Scottish Court of Session Decisions

"7. However, in our opinion there are exceptional circumstances in this case and we strongly recommend that before removal is considered the Secretary of State reviews all the facts afresh. We find that the claimant is the head of a family, which includes one child who is already suffering AIDS and three others who might too be vulnerable. Also the claimant, it would seem, has no immediate family in Uganda and she herself last lived there seven years ago. Given her medical condition it is not unreasonable to assume that her ability to obtain appropriate treatment and to provide for her family in Uganda would be extremely limited. We have no real reason to doubt her claim that she would have no support of any kind - emotional, moral or physical - in Uganda.

8. The appeal is allowed but we recommend a sympathetic reconsideration of all relevant facts."

"We note that the Immigration Appeal Tribunal whilst reluctantly allowing the Secretary of State's appeal in this matter recommended a sympathetic reconsideration of all the relevant facts, as they have stated in paragraph 8 of that determination. We wonder if you can confirm that such a reconsideration is taking place. Further, we wonder if you could confirm what further documentation and information you require to allow you to come to a positive decision in favour of our client. We look forward to hearing from you as soon as is possible."

On 7 April 2004 they again wrote to the respondent in the following terms:

"We note there has been no response to any correspondence from either ourselves or our client's former solicitors ... in respect of the reconsideration of this case as discussed in the Tribunal determination. Mr Drabu (the chairman of the IAT) recommended a sympathetic consideration of all the relevant facts in this case. We would be grateful if you could confirm that such a reconsideration is taking place and would urge that some form of status, be it humanitarian protection or discretionary leave, be granted to our client and her dependants.

In addition to the matters raised by the Immigration Appeal Tribunal, we would ask that you consider the five references attached hereto. Our client, we would suggest, on the basis of the evidence and the references, is an individual who has a positive contribution to make to UK and in particular Scottish society. She appears to be a selfless, generous individual who has touched the lives of a great number of people. One only needs to read the enclosed references to see that our client is someone who wishes to use what time she has left to alleviate the suffering of others. She is a religious woman who has used her own experiences in order to attempt to educate individuals and organisations on the issues and problems surrounding HIV sufferers. She has assisted with the Glasgow Women's Library, Barnardo's and Body Positive. She was also involved in the African choir as noted in Father Chemello's missive.

In summary we would suggest that there are compassionate and compelling reasons as to why our client should be granted status along with her dependants outwith the immigration rules.

We would be grateful if consideration could be given as a matter of some urgency. You will note the Tribunal determination was promulgated on 24 January 2003. The final decision in this case was on 2 March 2003. We would therefore be grateful, given the fact that a year has elapsed since that determination, for your immediate regard being had to this application. We look forward to hearing from you in early course."

"Your client's case is being considered under current policy. However, in order to progress this case, I require an up-to-date medical report on both your client and her daughter. This should include recent details of medication, ongoing treatment and prognosis in each case."

The petitioner's Glasgow solicitors subsequently submitted to the respondent a medical report on the petitioner dated 28 July 2004 from Dr Andrew Winter, Consultant in Genitourinary and HIV Medicine, and a medical report on the petitioner's daughter who suffers from AIDS dated 3 September 2003 from Dr Rosie Hague, Consultant in Paediatric Infectious Diseases and Immunology.

"Thank you for your letter of 7 April 2004 and subsequent correspondence in which you have asked for your representations on behalf of your above named client to be considered as an application for Humanitarian Protection or Discretionary Leave. Please accept my apologies for the lengthy delay in replying."

At paragraphs 5 and 6 he stated as follows:

"5. You have asked that your client's case be reconsidered following the recommendation of the Immigration Appeal Tribunal's determination which was promulgated on 24 January 2003. The Tribunal dismissed your client's Article 3 claim under the European Convention on Human Rights, but recommended that before removal is considered a sympathetic reconsideration of all the facts is undertaken. You also ask that we take into consideration the references from the various charitable organisations who confirm that your client makes a positive contribution to the United Kingdom and in particular to Scottish society.

6. All the points raised in your submissions were considered when the earlier claim was determined. They were dealt with in the letter giving reasons for refusal/appeal determination of 24 January 2003. Although your submissions are not significantly different from the material that has previously been considered, I have, as the Tribunal recommended, reconsidered the relevant factors of this case."

In paragraph 7 the respondent referred to the two medical reports submitted and in paragraph 8 to the information contained in the latest Home Office Country Information and Policy Unit (CIPU) report dated October 2004. He went on to state as follows:

"9. Taking the various aspects of this report into account, I conclude that your client and her daughter will be able to continue and manage their treatment on their return to Uganda. I conclude that the most recently obtained medical reports do not add additional weight to your client's case and do not create a realistic prospect of success.

