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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> MEO -v- Minister for Justice, Equality and Law Reform [2012] IEHC 545 (05 September 2011) URL: http://www.bailii.org/ie/cases/IEHC/2012/H545.html Cite as: [2012] IEHC 545 |
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Judgment Title: MEO -v- Minister for Justice, Equality and Law Reform Neutral Citation: [2012] IEHC 545 High Court Record Number: 2010 No 956JR Date of Delivery: 05/09/2011 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation 2011 [IEHC] 545 THE HIGH COURT [2010 No. 956 J.R.] BETWEEN/ MEO APPLICANT AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT JUDGMENT of Mr. Justice Hogan delivered on the 5th day of September, 2011 1. May a failed asylum seeker who is HIV positive and in receipt of anti-retroviral therapy and care in this State which is essential for her survival and care be deported to her country of origin where the availability of the necessary medical treatment in that country is, at best, uncertain? This is the essential question presented in this application for leave to apply for judicial review. It is another example of the human tragedies which are so often thrown up by the asylum system and which present often impossible dilemmas for Ministers, administrators and the courts alike. 2. If the State is indeed under a duty- whether by reason of the Constitution or by virtue of the European Convention of Human Rights Act 2003- to vindicate the applicant's right to life by ensuring that life-saving drugs are made available to her, then this raises significant public policy concerns. If that were the law, then it would raise the distinct possibility that many other persons living in developing countries and who were suffering from acute and life threatening illness might be tempted to come to this State by making a false asylum claim in order to secure such treatment: see, e.g., in particular the views expressed in this regard by Lord Hope in N. v. Home Secretary [2005] UKHL 31, [2005] 2 AC 296. 3. Other than mentioning these concerns at the present stage, I will refrain at this juncture from expressing any view thereon in view of the fact that they will be presumably addressed at the full hearing as, for reasons which will become clearer in the course of this judgment, I propose to grant the applicant leave to apply for judicial review. 4. The applicant, Ms. MEO, is a Nigerian citizen who arrived in Ireland on the 21st November, 2006, and sought asylum. She is aged 44 years and her medical circumstances are poor. She is separated from husband and she is unsure of the location of her three adult children. Her parents are deceased and her one sibling, a sister, died from cancer in 2009.So far as can be judged, she is largely isolated in the world. For reasons I will later develop, it is of some importance to note that while she is an active member of both a local support group for HIV sufferers and a local church group in this jurisdiction, it would seem that she has no family members and no established network of friends in Nigeria. While I will deal later with the details of her medical condition, I will first outline the circumstances by which her application for asylum and subsidiary protection came to be refused. 5. On the 10th January, 2007, the Office of the Refugee Applications Commissioner ("ORAC") recommended that she not be declared a refugee. This was followed by an oral hearing before the Refugee Appeals Tribunal on the 14th April, 2007. On the 29th May, 2007, the Refugee Appeals Tribunal affirmed the earlier ORAC decision. On the 19th July, 2007, submissions were made to the Minister to the effect that the applicant was entitled to subsidiary protection but this was rejected on the 24th June, 2008. 6. There then followed a series of exchanges between the parties which culminated in the Minister making a deportation order on the 12th March, 2009. Those proceedings were subsequently challenged in separate judicial review proceedings before this Court. The proceedings were, however, compromised and the applicant was given a further opportunity to make representations in support of an application for leave to remain in the State. Her solicitors made a series of further representations dealing principally with her medical condition and the likely consequences for her if she were to be, in fact, deported to Nigeria. Following an examination of file the relevant departmental officials recommended that a deportation order be made and the Minister made such an order on the 17th June, 2010. It is this deportation order that is the subject of the present application for leave to apply for judicial review. 7. The applicant's medical condition is not in dispute. It is accepted that the applicant is HIV positive and is in receipt of anti-retroviral therapy and care. It is important to emphasis that anti-retroviral therapy is essential for this applicant and she will require life long treatment requirement. If applicant were not to have such treatment, the consequences would in all probability be fatal. This point was made by the applicant's treating consultant, Professor Samuel McConkey, in his medical report of the 17th July, 2007:-
