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Th / 34949/2002
IN THE IMMIGRATION APPEAL TRIBUNAL
DR CONGO 
The IMMIGRATION ACTS
MS. D. K. GILL (CHAIRMAN)MR. M L JAMESMR. ANVER JEVANJEE
The Secretary of State for the Home Department
DETERMINATION AND REASONS
Ms. M. Halfpenny, of Immigration Aid Unit.
Mr. B. O’Leary, Senior Home Office Presenting Officer.
The Appellant is a national of the Democratic Republic of the Congo (formerly Zaire)(DRC), aged about 31 years. She arrived in the United Kingdom on 2nd April 2002.
She has appealed, with leave, against the determination of Mr. J P McClure, anAdjudicator, who (following a hearing on 28th February 2003 at Aldine HouseManchester) dismissed her appeal on asylum and human rights grounds against theRespondent’s decision of 22nd May 2002 to give directions for her removal to theDRC as an il egal entrant.
The issue before us is whether, given the Appel ant’s medical condition, her removalwould be in breach of her rights under Article 3 and Article 8 (physical and moralintegrity). She is an HIV sufferer.
At paragraphs 40 and 41 of the Determination, the Adjudicator referred to theTribunal’s Determination in the case of Tientcheu  UKIAT 05877, where theTribunal considered the availability of treatment for those suffering from HIV / AIDSin the Republic of Congo.
It is apparent, from paragraphs 40 and 41 of the Determination, that the Adjudicatorplaced reliance on Tientcheu when considering whether treatment would beavailable in the DRC (he made specific reference to the observations in that case asto the availability of hospital beds for those suffering from HIV). However, that caseconcerned a different country. It concerned the Republic of Congo, which has itscapital in Brazzaville, as the first sentence of that Determination makes clear. TheAppellant is, as we have stated, from the DRC, with its capital in Kinshasa, and shewould be returned to the DRC.
At the hearing before us, it was common ground that the Determination could notstand, for the reason given above.
6.1 Ms. Halfpenny referred us to the medical evidence. The Appellant’s CD4 count is
about 220. She is on anti-retroviral treatment but is shortly expected to change hermedication. Ms. Halfpenny asked us to consider the Appellant’s present condition,the effect of withdrawing the treatment she is currently receiving and the support sheis currently getting. As her health worsens, she becomes more and more reliant onthe support she is receiving. She submitted that the United Kingdom has assumedresponsibility for her. She is not responding well to her current treatment and, in afew months’ time, she is expected to undergo a change in her treatment.
6.2 The Appellant has an unusual type of infection, with low blood platelets. She is at risk
of secondary infection (which means that she is at risk of infections such astuberculosis) and therefore at risk of bleeding to death (page B8 of the Appellant’sbundle refers).
6.3 Although the Appellant is from Kinshasa, it was Ms. Halfpenny’s understanding that
she has lost contact with her family members. At the time of her departure from theDRC, her mother and step-father were in Kinshasa, as well as her son. Her son wasliving with relative. According to her witness statement, her brother fled the DRC andher sister has been killed. Her father is dead. She has friends in Kinshasa, but, inMs. Halfpenny’s submission, there was no guarantee that they would be willing orable (financial y and otherwise) to support someone who is suffering from heril ness. Furthermore, HIV is stigmatised in the DRC (pages H15 to H33, in particular,H17, refer).
6.4 The DRC is a country which has been through several years of war and on-going
strife. It is stil war-torn. There is a complete absence of medical treatment. Mil ionsof people are displaced. There is a lack of shelter, a lack of food and a lack of basicnecessities. Even before the conflict, the health system was already failing to providehealth care, as is evidenced by the CIPU Report. The system appears to havecompletely disintegrated now.
6.5 Ms. Halfpenny referred us to various documents in the Appellant’s bundle (for
example, pages H1, H5, H14), which she submitted show that treatment for HIV isnot valuable in the DRC. Page H14, which is a document from Oxfam, states that 2.5mil ion people in Kinshasa live on less than US$ 1 per day. This means that theAppellant would not be able to purchase the drugs which she needs. Since the
Appellant is not going to be removed imminently, her reliance on the support shereceives in the United Kingdom will increase.
