Immigration Law Update: GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40

GS (India) & Ors v The Secretary of State for the Home Department [2015] EWCA Civ 40
 

New medical treatment case addressing Article 3 and 8 thresholds. Appeals under Article 3 dismissed. All As suffered from end stage kidney disease and/or HIV and would either not have access to treatment in their country of origin on account of cost, insufficient or no provision of treatment. In GM’s case there was evidence of suicide risk. All except GM and KK were overstayers. It was contended that removal would breach Article 3 and/or 8 on account of the resultant extreme reduction in life expectancy.

To reach the threshold of Article 3 an intentional act is required save for exceptional circumstances where there are compelling humanitarian considerations (§§39, 40-3, 52, 62). At §§ 49-50, 66 it was emphasized that in D v United Kingdom (1997) 25 EHRR 31 the A was on his deathbed and was soon to die regardless of which country he was in. In principle there is no entitlement to treatment in the expelling state principle: N v United Kingdom (2008) 47 EHRR 39 (§67).

Article 8 is concerned with the protection of the quality of life and not its continuance (§§39, 44-5). It is possible to succeed on Article 8 where an Article 3 claim is dismissed if the A can show factors which brings the case within the Article 8 paradigm (§86). MM (Zimbabwe) [2012] EWCA Civ 279 cited with approval (§86-7). Five appeals dismissed, GM remitted to the UT by consent.


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