Article 8

(art. 8) (unanimously); and that there had been no violation of

Article 13 (art. 13) (thirteen votes to five). The full text of the

Commission's opinion and of the two separate opinions contained in the

report is reproduced as an annex to this judgment (1).

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Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-III), but a copy of the Commission's report is

obtainable from the registry.

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FINAL SUBMISSIONS TO THE COURT

38. In their memorial and at the oral hearing the Government

requested the Court to decide and declare that the facts disclose no

breach of the applicant's rights under Articles 2, 3, 8 or 13 of the

Convention (art. 2, art. 3, art. 8, art. 13).

The applicant requested the Court in his memorial and at the oral

hearing to find that his proposed removal from the United Kingdom

would, if implemented, constitute a breach of Articles 2, 3 and 8 of

the Convention (art. 2, art. 3, art. 8) and that he had no effective

remedy in respect of those complaints in breach of Article 13

(art. 13).

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (art. 3)

39. The applicant maintained that his removal to St Kitts would

expose him to inhuman and degrading treatment in breach of Article 3

of the Convention (art. 3), which provides:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

A. Arguments of those appearing before the Court

1.The applicant

40. The applicant maintained that his removal to St Kitts would

condemn him to spend his remaining days in pain and suffering in

conditions of isolation, squalor and destitution. He had no close

relatives or friends in St Kitts to attend to him as he approached

death. He had no accommodation, no financial resources and no access

to any means of social support. It was an established fact that the

withdrawal of his current medical treatment would hasten his death on

account of the unavailability of similar treatment in St Kitts. His

already weakened immune system would not be able to resist the many

opportunistic infections to which he would be exposed on account of his

homelessness, lack of proper diet and the poor sanitation on the

island. The hospital facilities were extremely limited and certainly

not capable of arresting the development of infections provoked by the

harsh physical environment in which he would be obliged to fend for

himself. His death would thus not only be further accelerated, it

would also come about in conditions which would be inhuman and

degrading.

41. In June 1996, his life expectancy was stated to be in the region

of eight to twelve months even if he continued to receive treatment in

the United Kingdom. His health had declined since then. As he was now

clearly weak and close to death, his removal by the respondent State

at this late stage would certainly exacerbate his fate.

2. The Government

42. The Government requested the Court to find that the applicant had

no valid claim under Article 3 (art. 3) in the circumstances of the

case since he would not be exposed in the receiving country to any form

of treatment which breached the standards of Article 3 (art. 3). His

hardship and reduced life expectancy would stem from his terminal and

incurable illness coupled with the deficiencies in the health and

social-welfare system of a poor, developing country. He would find

himself in the same situation as other AIDS victims in St Kitts. In

fact he would have been returned in January 1993 to St Kitts, where he

had spent most of his life, had it not been for his prosecution and

conviction.

43. The Government also disputed the applicant's claim that he would

be left alone and without access to treatment for his condition. They

maintained that he had at least one cousin living in St Kitts and that

there were hospitals caring for AIDS patients, including those

suffering from opportunistic infections (see paragraph 17 above). Even

if the treatment and medication fell short of that currently

administered to the applicant in the United Kingdom, this in itself did

not amount to a breach of Article 3 standards (art. 3).

44. Before the Court the Government observed that it was their policy

not to remove a person who was unfit to travel. They gave an

undertaking to the Court not to remove the applicant unless, in the

light of an assessment of his medical condition after the Court gives

judgment, he is fit to travel.

3. The Commission

45. The Commission concluded that the removal of the applicant to

St Kitts would engage the responsibility of the respondent State under

Article 3 (art. 3) even though the risk of being subjected to inhuman

and degrading treatment stemmed from factors for which the authorities

in that country could not be held responsible. The risk was

substantiated and real. If returned, he would be deprived of his

current medical treatment and his already weakened immune system would

be exposed to untreatable opportunistic infections which would reduce

further his limited life expectancy and cause him severe pain and

mental suffering. He would be homeless and without any form of moral,

social or family support in the final stages of his deadly illness.

B. The Court's assessment

46. The Court recalls at the outset that Contracting States have the

right, as a matter of well-established international law and subject

to their treaty obligations including the Convention, to control the

entry, residence and expulsion of aliens. It also notes the gravity

of the offence which was committed by the applicant and is acutely

aware of the problems confronting Contracting States in their efforts

to combat the harm caused to their societies through the supply of

drugs from abroad. The administration of severe sanctions to persons

involved in drug trafficking, including expulsion of alien drug

couriers like the applicant, is a justified response to this scourge.