6.3 Paragraph 4.38 of the CIPU Report states that anti-retroviral drugs can be purchased
from private individuals. In Ms. Halfpenny’s submission, this means that themedication would only be available on the black market and does not amount to“access” to medication. Furthermore, she requires care and sophisticated monitoring.
7.1 Mr. O'Leary did not dispute that the DRC is in a state of war. However, the DRC is a
large country and the war is in the eastern part of the country. The documents towhich Ms. Halfpenny had referred relate to the eastern part of the DRC.
documents were therefore not relevant to the Appellant’s claim, because she wouldbe returned to Kinshasa. Kinshasa itself has not seen conflict since 1998.
7.2 Page H14 refers to an inability of the local population to purchase medical treatment
or drugs. However, according to the judgement of the Court of Appeal in ex parte K,an inability to purchase drugs does not means that a claim under the ECHR cansucceed.
7.3 Mr. O'Leary referred us to the judgement of the European Court of Human Rights
(ECtHR) in D v. United Kingdom. He submitted that the Appellant does not fall withinthis exceptional category.
In reply, Ms. Halfpenny submitted that the applicant in ex parte K was from Uganda.
There was clear evidence in that case that treatment was available in Uganda,although the applicant would not be able to afford the treatment. On the other hand,the CIPU report for the DRC states that anti-retroviral drugs are available fromprivate individuals, which means that the Appel ant would have to pay black marketprices in order to obtain them. It cannot be said that the Appellant would be able to“access” medication if the medication is only available through private individuals.
The opening sentence in paragraph 4.38 of the CIPU report states that, in general,there is no medical treatment or care available for persons suffering from AIDS in theDRC. Some of the drugs she requires have only just become available in the UnitedKingdom. They would not be available in the DRC. In the D case, it was recognisedthat the applicant had a close relative in St. Kitts but there was no guarantee that thatperson would undertake the care of the applicant. People who cannot even feedthemselves in the DRC would not undertake the care of the Appellant. To withdrawthe treatment and support which the Appellant has been receiving in the UnitedKingdom would make her situation worse than if she had never received it in the firstplace.
Paragraphs 3.8, 5.39 and 5.40 of the CIPU report show that it is dangerous forwomen to move about in Kinshasa at night. The Appel ant is therefore a veryvulnerable young person who would be at risk even in moving around freely. By thetime removal takes place, she would be even more vulnerable.
We reserved our determination. We have decided to dismiss the appeal. We nowgive our reasons.
10. As stated above, it was common ground that the Adjudicator's Determination cannot
stand. We therefore consider the Article 3 and Article 8 claims ourselves. It is tritelaw that we are entitled to take into account all of the evidence placed before us, toreach a decision.
11.1 With regard to the Appel ant’s medical condition and the medical treatment and care
The letter at page B8 from Dr. F J Vilar, Consultant Physician, shows thatshe was diagnosed as being a HIV sufferer in April 2002, when her CD4count was 210. The normal range is between 500 and 1500. Her mainproblem was bleeding - secondary to very low platelets (clotting cells). Withtreatment, her CD4 count increased to 320. According to the letter dated 5thFebruary 2003 (page B9), Dr. Vilar states that her CD4 count was slightlylower than previously, at 220. The letter from Dr. Vilar at page G1, however,indicates that her CD4 count in March 2002 was 492.
The Appellant is currently taking her second combination of drugs calledTrizivir (Abacavir, Lamivudine and Zidovudine). She is already developingevidence of drug failure. This is very suggestive that she is starting to havevirological failure. This would mean that she would need to have a completeswitch of the drugs she is taking and commence her third combination. Thetime scale Dr. Vilar gives for the Appel ant’s switch to her third regime isbefore the end of the current year.
