Asylum, AIDS and Article 3- a hard case ?

Sadly, we are all too aware of the plight of many in Africa who suffer from the AIDS virus with little real hope of adequate medical help in their homeland.

What are the obligations of the United Kingdom to such AIDS victims who claim asylum here under the Refugee Convention but whose claim under that Convention is refused ? Would the United Kingdom be in breach of Article 3 of the European Convention on Human Rights if it returned such a failed asylum seeker to their home and where the prospect of treatment was remote ? Would such a return be inhuman or degrading treatment such as to breach Article 3 ?

In N v. The Secretary of State for the Home Department [2005] UKHL 31, decided on 5 May 2005, the House of Lords appear to have answered this question in the negative when they refused the appeal of an AIDS sufferer who claimed a right to remain in the United Kingdom on the basis of such an alleged breach of Article 3. The full judgment can be found on the House of Lords Judgments website which can be found in my links section.

Miss N came from Uganda in 1998. Her claim for asylum was refused. Almost on arrival she was diagnosed as being HIV positive. As a result of modern drugs and skilled help her life expectancy if she remains in the UK is good. She could expect to live for many years in good health. In Uganda where treatment is only available to a few at a very large cost her life expectancy is a matter of a couple of years at most. Moreover hospital treatment for those in the final stages of AIDS would be either non-existent or very poor compared with the UK. She would be likely to suffer a slow and painful death in Uganda.

Notwithstanding these stark facts the House of Lords , having reviewed similiar cases which had been considered by the European Court of Human Rights, held that Article 3 would not be breached by her return. It is evident all of the judges had nothing but real sympathy for her plight. However all of them held that Article 3 would only be violated in the most exceptional of cases. Sadly, this type of case was all too common.

An exceptional case would appear to be one where the claimant is already in the final stages of AIDS and will die soon even if they remained in the UK, and where there is no realistic prospect of treatment or support in the home country, and as a result, that it would be very likely that the victim would die in the most distressing circumstances shortly after return.