47. However, in exercising their right to expel such aliens

Contracting States must have regard to Article 3 of the Convention

(art. 3), which enshrines one of the fundamental values of democratic

societies. It is precisely for this reason that the Court has

repeatedly stressed in its line of authorities involving extradition,

expulsion or deportation of individuals to third countries that

Article 3 (art. 3) prohibits in absolute terms torture or inhuman or

degrading treatment or punishment and that its guarantees apply

irrespective of the reprehensible nature of the conduct of the person

in question (see, most recently, the Ahmed v. Austria judgment of

17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206,

para. 38; and the Chahal v. the United Kingdom judgment of

15 November 1996, Reports 1996-V, p. 1853, paras. 73-74).

48. The Court observes that the above principle is applicable to the

applicant's removal under the Immigration Act 1971. Regardless of

whether or not he ever entered the United Kingdom in the technical

sense (see paragraph 25 above) it is to be noted that he has been

physically present there and thus within the jurisdiction of the

respondent State within the meaning of Article 1 of the Convention

(art. 1) since 21 January 1993. It is for the respondent State

therefore to secure to the applicant the rights guaranteed under

Article 3 (art. 3) irrespective of the gravity of the offence which he

committed.

49. It is true that this principle has so far been applied by the

Court in contexts in which the risk to the individual of being

subjected to any of the proscribed forms of treatment emanates from

intentionally inflicted acts of the public authorities in the receiving

country or from those of non-State bodies in that country when the

authorities there are unable to afford him appropriate protection

(see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44).

Aside from these situations and given the fundamental importance

of Article 3 (art. 3) in the Convention system, the Court must reserve

to itself sufficient flexibility to address the application of that

Article (art. 3) in other contexts which might arise. It is not

therefore prevented from scrutinising an applicant's claim under

Article 3 (art. 3) where the source of the risk of proscribed treatment

in the receiving country stems from factors which cannot engage either

directly or indirectly the responsibility of the public authorities of

that country, or which, taken alone, do not in themselves infringe the

standards of that Article (art. 3). To limit the application of

Article 3 (art. 3) in this manner would be to undermine the absolute

character of its protection. In any such contexts, however, the Court

must subject all the circumstances surrounding the case to a rigorous

scrutiny, especially the applicant's personal situation in the

expelling State.

50. Against this background the Court will determine whether there

is a real risk that the applicant's removal would be contrary to the

standards of Article 3 (art. 3) in view of his present medical

condition. In so doing the Court will assess the risk in the light of

the material before it at the time of its consideration of the case,

including the most recent information on his state of health (see the

Ahmed judgment, loc. cit., p. 2207, para. 43).

51. The Court notes that the applicant is in the advanced stages of

a terminal and incurable illness. At the date of the hearing, it was

observed that there had been a marked decline in his condition and he

had to be transferred to a hospital. His condition was giving rise to

concern (see paragraph 21 above). The limited quality of life he now

enjoys results from the availability of sophisticated treatment and

medication in the United Kingdom and the care and kindness administered

by a charitable organisation. He has been counselled on how to

approach death and has formed bonds with his carers (see paragraph 19

above).

52. The abrupt withdrawal of these facilities will entail the most

dramatic consequences for him. It is not disputed that his removal

will hasten his death. There is a serious danger that the conditions

of adversity which await him in St Kitts will further reduce his

already limited life expectancy and subject him to acute mental and

physical suffering. Any medical treatment which he might hope to

receive there could not contend with the infections which he may

possibly contract on account of his lack of shelter and of a proper

diet as well as exposure to the health and sanitation problems which

beset the population of St Kitts (see paragraph 32 above). While he

may have a cousin in St Kitts (see paragraph 18 above), no evidence has

been adduced to show whether this person would be willing or in a

position to attend to the needs of a terminally ill man. There is no

evidence of any other form of moral or social support. Nor has it been

shown whether the applicant would be guaranteed a bed in either of the

hospitals on the island which, according to the Government, care for

AIDS patients (see paragraph 17 above).

53. In view of these exceptional circumstances and bearing in mind

the critical stage now reached in the applicant's fatal illness, the

implementation of the decision to remove him to St Kitts would amount

to inhuman treatment by the respondent State in violation of Article 3

(art. 3).