9. A key consideration is, of course, whether the applicant would be in a position to secure effective access to such treatment were she to be returned to Nigeria. It is also contended that the applicant would suffer considerable societal discrimination were she to be returned to Nigeria. 10. Both of these issues are hotly contested by the respondents. It is nonetheless important to bear in mind that Dr. McConkey was of the view Ms. O had had the benefit of such therapy in Nigeria prior to her arrival in Ireland. Thus, in his report of the 17th July, 2007, Dr. McConkey observed:-
13. Both sides have sought to invoke relevant country of origin information concerning the Nigerian HIVIAIDS epidemic in order to advance their respective points ofview. The examination of the file memorandum stated that based on a 2010 report by the Nigerian Government to the United Nations General Assembly Special Session ("the UNGASS Report"):-
15. The authors of the memorandum on file thought otherwise:-
17. At the same time, there is reason to suppose that the authors of the memorandum over-stated the position in saying that Ms. O.'s fears regarding treatment in Nigeria are unfounded. While there are probably aspects of Ms. O's life which are hidden from the Court, one cannot be quite as sanguine as the authors of the memorandum apparently were regarding any guarantee or assurance regarding the provision of anti-retroviral treatment. There is no reason to believe that Ms. O.'s financial position is anything other than precarious and her physical and (especially) her mental condition has deteriorated in the meantime. But for the fact that she received treatment in 2006, one could not be confident that an indigent middle-aged woman with no access to family and a declining cognitive capacity would be in a position to access such treatment . Dr. Giller expressed concern about Ms. O.'s "ability to travel independently and to negotiate a return to a life in Nigeria." I accept that she received treatment in Nigeria in the past, but after an interval of five years one cannot readily assume that such treatment will be made available to her again, not least given Dr. Giller's doubts about Ms. O.'s present ability to re-establish her life in Nigeria in view of her present mental condition. 18. Given the centrality of the question of whether Ms. 0. can effectively access such treatment if deported, there are substantial grounds for contending that the memorandum contains a material error of fact (cf by analogy K v. Refugee Appeals Tribunal [2011] IEHC 301). It could also be said that there are substantial grounds for contending that this reasoning does not meet the requisite Meadows standard (Meadows v. Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701). I propose therefore to grant leave to the applicant in respect of this issue. 19. Mr. Woolfson further makes the point that the analysis of the availability ofHIV services in Nigeria and the question of stigma and discrimination against HIV sufferers contained in the examination of the file analysis is incomplete and highly selective. This point is encompassed in the grant of leave in respect of the material error of fact issue and, for the avoidance of doubt, I will also give the applicant leave to argue that the Minister relied on highly specialised reports, not otherwise generally available, the existence of which ought, as a matter of fair procedures to have been disclosed to her legal team. I should record, however, that counsel for the Minister, Mr. Conlan Smyth, disputed the specialist nature of these reports. This, however, is a matter which can be argued at the full hearing. Overlap of Constitutional and Convention Issues 21. In Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 91, [2009] 1 I.R. 635 the Supreme Court held where a litigant seeks to challenge the constitutionality of a statute and simultaneously seeks a declaration of incompatibility under s. 5(1) of the European Convention of Human Rights Act 2003, the court must ordinarily consider the constitutional issue first. For the reasons which I more fully set out in my judgment in RX v. Minister for Justice, Equality and Law Reform [2010] IEHC 446, I consider that the same principle must apply by analogy in cases where administrative action is challenged on the grounds that it breaches both constitutional rights and rights guaranteed by the European Convention of Human Rights. I accordingly propose to commence a consideration of the matters raised by this case by reference in the first instance to Article 40.3.2 of the Constitution. Article 40.3.2: The right to life and the protection of the person
24. Quite apart from the fact that prisoners are in a special category of cases since the State has implicitly assumed obligations towards them by virtue of their incarceration, Kinsella also concerned a situation where the State's actions had jeopardised his constitutional rights. In the present case, there is a serious risk that Minister's actions in deporting the applicant will serve effectively to deprive her of access to the medical care which she requires for her daily survival. No Irish court has heretofore been required squarely to consider this question in the context of the State's Article 40.3.2 obligations. 25. It is, of course, clear that the courts will not sanction the removal of a person from the State where to do so would involve a potential breach of his constitutional rights: see, e.g., Finucane v. McMahon [1990] 1 I.R. 165,226, per McCarthy J. In the same vein, Finlay Geoghegan J. said in Makumbi v. Minister for Justice, High Court, 15th November 2006 held that a transfer order could not be made "where the respect or protection of the right to life of a person to whom it relates so requires." Likewise in OO. v. Minister for Justice [2004] 4 I.R. 426, 432 Gilligan J. observed:-
