High Court dismisses judicial review of deportation order citing reasonable ministerial evaluation of private life and medical needs.

Neutral Citation Number: [2012] IEHC 394

THE HIGH COURT

JUDICIAL REVIEW

[2010 No. 956 J.R.]

BETWEEN

M. E. O. [Nigeria]

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered the 5th day of September, 2012

1. By order of the Court (Hogan J.) of the 16th September, 2011, leave was granted to the applicant to apply for judicial review of a

deportation order (the “contested decision”) made in respect of her by the respondent on the 17th June, 2010. The application for

leave was the subject of a detailed judgment of Hogan J. of the 9th September, 2011.

The Leave Grounds.

2. In the order of the Court of the 16th September, 2011, the grounds upon which leave was granted are set out in narrative form in

three paragraphs, but as ground no. 1, appears to contain a number of subsidiary grounds it is useful to identify the different grounds

more precisely as follows:

(1) The Minister’s decision was vitiated by material error of fact, namely that the applicant’s concerns regarding access to

anti-retro viral therapy was (sic) “unfounded”.

(2) The Minister’s reasoning was deficient “in the Meadows sense”. (This is a reference to the judgment of the Supreme

Court in Meadows v. Minister for Justice [2010] 2 I.R. 701)

(3) The examination of the file in relation to the Nigerian material was highly selective.

(4) The specialised material relied upon by the Minister ought to have been disclosed to the applicant in advance in

compliance with fair procedures.

(5) The applicant’s 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.

(6) Her rights under article 3 and article 8 of the European Convention on Human Rights may be similarly breached having

regard in particular to the Commission’s decision in B.B. v. France 9 March 1998, RJD, 1998 VI, p2596.

3. The background to the application is as follows. The applicant is a national of Nigeria who arrived in the State in November 2006

and claimed asylum on the 22nd November, 2006. She was at that time 40 years of age. She claimed to have left behind her in Nigeria

three children and a husband from whom she had been separated for a considerable period.

4. She claimed to have been a business woman in Nigeria with a shop selling clothes. In 2005 a nearby pipeline exploded and her shop

was burnt down. She later got a second shop with financial assistance from business partners, but this shop too was destroyed by

fire started, she thinks, by drunken youths. She reported the fire to the police and they offered to investigate the matter if she

brought them money. As a result of the fire she was unable to repay the money she owed to her business partners and they

threatened to kill her. These alleged events had formed the basis of her claims to fear persecution and to be at risk of serious harm.

5. In a report dated the 14th December, 2006, under s. 13 of the Refugee Act 1996, the Commissioner made a negative

recommendation on the asylum application. This was appealed to the Tribunal but the negative recommendation was affirmed by a

decision of the Tribunal on the 25th May, 2007. Essentially, the Tribunal member held that the particular source of the feared

persecution namely, the threats from her business partners, was not one with a Convention nexus and did not therefore constitute

“persecution” for the purposes of s. 2 of the Act of 1996. In addition however, the Tribunal member held that there had not been any

failure on the part of Nigerian authorities to provide State protection as the claimed persecution had never been reported to the

police.

6. On the 19th July, 2007, in response to the letter under s. 3 of the Immigration Act 1999, representations for leave to remain and

an application for subsidiary protection were submitted on behalf of the applicant. The application for subsidiary protection was

refused on the 24th June, 2008.

7. On the 12th March, 2009, a deportation order in respect of the applicant was made by the respondent. An initial judicial review

application (Record No. 2009, No. 351 J.R.) was commenced but subsequently compromised and the applicant was given an

opportunity to make further representations in support of her application for leave to remain. These were duly forwarded by letters of

the 26th April, 27th April and 12th May, 2010.

8. A new deportation order was then made on the 17th June, 2010, following consideration of the additional representations. This is

the contested decision the subject of the present judicial review.

The Main Issues.

9. As indicated in the judgment of Hogan J. granting leave, the applicant’s challenge to the deportation order is essentially based

upon the humanitarian considerations raised by her medical condition and her personal circumstances. Shortly after her arrival in the

State the applicant was diagnosed as HIV positive and she has been receiving anti-retro viral (ARV) therapy and care in the State

since 2006. Apart from the particular flaws alleged under the heading of grounds (1) to (4) above, her essential claim accordingly, is

that her deportation to Nigeria in these circumstances and having regard particularly to the circumstances in which she would live in

Nigeria, is unlawful as an infringement of the various rights set out in the grounds for which leave was granted.