The Court also notes in this respect that the respondent State

has assumed responsibility for treating the applicant's condition since

August 1994. He has become reliant on the medical and palliative care

which he is at present receiving and is no doubt psychologically

prepared for death in an environment which is both familiar and

compassionate. Although it cannot be said that the conditions which

would confront him in the receiving country are themselves a breach of

the standards of Article 3 (art. 3), his removal would expose him to

a real risk of dying under most distressing circumstances and would

thus amount to inhuman treatment.

Without calling into question the good faith of the undertaking

given to the Court by the Government (see paragraph 44 above), it is

to be noted that the above considerations must be seen as wider in

scope than the question whether or not the applicant is fit to travel

back to St Kitts.

54. Against this background the Court emphasises that aliens who have

served their prison sentences and are subject to expulsion cannot in

principle claim any entitlement to remain in the territory of a

Contracting State in order to continue to benefit from medical, social

or other forms of assistance provided by the expelling State during

their stay in prison.

However, in the very exceptional circumstances of this case and

given the compelling humanitarian considerations at stake, it must be

concluded that the implementation of the decision to remove the

applicant would be a violation of Article 3 (art. 3).

II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION (art. 2)

55. The applicant further maintained that the implementation by the

United Kingdom authorities of the decision to remove him to St Kitts

would be in breach of Article 2 of the Convention (art. 2), which

provides:

"1. Everyone's right to life shall be protected by law. No one

shall be deprived of his life intentionally save in the execution

of a sentence of a court following his conviction of a crime for

which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in

contravention of this Article (art. 2) when it results from the

use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape

of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot

or insurrection."

56. The applicant contended that his removal to St Kitts would engage

the responsibility of the respondent State under Article 2 (art. 2).

He is terminally ill, and the medical evidence submitted to the Court

(see paragraphs 14-15 and 20-21 above) confirmed that his already

reduced life expectancy would be further shortened if he were to be

suddenly deprived of his current medical treatment and sent back to

St Kitts. There would, he argued, be a direct causal link between his

expulsion and his accelerated death such as to give rise to a violation

of the right to life. He submitted that Article 2 (art. 2) denoted a

positive obligation to safeguard life which in the circumstances in

issue required the Government not to take a measure which would further

reduce his limited life expectancy.

57. The Government did not dispute the fact that the removal of the

applicant to St Kitts and the consequential loss of the current medical

treatment would hasten his death. However, the threat to his life

expectancy stemmed not from factors for which the Government could be

held responsible but from his own fatal illness in conjunction with the

lack of adequate medical treatment in the receiving country.

Article 2 (art. 2) was therefore not applicable to the circumstances

in issue. In any event the substance of the applicant's complaints

could not be separated from the arguments he advanced in furtherance

of his allegation under Article 3 (art. 3) and for that reason were

best dealt with under the latter provision (art. 3).

58. The Commission did not find it necessary to decide whether the

risk to the applicant's life expectancy created by his removal

disclosed a breach of Article 2 (art. 2). It considered that it would

be more appropriate to deal globally with this allegation when

examining his related complaints under Article 3 (art. 3).

59. The Court for its part shares the views of the Government and the

Commission that the complaints raised by the applicant under

Article 2 (art. 2) are indissociable from the substance of his

complaint under Article 3 (art. 3) in respect of the consequences of

the impugned decision for his life, health and welfare. It notes in

this respect that the applicant stated before the Court that he was

content to base his case under Article 3 (art. 3).

Having regard to its finding that the removal of the applicant

to St Kitts would give rise to a violation of Article 3 (art. 3)

(see paragraph 54 above), the Court considers that it is not necessary

to examine his complaint under Article 2 (art. 2).

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)

60. The applicant also alleged that his proposed removal to St Kitts

would violate his right to respect for his private life, as guaranteed

by Article 8 of the Convention (art. 8). Article 8 (art. 8) provides:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

61. In support of this argument the applicant maintained that his

removal would amount to a disproportionate interference with his right

to respect for his private life, and in particular his right to respect

for his physical integrity. While readily accepting that the offence

he had committed was a very serious one, he requested the Court to

consider the impact which his removal to St Kitts would entail for him,

a terminally ill person with no family or close relatives in the

receiving country, no moral or social support and no adequate medical

treatment to stave off infection to his already weakened immune system.

His continued presence in the United Kingdom could not be considered

a burden on the domestic health resources and, furthermore, there were

no indications that he would reoffend.