The drugs she is likely to need as her third combination wil includemedications such as Tenofovir, Kaletra and Didanosine.
As is so often the case with HIV sufferers, the medical evidence before usshows that the Appellant needs medication as well as specialist monitoring.
She is more unfortunate. Dr. Vilar describes her as one of the unluckypatients who has developed drug failure.
11.2 If the Appellant does not receive the medication and specialist mentoring that she
needs, then Dr. Vilar states (page B8, letter dated 30th October 2002) that she wouldbe “most likely” to have the problem with low platelets again, which could lead to life-threatening bleed, her CD4 count will continue to drop and she “will inevitably catchAIDS and die”. Her condition will lead to death in the short to medium term. At pageG1, Dr. Vilar states that doctors who look after HIV patients without adequateexperience have higher mortality on these patients than experienced doctors.
11.3 With regard to the availability of treatment, we note that:
Dr. Vilar states (page G1) that he is not aware that the Appellant’s secondcombination wil be available anywhere in Africa and but states that Abacavirin particular will not be available.
In relation to the third combination, Dr. Vilar states that Tenofovir is only veryrecently available in the United Kingdom and is not available in developingcountries; he does not think that Kaletra is available in the DRC and he saysthat Didanosine is likely to be available at high cost in the United Kingdom.
There is a letter at pages G2 to G4 from a Ms. L. Shentall, who is aSpecialised Service Manager for George House Trust. She states that it isher experience that the drugs comprised in the third combination which theAppellant would receive, as well as the combination she is currently taking,are not available in the DRC at al . Nor, she says, would the Appellantreceive medical care which she says must be administered correctly.
However, we do not know what Ms. Shentall bases her opinion as to
availability on, save that she attached, by way of Appendix 2 to her letter,various documents about the DRC. Almost all of these documents relate tothe war-striven areas of the DRC. The only exception is the document atpages G12 and G13, which mentions the efforts of the DRC government tocombat AIDS/ HIV amongst police officers and the army. These documentsdo not assist the Appellant’s case.
For these reasons, we are not prepared to place much reliance on Ms.
(iv) Ms. Halfpenny referred us to various documents in the Appel ant’s bundle, to
support her assertion that the medication and care which the Appellant wouldneed would not be available in the DRC. However, we agree with Mr. O'Learythat these documents do not assist the Appellant’s case because they relate tothe situation in the war-striven parts of the DRC. For example:
page H1 refers to Bukavu, which is right on the border with Rwanda,which is at the heart of the contested area in the civil war. Furthermore,this report states that the area is war-torn, which Kinshasa is not.
pages H15 and H17 (which refer to stigmatisation and the medicalconsequences) also relate to the war-torn area in eastern DRC. This isevident from the fact that the document refers to Kinyarwanda-speakingattackers. Kinyarwanda is the language of Rwanda.
pages H17 and H18 again refer to soldiers and militiamen.
The CIPU Report (paragraph 4.38) states that, in general, there is nomedical treatment or care available in hospitals and clinics from peoplesuffering from AIDS in the DRC. There are no specialised hospitals orcentres for the treatment of AIDS but some hospitals in Kinshasa admit AIDSsufferers for the treatment of secondary infections. However, drugs importedfrom Europe can be bought from private individuals. The treatment is basedon the Tri-therapy of the combination of three of the fol owing drugs: Retrivir,AZT, DDI, Zerit and Stavidine.
11.4 In order to determine whether the Appellant’s removal would engage her rights under
Article 3, we need to consider the decision of the European Court of Human Rights(ECtHR) in Bensaid v. The United Kingdom [2002[ INLR 325. We think it necessaryto repeat what the court said at paragraph 40 of the judgement:
The Court accepts the seriousness of the applicant’s medical condition. Havingregard however to the high threshold set by Article 3, particularly where the casedoes not concern the direct responsibility of the Contracting State for the infliction ofharm, the Court does not find that there is a sufficiently real risk that the applicant’sremoval in these circumstances would be contrary to the standard of Article 3. Itdoes not disclose the exceptional circumstances of the D. case (cited above) wherethe applicant was in the final stages of a terminal il ness, AIDS, and had noprospect of medical care or family support on expulsion to St. Kitts.