10. The underlying issue raised by this application, therefore, is primarily a humanitarian one. The applicant entered the State without

permission in 2006, but was then entitled to remain in accordance with s. 9 of the Refugee Act 1996, so long as her asylum

application was being processed. The applications for asylum and subsidiary protection having been definitively rejected, she now has

no legal entitlement to be present in the State by virtue of s. 5 of the Immigration Act 2004, unless the Minister grants her a

permission under s. 4 of that Act.

11. The Oireachtas has conferred a discretion on the Minister as to whether a permission is granted to any third country national to

remain in the State and as to the terms and conditions that may be attached to such a permission. (See s. 4(6) of the Act of 2004).

While the Minister has a discretion it is one which must, of course, be exercised lawfully that is to say, in accordance with the terms

of the legislation by which it is conferred and fairly, rationally and objectively having regard to the evidence and information available

to the Minister. (See East Donegal Co-Operative Livestock Mart Ltd. v Attorney General. [1970] I.R. 317).

12. It goes without saying that in reviewing the contested decision in light of the grounds advanced, the Court is not concerned with

the merits of the decision; with whether it is the decision the Court itself would have made nor with whether a better or different

decision might have been more appropriate. The Court is concerned only to judge whether the contested decision is lawful in the

sense indicated above and to satisfy itself that it is not vitiated by any material misdirection as to facts or by any manifest

unreasonableness having regard to the premise upon which it is based.

13. The substantive effect of the contested decision is to refuse the applicant’s request to be permitted to remain in the State upon

the ground of her medical condition and her need for continuing ARV treatment and, in consequence, to order her deportation to her

country of origin because she has no permission to be in the State for the purposes of s. 5 of the Act of 2004.

14. Because the relief sought from the Court is an order of certiorari quashing that decision, the effect of the relief if granted would

be to annul the deportation order and to leave to the Minister the decision as to whether a new deportation order should be made or

some alternative course adopted. It is important also to emphasise that the Court is not concerned to decide whether the applicant

has made out a humanitarian case to be granted leave to remain for the reasons advanced in her application. That decision is the

exclusive function of the Minster. The point was expressed by Fennelly J. in his judgment in Meadows v. Minister for Justice [2010] 2

I.R. 701 in this way:-

“Matters of policy are for [the Minister]. He has been assigned the responsibility of deciding how the balance is to be

struck between the rights of persons subject to being deported and the common good in maintaining the integrity of the

asylum and immigration systems. He might for example decide as the Refugee Appeals Tribunal had done in this case or

that the degree of risk to the individual was outweighed by the need to protect the integrity of the system. The

[Minister] would be entitled to take account of the entirety of the problem of which the individual person was merely one

example and the feasibility for the State of offering refuge to a large number of people from other countries.”

15. It is necessary therefore to consider first the basis upon which the applicant sought to be granted leave to remain; then to

consider the legal principles and legislative framework within which that application fell to be assessed and finally to determine the

lawfulness, adequacy and reasonableness of the Minister’s decision to refuse and to make the deportation order.

Leave to Remain Representations.

16. The representations made on behalf of the applicant for leave to remain were lengthy, detailed and supported by extensive

documentation in the form of country of origin information. They were submitted under cover of a series of letters both in opposition

to the earlier deportation proposal in 2007 and, following the compromise of the earlier judicial review, by letters of the 26th and 27th

April, 2010, and 12th May, 2010.

17. The earlier representations were submitted on the statutory form with a letter of the 19th July, 2007 and supplemented by further

representations of the 9th September and the 12th December 2008. Those representations made the basic case which has been

reiterated and supplemented since. It was submitted that

“the deportation of the applicant with her present health situation to a country where basic welfare and health facilities

are lacking would be unduly harsh and have serious implications on her health. She is a HIV patient and has been availing

of medical care in the State since she applied for asylum. . . . There are no social welfare packages in Nigeria and no free

medical service. According to her if she were to be returned to Nigeria she would die within weeks because she will not be

able to avail of medical care for financial reasons”.