62. The Government maintained that the applicant could not rely on

Article 8 (art. 8) to challenge the impact of the impugned decision on

his right to private life since his private life was constituted in the

receiving country where he had lived most of his life. Any links which

the applicant had with the United Kingdom were the direct result of the

offence for which he had been sentenced. Even if Article 8 (art. 8)

were to be regarded as applicable, the interference with his medical

interests by removing him to St Kitts was justified, given the

seriousness of the offence he had committed, for reasons of the

prevention of crime and in the interests of the economic well-being of

the United Kingdom.

63. Although the Commission found that no separate issue arose under

Article 8 (art. 8) in view of its findings under Article 3 (art. 3),

the Delegate invited the Court to find a violation of Article 8

(art. 8) in the event of a conclusion that the applicant's removal to

St Kitts would not violate Article 3 (art. 3).

64. Having regard to its finding under Article 3 (art. 3)

(see paragraph 54 above), the Court concludes that the applicant's

complaints under Article 8 (art. 8) raise no separate issue.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)

65. The applicant complained that he had no effective remedy in

English law in respect of his complaints under Articles 2, 3 and 8 of

the Convention (art. 2, art. 3, art. 8). He contended that this gave

rise to a breach of Article 13 of the Convention (art. 13), which

provides:

"Everyone whose rights and freedoms as set forth in [the]

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

66. The applicant pointed to the limitations which circumscribed an

effective review by courts in the United Kingdom of the decisions

reached by the authorities in expulsion cases. When reviewing the

legality of administrative decisions the courts did not treat the

Convention and the principles developed by the Court as a relevant

consideration; nor was the decision-maker obliged to take account of

the Convention and the case-law of the Convention institutions when

exercising the powers conferred by legislation such as the

Immigration Act 1971. Admittedly, the domestic courts will review

decisions with a greater rigour when they have an impact on

human rights, but even in such cases they do not take a

Convention-based approach. Thus, in the case in issue, the

Court of Appeal did not seek to satisfy itself whether the removal of

the applicant would expose him to inhuman and degrading treatment but

merely examined whether the decision-maker had taken this factor into

account. This, he maintained, fell short of the test of "independent

scrutiny" of a claim that there exist substantial grounds for fearing

a real risk of treatment proscribed by Article 3 (art. 3) which the

Court in its Chahal judgment (loc. cit., p. 1871, para. 151) had

considered to be a crucial aspect of an effective remedy. Furthermore,

the Court of Appeal had regarded the seriousness of the applicant's

offence as a paramount consideration in deciding that the impugned

decision was not an irrational one and had failed also to take adequate

account of the Convention's requirements when dealing with his

complaints under Articles 2 and 8 (art. 2, art. 8). For these reasons

it could not be said that the judicial review proceedings afforded him

an effective remedy within the meaning of Article 13 (art. 13).

67. The Government disputed this argument and invited the Court to

confirm the conclusion which it had reached in certain earlier

judgments that judicial review proceedings afforded an effective remedy

to challenge the legality of a decision to expel or deport an

individual. The courts in the United Kingdom applied a "most anxious

scrutiny" test when reviewing administrative decisions which affect the

fundamental rights of individuals. The Court of Appeal applied such

a test in this case when assessing the merits of the decision to remove

the applicant and took due account of the hardship which the

implementation of the decision would cause the applicant. The

applicant cannot therefore argue that he was denied an effective

remedy.

68. The Commission agreed with the Government. The Court of Appeal

examined the substance of the applicant's complaint, including the

hardship which would result from his removal. Although the

Court of Appeal did not quash the decision to remove him, it had the

power to do so. The remedy afforded by judicial review was therefore

an effective one.

69. The Court observes that Article 13 of the Convention (art. 13)

guarantees the availability at national level of a remedy to enforce

the substance of the Convention rights and freedoms in whatever form

they might happen to be secured in the domestic legal order. The

effect of this Article (art. 13) is thus to require the provision of

a domestic remedy allowing the competent national authority both to

deal with the substance of the relevant Convention complaint and to

grant appropriate relief, although Contracting States are afforded some

discretion as to the manner in which they conform to their obligations

under this provision (art. 13) (see, among other authorities, the

Soering v. the United Kingdom judgment of 7 July 1989, Series A

no. 161, p. 47, para. 120; and the Vilvarajah and Others

v. the United Kingdom judgment of 30 October 1991, Series A no. 215,

p. 39, para. 122).

