GB - KK & Ors v Secretary of State for the Home Department

J U D G M E N T

LORD JUSTICE MAURICE KAY: These six renewed applications for permission to appeal all relate to what are sometimes called "health cases" in the context of Article 3 and Article 8 of the ECHR. All six applicants suffer from grave medical conditions which are being effectively treated in this country. On the evidence I think five of them would be at risk of a very early death if returned to their home countries; in the sixth case, the evidence is less certain and suggests a slightly longer, but not enormously longer, period.

It is well known that for some years the cases of D and of N in Strasbourg and N in the House of Lords in this country place considerable difficulties in the way of claimants who seek to resist removal on these grounds. At one level of abstraction or ramification, the one for which Ms Busch on behalf of the Secretary of State contends, the obstacles are insurmountable, at least at the level of this court, having regard to the authority of N .

However, I have indicated that I propose to grant permission to appeal in this case. I do so for a number of reasons. The first is that I accept the submissions on behalf of the applicants that there are arguable issues as to the precise scope of D and N , given the factual circumstances in which those decisions were made. They concern effectively illegal entrants who can properly be described as "health tourists". None of these six applicants falls into that category, although BA has never enjoyed lawful status in this country.

The second point is that not only are there features in the cases such as lawful residence prior to diagnosis and treatment, or long and mainly lawful residence, there is room for clarification of the criterion of exceptionality which derives from D and N . For example, virtually certain death within two weeks on return following a period of lawful and sometimes lengthy residence in this country may be susceptible to accommodation within exceptionality. It may be that Lady Hale's judgment in N permits such an approach. In any event it seems to me that there is room for a decision providing clarification.

I acknowledge that there are features in some of these cases which make them less attractive than others. I have already referred to BA's lack of lawful residence ever; in the case of KK, he is sought to be removed by reason of his recent criminal convictions, albeit outside the scope of section 32, and his anticipated period of survival upon removal is

J U D G M E N T

KK & Ors v Secretary of State for the Home Department

Areas of Law