Medical Evidence.

18. Central to the claim has been the opinion of Dr Samuel J. McConkey given in a letter of the 17th July, 2007, which was attached

to the letter of the 19th July, 2007. After giving the results of the tests carried out on the applicant at Beaumont Hospital when she

first presented in December 2006, the key passages in his report are as follows:-

“There were some other diseases detected on the initial two visits, however I will continue with the results of HIV

assessment which indicated on the 5th April, 2007, that the CD4 count suddenly dropped in 72 cells x 106/L the viral load

had jumped up to a very high level of 180,000 copies/ml. This would be consistent with a recent discontinuation of

effective anti-retro viral therapy. The above patient denies use of anti-retro viral therapy in the past and claims to have

just discovered about her HIV infections two weeks before her referral to our clinic when she claims she was tested for

the first time . . . Unfortunately, my assessment of the information available to me makes me very sceptical that this is

indeed the case. From a biological point of view, I find it difficult to understand how this particular patient’s infection and

the laboratory results we have found could be explained other than by her having taken highly effective anti-retro viral

therapy which was controlling her HIV replication up until November or at least early December 2006. Given that she had

been in Ireland for approximately two months from the 14th December, at her first visit to us this suggests that she had

been dispensed approximately one to two months of anti-retro viral therapy in Nigeria before coming here.”

19. Dr. McConkey then gives details of the results of other tests which he summarises:

“It appears that the calcified brain lesions represent old, possibly previously treated toxoplasma infection. It appears that

these are inactive at present and had either resolved because of correction of immuno suppression, or alternatively

represent congenital toxoplasma infection or thirdly possibly could represent treated toxoplasma infection from some years

ago”.

20. Dr McConkey says that the applicant’s response to anti-retro viral therapy has been excellent. He says that in his assessment she

has done very well with treatment of HIV:

“and this is likely to continue for the future. She is likely to need anti-retro viral treatment for the rest of her life and

without this, it is likely that she will deteriorate within a year or two to AIDS and death. This was illustrated in the decline

in the CD4 count soon after she came here which show that without control of her virus, the HIV infection rapidly causes

a severe immune suppression. I am not in a position to comment on the widespread availability of anti-retro viral

treatment in Nigeria. However, as noted above, it appears to me highly likely that this patient was regularly using

effective highly active anti-retro viral therapy before coming to Ireland and before coming to our clinic. This suggests that

in her specific situation, she was able to avail of excellent and effective treatment before her arrival here. It is unclear to

me what the source of that was and the patient has denied that this is the case. In the last three years there has been

a widespread expansion of availability of anti-retro viral therapy throughout Africa in general and in particular in Nigeria

specifically”.

He then concludes:

“I hope this information about Ms. O.’s medical care is useful in your review of her leave to remain on humanitarian

grounds which I would like to support, given that the quality of care that she can get here will almost inevitably be better

than she will get in other countries”.

21. Clearly, therefore, the evidence of Dr. McConkey is important in two respects. It establishes that the applicant has been

diagnosed as having the HIV infection , that she will be in need of effective ARV treatment for the rest of her life and that without it

her condition would deteriorate within a matter of years to AIDS and death. Secondly, however, his clear opinion was that

notwithstanding her denial, the applicant had been in receipt of effective anti-retro viral treatment for some time before leaving

Nigeria. He describes that treatment as having been both excellent and effective.

22. A further medical report was provided on the 8th April 2010, by Dr. Liam J. Lynch. This indicated a deterioration in the applicant’s

condition. Since the HIV infection diagnosis she is described as having started to behave irrationally and on investigation was found to

have cerebral toxoplasmosis as a complication of the HIV condition. She also developed peripheral neuropathy as a complication of the

HIV condition giving her ongoing lower lumbar and left leg pains. She also had ongoing headaches, pains and recurrent infections as a

result of the HIV infection. The opinion was expressed: “Her current medical status is such that requires ongoing specialist medical

support and management and therefore it would be of huge importance to her health if she does remain in Ireland as otherwise her

health and life would be severely compromised”.

