Brighton Mutebuka

Brighton Mutebuka is the principal lawyer at Mutebuka & Co Immigration Lawyers based in Leeds. When he is not in the courtroom, he enjoys nothing more than watching his beloved Arsenal and playing pool

UK asylum blow for HIV+ Zimbabweans

ON OCTOBER 14, 2010, the Upper Tribunal passed a very important Country Guidance case on Zimbabwe dealing with HIV cases in RS and Others (Zimbabwe – AIDS) Zimbabwe CG [2010] UKUT 00363.

The decision in question is meant to mainly provide guidance in Zimbabwean HIV related cases.

The appellants are all Zimbabwean nationals whose initials are RS, EC and BR. They have been involved in lengthy and complex litigation, which I will try to summarise for the benefit of readers.

At some point after their arrival in the UK, they were diagnosed HIV positive and started ARV treatment. They had initially sought exceptional leave to remain in the UK on the basis of their illness and the subsequent treatment they had started receiving.

The Home Office refused their applications on the basis that “there were no provisions under the Immigration Rules to enable an applicant to remain to receive free medical treatment”, and the Secretary of State considered that National Health Service resources were limited.

At some stage after the refusal, all of the appellants raised asylum grounds, in some cases several years after the initial application to remain on health grounds. The Home Office rejected the asylum applications on the basis of adverse credibility findings. They all appealed.

In the ensuing litigation, all three appeals eventually came back to be heard before the Upper Tribunal. The asylum aspect of the appeal for all three appellants was quickly dispensed with, as the Tribunal concluded that they were clearly not credible witnesses.

In relation to the health aspect of the case, the court established the following conclusions, which in my view have got far reaching and dire consequences to those affected:

(1) A significant number of people are receiving treatment for HIV/AIDS in Zimbabwe, and hence a Zimbabwean returnee will not succeed in a claim for international protection on the basis of a diagnosis of HIV/AIDS unless their case crosses the threshold identified in N v United Kingdom.

(2) Though there is some evidence of discrimination in access to AIDS medication and food in Zimbabwe, it is not such as to show a real risk of such discrimination.

(3) The return to Zimbabwe of a Zimbabwean diagnosed with HIV/AIDS does not place the United Kingdom in breach of its obligations under the Disability Discrimination Act.”

We will deal with the first conclusion first. The case of N referred to by the Tribunal was decided by the European Court of Human Rights and is the leading case on health cases. It sets an extremely high threshold for a claim based on health issues to be successful.

See paragraph 42 thereof: “… The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious … 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 Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.” [Emphasis Added].

In relation to conclusions (2) and (3), the Tribunal supported its conclusions based on the following key paragraphs:

a)  Paragraphs 210 & 214, – a significant number of people are currently receiving HIV treatment in Zimbabwe and the evidence of the discrimination and politicisation of ARV treatment shows a “mixed picture”.

b)  Paragraph 219 – in terms of access to food and its politicisation there are no confirmed cases of discrimination as distribution is through international NGOs who operate a zero tolerance approach with regard to bias in the selection of beneficiaries. Further, the Ministers of Health and Finance in the government of national unity, Henry Madzorera and Tendai Biti respectively, are MDC members and Prime Minister Morgan Tsvangirayi chairs the Council of Ministers responsible for implementation of government policies.

c)  In relation to the Article 8 argument which focused on the right to access treatment, they concluded that the medical argument in such cases has to meet the “exceptionality test” which I have referred to above, rather than the more flexible and generous “reasonableness test” which is applicable in other Article 8 cases involving family life.

d)  The Upper Tribunal distinguished its decision with that made in JA (Ivory Coast) on the basis that in that case, the Home Office was aware of the HIV status of the appellants, and had granted and renewed their visas on this basis. Further, all the Appellants had almost always had permission to remain in the UK.

e)  Paragraph 239, dismissed the Article 14 discrimination argument on the basis that the Home Office’s right to remove the appellants is permissible under Article 8 in relation to the maintenance of immigration control.

I am of the view that following the decision in RS, the majority of people who will seek to remain in the UK on the basis of being HIV positive and having been on treatment are highly unlikely to meet the “ truly exceptionality test.” Only those who can show that they fall under JA (Ivory Coast), ie, those previously granted discretionary leave by the Home Office on the basis of their illness are likely to succeed.

The challenge will be in proving that one’s case is “truly exceptional”, which is likely to involve being on a deathbed, not having family to look after oneself and lack of access to treatment in the country of origin, which is clearly an uphill battle.

However, the ray of light in RS (in relation to the issue of asylum) comes from paragraph 199, in which the Upper Tribunal confirms that RN is still good law. However, there are very serious concerns to be found in paragraphs 219, 295 & 304, which all suggest that in MDC strongholds or portfolios (in the Government of National Unity), there is no risk of discrimination or bias in relation to access to treatment.

Clearly, this reasoning is at odds with the Tribunal’s findings in RN – where the Tribunal concluded the opposite, specifically that those who come from MDC strongholds are at risk of persecution from Zanu PF and its agents as they are likely to be assumed to be MDC supporters.

Brighton Mutebuka is the Principal at Mutebuka & Co Immigration Lawyers in Leeds. He can be contacted on info@mutebukaimmigrationlawyers.co.uk, Tel. 01132473962 or mobile: 07852344915   visit our website at www.mutebukaimmigrationlawyers.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims as a result of the use of this information