27. Before considering these questions, it may be useful at this juncture to observe that the present case is obviously very different from Agbonlahor v. Minister for Justice [2007] IEHC 309, [2007] 4 IR 309. In Agbonlahor the applicants were a mother and her two young twin children from Nigeria who had sought to resist their deportation on the ground that the medical condition of the twins was such that their deportation would infringe their rights to private life as protected by Article 8 ECHR. One of the twins presented on the autistic spectrum and the other had an attention deficit hyperactivity disorder along with an intellectual disability. It was contended that Nigeria had no treatment facilities for such children and that they would be socially isolated. 28. Feeney J. rejected the argument that the present case came within the parameters of the well known decision of the European Court of Human Rights in D. v. United Kingdom (1997) 24 EHRR 423. In that case, the Court had held that the deportation of an asylum seeker who was in the last throes of a terminal AIDS-related illness to St. Kitts would have violated Article 3 ECHR in circumstances where that applicant faced the prospect of death with almost no medical facilities or family members and not even the guarantee of a hospital bed. Feeney J. rejected that argument ([2007] 41.R. 309 at 321):-
30. Clark J. concluded that:-
31. While accepting that the issue is one of relative novelty, I am of the view that the applicant has raised substantial grounds for contending that her rights under Article 40.3.2 of the Constitution will be breached if deported to Nigeria where, possibly deprived of access to life saving treatment and being indigent, poor and bereft of family and friends while at the same time suffering from impaired mental cognition, she will be condemned to face decline and death over months in circumstances where her human dignity cannot be maintained This litany of suffering would be made all the worse if, as Mr. Woolfson contends, persons who have succumbed to this illness are subject to pervasive discrimination and social isolation in Nigeria. After all, one of the objectives of the Constitution as declared in the Preamble is that "the dignity and freedom of the individual may be assured" and clearly the State's obligations under Article 40.3.2 must be construed in the light of that objective: see Garvey v. Ireland [1981] I.R. 75 at 99-100, per Henchy J. 32. It is true, of course, that if Article 40.3.2 were to be construed as placing such a duty on the State this would have serious public policy implications for both immigration policy and the administration of health care, along with the kind of separation of powers issues canvassed in the Supreme Court judgments in TD. The very fact, however, that the issues of access to life saving health care and the protection of life and person as required by Article 40.3.2 have never previously been comprehensively examined at constitutional level in itself demonstrates that Ms. O. has raised substantial issues which merit adjudication at a full hearing. Article 3 ECHR and Article 8 ECHR 34. It may be useful here to say something further about D. v. United Kingdom. The applicant was a national of St Kitts, who had been convicted and sentenced in the United Kingdom in connection with a drugs offence. When he had completed his sentence of imprisonment the United Kingdom authorities sought to deport him to St Kitts. He was, however, by that time in the advanced stages of AIDS. By the time the case came before the European Court of Human Rights he had suffered severe and irreparable damage to his immune system and his prognosis was very poor; it appeared that he was close to death. He had been counselled about dying and had formed bonds with his carers. There was evidence before the Court that the medical facilities in St Kitts did not have the capacity to provide the applicant with the treatment he needed and he had no family home or close relatives able to look after him there. I pause here to draw attention to the fact that Ms. O. would appear to have no family home in Nigeria and, as I have already observed, no family members or friends in that country either. 35. The Court held (at paragraphs 53-54) that:-
... [T]he respondent State has assumed responsibility for treating the applicant's condition since August 1994. He has become reliant on the medical and palliative care which he is at present receiving and is no doubt psychologically prepared for death in an environment which is both familiar and compassionate. Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3, his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment. 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 in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State during their stay in prison. However, in the very exceptional circumstances of this case and given the compelling humanitarian considerations at stake, it must be concluded that the implementation of the decision to remove the applicant would be a violation of Article 3."