23. A psychological assessment of the applicant was made by Dr. Joan Giller in April 2010. This assessment of cognitive dysfunction

gave a result which “is highly consistent with significant cognitive impairment”. Dr. Giller expressed the view: “I would be very

concerned about her ability to travel independently and to negotiate a return to a life in Nigeria”.

24. These updated medical reports formed the main basis of extensive representations made to the Minister by letter of the 27th

April, 2010. Attached to these representations were some 250 pages of documentation comprising a wide range of reports and other

material relating to the prevailing situation in Nigeria as regards the prevalence of HIV/AIDS conditions; the deficiencies in available

treatment together with material directed towards the proposition that sufferers from these conditions are socially disadvantaged, in

that they are stigmatised and discriminated against. In the representations the claim is made that the applicant’s personal position is

such that these factors are exacerbated by the fact that she has no immediate family to look to for support or protection if returned

to Nigeria. The point is made that the combination of her infection and dependence upon ARV treatment, her significant level of

cognitive impairment and her alleged absence of family support, render her exceptionally vulnerable should she be returned to Nigeria

with the consequence that her life would be threatened.

25. Apart from the differences of opinion as to whether the applicant was receiving ARV treatment in Nigeria before departure and as

to extent of the availability of such treatment should she return, it is fair to say that the general assessment of the applicant’s

medical condition and personal difficulties has not been in dispute. She is clearly in a vulnerable physical and mental condition and her

future well being, which is already limited, is clearly dependent upon her ability to continue receiving effective ARV treatment.

26. The fundamental question which this situation raises accordingly, is who is responsible in international law for the applicant:

Ireland or Nigeria? Can an individual already in poor health who enters the State illegally but with a view to making a claim for asylum

which is determined to be unfounded, impose upon the host State a liability in law to provide continuing medical treatment by reason

only of the fact that equivalent treatment in the country of origin is inferior, even grossly inferior, and the individual’s personal

circumstances are such as to leave her without immediate family support? If the applicant, on arrival in November 2006, instead of

claiming asylum had immediately sought permission to remain for the express purpose of accessing ARV treatment because it was

unavailable to her in Nigeria, could the Minister have been compelled in law to grant her an indefinite or temporary permission to

remain for that purpose? Does the legal position in that regard change because the State, for humanitarian reasons and in compliance

with its obligations under the Convention Relating to the Status of Refugees, 1951 and later obligations of the Common Asylum Policy

of the European Union, allows the asylum seeker to access remedial treatments while the asylum application is being processed?

Constitutional Protection.

27. To answer these questions it is appropriate to consider first, for the reason given by Hogan J. at para. 20 of his leave judgment of

the 9th September, 2011, the scope of the obligation of the State under Article 40.3.2 of the Constitution. The obligation there

undertaken by the State is “by its laws to protect as best it may from unjust attack and, in the case of injustice done, to vindicate

the life, person, good name and property rights of every citizen”.

28. On the assumption that the phrase “by its laws” encompasses both the making of laws and the application in practice of existing

laws, the obligation is to protect the life and person of every citizen from any attack which is unjust. It is not a general obligation to

protect the life and person of citizens in all circumstances or from any attack or injustice from any source. The obligation comes into

play where the life or person of a citizen is attacked or threatened with attack and the attack is unjust. This strongly implies that the

obligation is one to protect the citizen against wrongful acts at the hands of third parties including agents of the State itself. Two

questions therefore arise. Does the provision extend to require the State in an appropriate case to provide particular medical care to

the individual citizen because he or she suffers from a life threatening condition and without which the individual will die? If it does,

can the entitlement be invoked by a non-citizen present in the State without permission?

29. No judgment of the High Court or Supreme Court has to date held that Article 40.3.2 imposes upon the State a general obligation

to provide necessary medical treatment to a citizen who is need of such treatment in order to forestall the natural consequences of a

life threatening illness or disease. The constitutional protection obligation might well be breached where a treatment which is generally

available through the public health services of the State was denied to an individual for some arbitrary reason or on some irrational

ground. It would be a different matter to hold, however, that Article 40.3.2 imposes on the State a duty for example, to fund the

transfer of a citizen to a foreign country to avail there of a treatment for a life threatening condition which was not available within

the State. The existence of such a life threatening condition is a facet of the human condition; it is not an “unjust attack”.

