At Right to Remain, we frequently get contacted by people (or their supporters) seeking the right to remain in the UK due to their medical situation. We cannot give immigration advice, and we also do not undertake individual casework – instead we provide information so that people can understand the legal process, know what their options may be, and take action for their right to stay.
Cases involving human rights/medical grounds are particularly complicated, and often very distressing. Paul Erdunast recently wrote an excellent article for the Free Movement blog on the legal background to Luqman Onikosi’s case – a young man fighting for justice and life, as the Home Office are attempting to send him back to Nigeria where he will die due to his medical condition.
We’ve been asked to provide an explanation of this legal situation for readers that do not have a legal background. Here goes!
What is a ‘medical’ case?
In this context, we are talking about someone seeking the right to stay in the UK because they need medical treatment that is not available to them in their country of origin.
These cases are usually argued as human rights cases – that removing the person from the UK would breach their human rights, because they may die if not able to get the medical treatment, or their quality of life would be so poor it would breach their human rights.
Generally, these cases are not to do with claiming asylum in the UK, because they do not involve persecution. There may be exceptions to this, for example if someone is denied medical treatment because of their ethnicity or political activity etc. Or other international protection may be relevant if medical treatment is not available because of civil war, outbreaks of violence or humanitarian disaster. This article, however, is not considering these types of scenarios. If you think your case does fall under the circumstances just described, you should speak to a lawyer about legal aid representation for a possible asylum or humanitarian protection claim.
Article 3 and Article 8
Human rights in the UK are protected by the Human Rights Act, which implements in UK law the rights set out in the European Convention on Human Rights (to which the UK is signatory). This means that the UK government can be challenged if it can be argued they are breaching the rights protected in the Human Rights Act.
The two articles of the Act that are generally applied to medical cases are Articles 3 and 8:
Article 3: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. This is an absolute right, which means it cannot be breached in any circumstances.
Article 8: The right to family and private life. This is not an absolute right, so cases based on Article 8 need to show that there is or would be a disproportionate breach of this right. Interference with private and family life can only be made when that 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.
The threshold for Article 3 medical cases is extremely high. Case law (previous cases determined on similar issues that are a guide to how new cases should be decided) says that the threshold for saying Article 3 would be breached, is when a person is close to death and where removal from the UK would hasten their death, and expose them to a real risk of dying “under most distressing circumstances”, because this would amount to inhuman or degrading treatment.
It is not sufficient to argue that you need to stay in the UK because the medicine you need to keep you well would be too expensive for you in your own country (unless it is so prohibitively expensive it is in effect unavailable), or even that the death by disease may in itself be extremely painful. As we mentioned above, these cases are extremely upsetting as the current case law effectively means it can be legal to remove people to their death.
To succeed in a medical case based on Article 8, you would need to show that the interference with your right to family and/or private life was disproportionate – that your need to stay in the UK and access healthcare outweighs the UK government’s right to control immigration and protect the economic well-being of the UK (by limiting the amount of public money spent on free healthcare).
You would need to demonstrate the severe consequences of not receiving the medical treatment – not to the extent of Article 3 cases, but still a high bar to meet. In the case of Akhalu, which concerned a Nigerian woman called Rose who publicly campaigned for her right to stay because of the terrible way she was treated by the Home Officer, the judge noted “there was nothing in any way hypothetical or speculative about the inevitable difficult, early and unpleasant death that would follow return to Nigeria”.
Successful Article 8 medical cases have a strong family/private life element to them – you need to show the strength of your family/private life here in the UK and not just evidence the lack of healthcare in your country of origin. The two successful cases cited in Paul Erdunast’s article both demonstrate this.
In the case called JA (Ivory Coast), the court found in favour of JA who was seeking the right to stay in the UK because of her need for medical treatment for AIDS. This decision was based on “the private and family life she had built in the UK and the impossibility of securing treatment in the Ivory Coast”.
In Rose Akhalu’s case, which she had to fight through the courts, the “active role in the community that she had played and the impossibility of replicating this private life in Nigeria” were important in winning her case.
In both these cases, the fact that the person had entered the UK lawfully, and had the right to be in the UK when they initially received medical treatment, counted in their favour.
Why not Article 2?
Article 2 of the Human Rights Act relates to the right to life. Although at first this would seem a sensible right to argue in medical cases, given that in most cases you are saying you would die if returned to your country of origin, Article 2 does not actually useful in these cases.
Paul Erdunast helpfully points out that:
Article 2 only protects people from death inflicted at the hands of the state or non-state bodies. A state does not violate Article 2 insofar as it lacks the medical capability to treat certain diseases. Therefore, removing a person to such a country would not be a breach of their right to life.
In the UK, legal aid is available for asylum claims, but is no longer available in England and Wales for legal advice or representation in non-asylum immigration matters. In terms of legal aid, an ‘asylum claim’ also includes humanitarian protection claims (on the basis of a real risk of serious harm/indiscriminate violence) and claims based on Articles 2 and 3 of the European Convention on Human Rights (the right to life; and the right not to be subject to inhuman, degrading treatment/torture).
If you are in England or Wales and you have a very strong medical case that could be argued on Article 3 grounds, you should be entitled to legal aid (free legal advice and representation) for your case. If your case is based on Article 8 only (and you are in England or Wales), you are unlikely to be able to get a legal aid lawyer to take on your case. If you are in Scotland or Northern Ireland, you will be eligible for legal aid in either case.
If you are unable to get a legal aid representative, other options may be exceptional legal aid funding, a lawyer taking on the case ‘pro bono’ (for free), or paying for (or fundraising for) private legal advice. Read more about that here in our Toolkit.
Thinking about evidence
If you have a lawyer, they will make the legal arguments for your case but they may ask you to help get evidence for your case, particularly to prove the extent of your family and/or private life in the UK.
If you don’t have a lawyer, you and/or your friends, supporters will have to try and get this evidence yourself.
To succeed in a medical case, you will need medical and expert evidence to show that the treatment you need is not available in your home country. You will need to provide evidence about your condition and the treatment you have received in the UK, and your likely prognosis (both in the UK and if returned to your country of origin).
For Article 8 medical cases, you will also need to demonstrate your family/private life in the UK. This might include witness statements or supporting letters from family or community members, and other evidence demonstrating the length and depth of your connection to the UK. Read more about that here.