In Bensaid, the Court also decided that removal would not breach Article 8 of theConvention.
11.5 Although we acknowledge that the Appellant’s condition appears to be worse than
many other HIV sufferers, it has to be borne in mind that she has not developed ful -
blown AIDS. We appreciate that the combination of drugs comprising her secondcombination are not specifical y mentioned in paragraph 4.38 of the CIPU report asbeing available from private individuals. However, she would be able to obtain someanti-retroviral treatment, albeit from private individuals. This is, of course far fromideal and may wel mean that she would have to pay a high price for them. However,we consider that it does stil mean that she will have access to medication. We bearin mind that there is a real risk that a switch in her medication from the secondcombination which she is taking or, indeed, from the third combination, to themedication which is available in the DRC would result in her condition deteriorating.
We recognise that page H14 of the Appel ant’s bundle states that 2.5 million peoplein Kinshasa live on less than US$ 1 per day. We do not know the total population ofKinshasa but we have no reason to doubt that a very high proportion of thepopulation in Kinshasa live on very smal earnings. However, a claim under theECHR cannot succeed on the basis of an inability to pay for treatment. We acceptthat general living conditions in the DRC are very difficult. We accept that, inKinshasa, the Appellant will not have access to the sophisticated monitoring whichshe receives in the United Kingdom. Indeed, the likelihood is that her condition wilnot be monitored adequately, if at al . However, if the Appellant does developsecondary infection, then the CIPU report states that some hospitals in Kinshasaadmit AIDS sufferers for the treatment of secondary infections. There is no reason tosuppose that she would not be able to receive treatment for secondary infection. Wehave no reason to doubt that the withdrawal of the treatment and support which theAppellant receives in the United Kingdom will make her condition worse than if shehad never received it in the first place.
11.6 We agree with Mr. O'Leary that the Appellant’s case falls far short of the
circumstances of the applicant in D v. U.K. for the fol owing reasons:
In the D case, the applicant's CD count was at 10 and had been at that level for18 months. On the other hand, the Appel ant’s CD count is at about 220.
(ii) In the D case, the applicant had full blown AID with a life expectancy of 8
months even with medication. On the other hand, the Appellant has notdeveloped ful -blown AIDS.
(ii ) In the D case, the applicant had been suffering from secondary infection, with
bacterial infections, and weight loss and fatigue. He was clearly weak and closeto death. Indeed, death was imminent. On the other hand, the Appel ant has notreached that stage. Although she might suffer from secondary infection if she istaken off her medication, her case cannot be compared to that of the applicant inthe D case.
(iv) In the D case, there was no treatment available for the applicant in St. Kitts. In
this case, there is some treatment available in Kinshasa. Drugs can bepurchased from private individuals, although this is not ideal. Some hospitals inKinshasa admit patients for the treatment of secondary infection. In so far assupport is concerned, the Appellant said at the hearing before the Adjudicatorthat she has friends in Kinshasa. Ms. Halfpenny informed us that it was herunderstanding that the Appellant has lost contact with her family in Kinshasa.
However, this has not been adduced to us by way of evidence, as such. In anyevent, she has friends, by her own evidence. There is no reason to suppose thatthey would not be willing or able to assist her. We recognise that the applicant inthe D case had a close relative in St. Kitts and that the ECtHR recognised thatthere was no guarantee that that person would undertake the care of the
applicant. However, the applicant in that case was in a very serious state. TheAppellant's condition is very far removed from that.
11.7 We would make clear that we take into account the fact that, by the time the
Respondent is able to effect returns to the DRC, the Appellant’s condition is likely todeteriorate and that, consequently, her reliance on the support which she receives islikely to increase. However, given that her present condition is far removed from theapplicant in the D. case, that she would be able to access some medication (albeitfrom private individuals) and that she would be able to obtain treatment forsecondary infection, we are not satisfied that her removal would be reasonably likelyto result in her condition deteriorating to such an extent that the high threshold for abreach of Article 3 would be reached.