70. In its Vilvarajah and Others judgment (loc. cit., p. 39,

para. 123) and its Soering judgment (loc. cit., pp. 47-48,

paras. 121-24) the Court considered judicial review proceedings to be

an effective remedy in relation to the complaints raised under

Article 3 (art. 3) in the contexts of deportation and extradition. It

was satisfied that English courts could effectively control the

legality of executive discretion on substantive and procedural grounds

and quash decisions as appropriate. It was also accepted that a court

in the exercise of its powers of judicial review would have power to

quash a decision to expel or deport an individual to a country where

it was established that there was a serious risk of inhuman or

degrading treatment, on the ground that in all the circumstances of the

case the decision was one that no reasonable Secretary of State could

take.

71. While it is true that the source of the risk of the prohibited

treatment to which the applicant will be exposed and the impugned

measure are different from those in the above cases there is no reason

to depart from the conclusion reached in those cases in respect of the

effectiveness of judicial review proceedings for the purposes of

Article 13 (art. 13). Indeed the Court of Appeal had regard to

domestic case-law which required it to submit the applicant's plight

to the most anxious scrutiny on account of the established risk to his

life expectancy. It did so against the background of the criteria

which need to be satisfied before an administrative decision can be

challenged on the grounds of its irrationality. The substance of the

applicant's complaint was therefore examined by the Court of Appeal.

That court had the power to afford him the relief he sought. The fact

that it did not do so is not a material consideration since the

effectiveness of a remedy for the purposes of Article 13 (art. 13) does

not depend on the certainty of a favourable outcome for an applicant

(see the Vilvarajah and Others judgment, loc. cit., p. 39, para. 122).

72. The applicant maintained that the effectiveness of the remedy

invoked first before the High Court and subsequently before the

Court of Appeal was undermined on account of their failure to conduct

an independent scrutiny of the facts in order to determine whether they

disclosed a real risk that he would be exposed to inhuman and degrading

treatment. He relied on the reasoning in the Chahal judgment

(loc. cit., p. 1871, para. 151). However the Court notes that in that

case the domestic courts were precluded from reviewing the factual

basis underlying the national-security considerations invoked by the

Home Secretary to justify the expulsion of Mr Chahal. No such

considerations arise in the case in issue.

73. The applicant thus had available to him an effective remedy in

relation to his complaints under Articles 2, 3 and 8 of the Convention

(art. 2, art. 3, art. 8). Accordingly there has been no breach of

Article 13 (art. 13).

V. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

74. Article 50 of the Convention (art. 50) provides:

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

A. Costs and expenses

75. The applicant did not seek damages. He claimed reimbursement of

GBP 49,443 and 13,811 French francs (FRF) incurred by way of costs and

expenses in respect of the proceedings brought before the Convention

institutions.

76. The Government requested the Court to reduce the amount, mainly

because the time billed in respect of the preparation of certain parts

of the case was excessive and the number of lawyers engaged to work on

the case unreasonable. They proposed the sum of GBP 29,313.16 and

FRF 9,194.

77. The applicant defended the amount claimed on account of,

inter alia, the complexity of the issues involved and the speed with

which the case had been treated by both the Commission and the Court.

78. Making an assessment on an equitable basis, the Court awards the

applicant GBP 35,000 plus any value-added tax that may be chargeable

under this head, less the FRF 33,216 already paid in legal aid by the

Council of Europe.

B. Default interest

79. According to the information available to the Court, the

statutory rate of interest applicable in the United Kingdom at the date

of adoption of the present judgment is 8% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the implementation of the decision to remove the

applicant to St Kitts would violate Article 3 of the Convention

(art. 3);

2. Holds that having regard to its conclusion under Article 3

(art. 3) it is not necessary to examine the applicant's complaint

under Article 2 of the Convention (art. 2);

3. Holds that the applicant's complaint under Article 8 of the

Convention (art. 8) gives rise to no separate issue;

4. Holds that there has been no violation of Article 13 of the

Convention (art. 13);

5. Holds

(a) that the respondent State is to pay the applicant, within

three months, 35,000 (thirty-five thousand) pounds sterling in

respect of costs and expenses less 33,216 (thirty-three thousand

two hundred and sixteen) French francs to be converted into

pounds sterling at the rate applicable at the date of delivery

of the present judgment;

(b) that simple interest at an annual rate of 8% shall be payable

from the expiry of the above-mentioned three months until

settlement.

Done in English and in French, and delivered at a public hearing

in the Human Rights Building, Strasbourg, on 2 May 1997.

For the President

Signed: Jan De Meyer

Judge

For the Registrar

Signed: Michael O'Boyle

Head of Division

in the registry of the Court