38. That case may be contrasted with a decision of the European Court in S.C. C. v. Sweden (dec.), no. 46553/99, 15 February 2000. This case involved a Zambian national who had been refused leave to enter Sweden, where she had previously lived and where she had been treated for HIV. The applicant submitted medical evidence to the effect that life-prolonging treatment would have a much better success rate if she was given the chance to continue it in Sweden since the standard of care and monitoring possibilities in Zambia were reduced in comparison. The Court declared the application inadmissible, on the basis that, according to a report from the Swedish Embassy in Zambia, the same type of AIDS treatment was available there, although at considerable cost, and that the applicant's children as well as other family members lived there. Taking into account the applicant's present state of health, her removal to Zambia would not amount to treatment proscribed by Article 3. 39. This was followed by Bensaid v. United Kingdom [2001] ECHR 82, (2001) 33 EHRR 10. In that case the applicant, an Algerian national, was a schizophrenic who had been treated for this illness for some years in the United Kingdom. The Court unanimously rejected the complaint under Article 3 and held as follows (at paras. 36 - 40):-
The difficulties in obtaining medication and the stress inherent in returning to that part of Algeria, where there is violence and active terrorism, would, according to the applicant, seriously endanger his health. Deterioration in his already existing mental illness could involve relapse into hallucinations and psychotic delusions involving self-harm and harm to others, as well as restrictions in social functioning (such as withdrawal and lack of motivation). The Court considers that the suffering associated with such a relapse could, in principle, fall within the scope of Article 3. The Court observes, however, that the applicant faces the risk of relapse even if he stays in the United Kingdom as his illness is long term and requires constant management. Removal will arguably increase the risk, as will the differences in available personal support and accessibility of treatment. The applicant has argued, in particular, that other drugs are less likely to be of benefit to his condition, and also that the option of becoming an inpatient should be a last resort. Nonetheless, medical treatment is available to the applicant in Algeria. The fact that the applicant's circumstances in Algeria would be less favourable than those enjoyed by him in the United Kingdom is not decisive from the point of view of Article 3 of the Convention. The Court finds that the risk that the applicant would suffer a deterioration in his condition if he were returned to Algeria and that, if he did, he would not receive adequate support or care is to a large extent speculative. The arguments concerning the attitude of his family as devout Muslims, the difficulty of travelling to Blida and the effects on his health of these factors are also speculative. The information provided by the parties does not indicate that travel to the hospital is effectively prevented by the situation in the region. The applicant is not himself a likely target of terrorist activity. Even if his family does not have a car, this does not exclude the possibility of other arrangements being made. The Court accepts the seriousness of the applicant's medical condition. Having regard, however, to the high threshold set by Article 3, particularly where the case does not concern the direct responsibility of the Contracting State for the infliction of harm, the Court does not find that there is a sufficiently real risk that the applicant's removal in these circumstances would be contrary to the standards of Article 3. The case does not disclose the exceptional circumstances of D. v. the United Kingdom.....where the applicant was in the final stages of a terminal illness, Aids, and had no prospect of medical care or family support on expulsion to St Kitts."
42. Ms. N. then petitioned the Strasbourg Court. Here the Court summarised the relevant principles to be applied:-
The Court does not exclude that there may be other very exceptional cases where the humanitarian considerations are equally compelling. However, it considers that it should maintain the high threshold set in D. v. United Kingdom and applied in its subsequent case-law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-State bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country."
Finally, the Court observes that, although the present application, in common with most of those referred to above, is concerned with the expulsion of a person with an HIV and AIDS-related condition, the same principles must apply in relation to the expulsion of any person afflicted with any serious, naturally occurring physical or mental illness which may cause suffering, pain and reduced life expectancy and require specialised medical treatment which may not be so readily available in the applicant's country of origin or which may be available only at substantial cost."
The United Kingdom authorities have provided the applicant with medical and social assistance at public expense during the nine-year period it has taken for her asylum application and claims under Articles 3 and 8 of the Convention to be determined by the domestic courts and this Court. However, this does not in itself entail a duty on the part of the respondent State to continue so to provide for her. The Court accepts that the quality of the applicant's life, and her life expectancy, would be affected if she were returned to Uganda. The applicant is not, however, at the present time critically ill. The rapidity of the deterioration which she would suffer and the extent to which she would be able to obtain access to medical treatment, support and care, including help from relatives, must involve a certain degree of speculation, particularly in view of the constantly evolving situation as regards the treatment of HIV and AIDS worldwide. In the Court's view, the applicant's case cannot be distinguished from [cases such as Ndandgoya]. It does not disclose very exceptional circumstances, such as in D. v. United Kingdom, and the implementation of the decision to remove the applicant to Uganda would not give rise to a violation of Article 3 of the Convention." 46. Given that there was no indication in N. that BB was not correctly decided, it seems to me that for these reasons Ms. 0. has established substantial grounds in relation to the ECHR grounds as well as the constitutional grounds. In other words, there are substantial grounds for contending that her factual circumstances are such as that N. can be distinguished and that her case is governed by the decision of the Commission in BB. Conclusions
(ii) That her rights under Article 40.3.2 of the Constitution will be breached if deported to Nigeria where, possibly deprived of access to life saving treatment, indigent, poor and bereft of family and friends and suffering from impaired mental cognition, she will be condemned to face a decline and death over months in circumstances where her human dignity cannot be maintained. (iii) That her rights under Article 3 ECHR and Article 8 ECHR may be similarly breached, having regard in particular to the Commission's decision in BB. v. France. |