12.1 We now turn to consider the Article 8 claim, physical and moral integrity. As we have
said, there is a real risk that a switch in the Appel ant’s medication from the secondcombination which she is taking or, indeed, from the third combination, to themedication which is available in the DRC would result in her condition deteriorating.
We proceed on the assumption that her condition would deteriorate to the extent thather rights under Article 8(1) are engaged. We therefore consider whether theinterference of her rights under Article 8(1) (by way of her removal to the DRC) wouldbe proportionate under Article 8(2) – there being no issue as to whether theinterference would be in accordance with the law, whether the reason for theinterference comes within one of the (exhaustive) list of reason in Article 8(2).
12.2 Neither party at the hearing before us actually addressed us on proportionality,
although Ms. Halfpenny said in opening that she relied on Article 8. We considerproportionality on the evidence before us.
12.3 Our observations in paragraph 11.5 above apply in the consideration of
proportionality. We do not repeat those observations but make it clear that we takethem into account.
12.4 We also take into account the fact that immigration control is a very weighty
consideration. Not only is it the case that this has consistently been mentioned by theTribunal in several cases, it is also clear, from paragraph 54 of the judgment in D v.
U.K., the importance which the ECtHR places on a State’s right to controlimmigration. We consider it appropriate to set out paragraph 54 of the judgement:
Against this background the Court emphasises that aliens who have served their
prison sentences and are subject to expulsion cannot in principle claim any
entitlement to remain on the territory of a Contracting State in order to continue
to benefit from medical, social and other forms of assurance provided by the
expel ing State during their stay in prison.
12.5 Although the reference in paragraph 54 of the judgement was to the receipt of
medical services and other benefits by aliens whilst serving a prison sentence in theexpelling country, we consider that the principle is applicable by analogy wherealiens receive medical treatment in the United Kingdom whilst waiting for a resolutionof their immigration status. Where removal has been found not to be in breach ofArticle 3, the immigration status of an individual whilst receiving medical treatment inthe United Kingdom which then forms the basis of a claim under Article 8 is arelevant consideration. However, it will be relevant also to bear in mind any delay on
the part of the State in reaching a decision on that person’s application for leave toremain in the country.
12.6 In this particular case, we note that the Appel ant arrived in the United Kingdom on
2nd April 2002, claiming asylum on the same day. In the same month, she wasadmitted into hospital. The letter from Dr. Vilar (page B8) states that her mainproblem at that time was “bleeding - secondary to very low platelets (clotting cells)”.
This suggests that she was already quite il at that stage. She has been receivingtreatment ever since. This means that, for almost the entire period since her arrival inthe United Kingdom, she has been receiving treatment as a person whoseimmigration status was uncertain. The decision by the Secretary of State on herapplication for asylum was made on 22nd May 2002 – that is, less than two monthsafter her arrival. These are relevant considerations in deciding whether theinterference with her Article 8(1) rights strikes a fair balance between the demands ofthe general interest of the community and the rights of the individual. We considerthat the wider interests of the community in maintaining immigration control is a verystrong factor in this particular case.
12.7 We would make clear that, in our consideration of the Article 8 claim, we have taken
into account the fact that, by the time the Respondent is able to effect returns to theDRC, the Appel ant’s condition is likely to deteriorate and that, consequently, herreliance on the support which she receives is likely to increase. However, we alsotake into account the fact that the difficulty in effecting removal in this case is causedby a combination of two factors – firstly, the fact that the Appellant arrived in theUnited Kingdom without valid travel documents; and secondly, the fact that there aredifficulties at present obtaining travel documents from the DRC Embassy in London.
For al of the above reasons, we are satisfied that the Appel ant’s removal would beproportionate to the legitimate aim of immigration control.
The appeal is DISMISSED.
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