10. I have read the supporting letters from the various organisations praising your client's dedication to her charitable work. Whilst appreciating that Mrs Mushaka has been a valued member of the community during her stay in the United Kingdom, this does not give rise to granting Leave to Remain in the United Kingdom. There is no reason why Mrs Mushaka cannot continue to help others in Uganda when she returns. I therefore conclude that these letters do not create a realistic prospect of success.

11. Having fully reviewed all the factors of this case, as well as considering the recently obtained medical reports and supporting letters, I am not prepared to reverse our decision of 4 March 2001.

12. As the Secretary of State has decided not to reverse the decision on the earlier claim and has determined your submissions do not amount to a fresh claim, you have no further right of appeal.

13. The asylum claim has been reconsidered on all the evidence available, including the further representations, but we are not prepared to reverse our decision of 4 March 2001 upheld by the Immigration Appeal Tribunal on 24 January 2003.

14. It has been concluded for the reasons given above that your client does not qualify for humanitarian protection or for limited leave to enter or remain in the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave."

"5. Some points raised in your submissions were considered when the earlier claim was determined. They were dealt with in your appeal determination dated 24 January 2003 and the refusal of further representations letter of 2 June 2005.

6. The remaining points raised in your submissions, taken together with the material previously considered in the letter, would not have created a realistic prospect of success.

7. In their letters of 14 June and 27 June 2005 your representatives have stated that you would be unable to access medical treatment for yourself and your daughter if you were to return to Uganda. However, this aspect of your claim was considered at your appeal of 23 January 2003 and in the refusal letter of 2 June 2005 when it was concluded that you and your daughter would be able to continue and manage your treatment on return to Uganda as the medical treatment for HIV/AIDS there was more than adequate.

8. Your representatives have also stated that your rights under Article 3 of the Human Rights Act 1998 (sic) would be breached should you be returned to Uganda as there is a possibility that you would have to watch your daughter die. However, as stated above, in our letter of 2 June 2005 we indicated that there was indeed medical treatment available to yourself and your daughter in Uganda and in this respect it is not accepted that your daughter would have to suffer to the extent that your representatives are stating. It is therefore not accepted that your rights under Article 3 of the Human Rights Act 1998 (sic) would be breached as you claim.

9. Your representatives have further stated that your removal to Uganda would affect your wellbeing as you would not be able to find employment. However, it is considered that your claims that you would be unable to find employment are entirely speculative. Nevertheless, being unable to find employment is the position many people in the world unfortunately find themselves in and it is not sufficiently compelling or compassionate to warrant a grant of leave outside the Immigration Rules.

10. Your representatives have further stated that your removal to Uganda would affect your wellbeing as you would not have any family to support you there. However, it is noted that, besides your dependant children, to our knowledge, you do not have any other family members to support you here in the UK. In this respect, it is not considered that your removal to Uganda is justified."

At paragraphs 11 and 12 the respondent considered the submissions relating to private and family life under Article 8 of the ECHR and rejected them.

"Delay in decision-making may cause an individual to lose specific advantages or opportunities which timeous decision-making would have conferred ... But in each case it is the effect of delay which assists the claimant's proportionality argument. It is very difficult to envisage a case in which the removal of someone who had no claim to enter and no claim for international protection would be disproportionate merely because of a delay in decision-making which had had no disadvantage ... or which had not led to the creation of circumstances which themselves made removal disproportionate. It is the effects of delay to which an adjudicator should look rather than to the fact or extent of delay itself. Delay by itself would be not so much really determinative as rarely ever significant."

"Where humanitarian protection is not warranted, caseworkers must consider whether a grant of discretionary leave is appropriate. Humanitarian protection is not afforded to those whose claim rests on the severity of a medical condition, who may instead be eligible for discretionary leave. A person who would be excluded under 1F(b) of the Refugee Convention will similarly be excluded from humanitarian protection, but would qualify for a grant of discretionary leave if his or her removal would breach the ECHR. Discretionary leave is granted where removal would involve a direct breach of Article 8 ECHR ..., and is also appropriate in medical or other humanitarian cases where return would breach Article 3(or 8) ECHR, and for unaccompanied children who qualify for neither asylum nor humanitarian protection but for whom there are not adequate reception arrangements available in their own country. Other cases which could warrant the grant of discretionary leave for unsuccessful asylum seekers would require facts 'so compelling that it is considered appropriate to grant some form of leave'."

The quotation at the end of the above passage is from the Home Office Asylum Policy Instruction on Discretionary Leave. So far as medical cases are concerned, para 2.3 of that Instruction (quoted in footnote 8 at p 826 of Macdonald) states that "the United Kingdom's obligations would only be engaged where (a) the United Kingdom can be regarded as having assumed responsibility for the individual's care; (b) there is credible evidence that return, due to complete absence of medical treatment in the country concerned, would significantly reduce the applicant's life expectancy; and (c) return would subject them to acute physical and mental suffering". Those conditions, said Mr Stewart, had not been satisfied in the present case.