Date of judgement: 27 May 2008
Court: European Court of Human Rights
Citation(s): N v. The United Kingdom, Appl. No. 26565/05, Council of Europe: European Court of Human Rights, 27 May 2008
Short summary
The European Court of Human Rights (ECtHR) formerly established a very high threshold for the protection of asylum seekers with severe health conditions under Art. 3 of the European Convention on Human RIghts in the case of an Ugandan woman suffering from HIV.
Summary by: Claudia Broadhead
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Weight of decision
The decision handed down by the ECtHR bears significant weight upon the interpretation of Art. 3 right to prevent of inhumane or degrading treatment or punishment under the European Convention on Human Rights (ECHR). See the Paposhvili decision for further elaboration upon this notion.
Key facts
The applicant was an Ugandan woman who entered the UK in 1998 under a false identity. Within days, she applied for asylum, claiming that she had been raped by the National Resistance Movement in Uganda because she was associated with the Lord’s Resistance Army. She was diagnosed as being HIV positive and developed Kaposi’s sarcoma, an AIDS defining illness. Medication was only available in Uganda at considerable expense and not easily accessible from her hometown. The applicant claimed that her removal to Uganda would violate her Art. 3 ECHR right (prohibition of torture or inhuman or degrading treatment or punishment).
The Secretary of State refused the asylum claim on 28 March 2001 on grounds of credibility, and also because it was not accepted that the Ugandan authorities were interested in the applicant. The applicant’s Art. 3 claim was also rejected, with the Secretary of State noting that treatment of AIDS in Uganda was comparable to any other African country, and all the major anti-viral drugs were available in Uganda at highly subsidized prices.
Summary of holding
The ECtHR first stated that AIDS drugs available under the National Health Service (NHS) in the U.K. could also be obtained locally in Uganda, and most were also available at a reduced price through UN-funded projects. The applicant’s return would not, therefore, be to a complete absence of medical treatment, and so would not subject her to acute physical and mental suffering.
The ECtHR found that the decision to remove someone who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the contracting state may raise an issue under Art. 3, but only in a very exceptional case where the humanitarian grounds against the removal are compelling (para. 42).
In particular, the court found that for ill-treatment to fall within the scope of Art. 3, it must attain a minimum level of severity that is relative and dependent on all the circumstances of the case, including the duration of treatment, its physical and mental effects and, in some cases, the sex, age, and state of health of the victim.
Further, the ECtHR stated that although advances in medical science – together with social and economic differences between countries – entail that the level of treatment available in the contracting state and the country of origin may vary considerably, Art. 3 does not place an obligation upon the contracting state to alleviate such disparities through the provision of free and unlimited health care to all people without a right to stay within its jurisdiction.
If humanitarian conditions are solely or predominantly attributable to poverty or to the state’s lack of resources to deal with a naturally occurring phenomenon (in this case HIV illness), the higher threshold of exceptional circumstances is applied and therefore deportation is more likely.
Potential takeaways for future climate migration litigation
- Thresholds. In the absence of cases specifically related to climate migration, non-refoulement cases with a medical basis for argument are generally a realistic indicator of thresholds, the interpretation of the articles, and requirements under which protection can be expected from courts.
- This case set an absurdly high threshold, and thus should be seen as an unfavourable case for climate migration. For further development (and reduction) of the principles in the case, see the case of Paposhvili v. Belgium.