30. This view of the Court that the protection from unjust attack on the life or person guaranteed by Article 40.3.2 does not extend

to impose a positive duty on the State to ensure a particular quality of life (including health) for the individual citizen is clear from the

manner in which the Courts have dealt with claims which have sought to enforce what have been called “socio-economic rights” on

the basis of Article 40.3. Thus, in O’Reilly v Limerick Corporation [1989] I.L.R.M. 181, Costello J. rejected a claim on the part of

members of the “travelling community” for damages against the State for an alleged breach of a constitutional right to be provided

with a minimum standard of living conditions. Making a distinction between commutative justice and distributive justice, Costello J.

held that the Court has jurisdiction to award damages against the State in respect of a wrong committed by an agent for which the

State is vicariously liable but no jurisdiction “in cases where the claim is for damages based on a failure to distribute adequately in the

plaintiff’s favour a proportion of the community’s wealth”.

31. In T.D. v. Minister for Education [2001] 4 I.R. 259, the Supreme Court set aside a High Court order which had directed the

defendant to take the steps necessary to build and open a number of residences for troubled children upon the ground that the Court

had no jurisdiction to intervene in policy considerations which were the proper function of the Executive. For present purposes it is

especially pertinent to note the approach to interpretation of the articles expressed by Murphy J.:-

“With the exception of Article 42 of the Constitution, under the heading ‘Education’, there are no express provisions

therein cognisable by the courts which impose an express obligation on the State to provide accommodation, medical

treatment, welfare or any other form of socio-economic benefit for any of its citizens, however needy or deserving. It is

true that the exploration of unremunerated constitutional rights in Ryan v. The Attorney General [1965] I.R. 294 has

established the existence of a constitutional right of ‘bodily integrity’. The examination of that right in The State (C.) v.

Frawley [1976] I.R. 365 and The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82 certainly

establishes that the State has an obligation in respect of the health of persons detained in prisons. However, these

authorities do not suggest the existence of any general right in the citizen to receive, or an obligation on the State to

provide medical and social services as a constitutional obligation. . . .

With the exception of the provisions dealing with education, the personal rights identified in the Constitution all lie in the

civil and political rather than the economic sphere. . . .

The absence of any express reference to accommodation, medical treatment or social welfare of any description as a

constitutional right in the Constitution as enacted, is a matter of significance.”

32. Indeed, it might also be pointed out that insofar as the Constitution addresses considerations of socio-economic policy, the

provisions are to be found in the “Directive Principles of Social Policy” in Article 45 which are expressly “not cognisable by any Court”.

It is to be noted that in Article 45.4.1 recognition is given to the needs of “the weaker sections of the community” including “the

infirm”.

33. For these reasons, the Court is satisfied that no provision of the Constitution imposes a positive obligation on the State to provide

or to continue to provide any particular type of medical treatment to an individual citizen as a matter of right based upon the

protection afforded by Article 40.3.2.

34. If that is the position in constitutional law so far as concerns citizens, it must necessarily also be true of non-citizens who happen

to the present in the State without permission. Firstly, it is well settled that non-national parents of Irish citizen children cannot

assert any constitutional right to reside in the State (See Fajujonu v. Minister for Justice [1990] 2 I.R. 151). The distinct position of

citizens and non-citizens so far as the protections afforded by Article 40 of the Constitution are concerned was averred to by Keane

C.J. in In the Matter of Article 26 of the Constitution and in the matter of ss.5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999

[2000] 2 I.R. 360:

“…A person who is not entitled to be in the State cannot enjoy constitutional rights which are coextensive with the

constitutional rights of citizens and persons lawfully residing in the State. There would however, be a constitutional

obligation to uphold the human rights of the person affected which are recognised, expressly or by implication, by the

Constitution, although they are not coextensive with the citizen's constitutional rights.”

35. In the context of the proposed deportation of non-citizens it is also necessary to distinguish between those cases where the

impediment to deportation is the exposure of the prospective deportee to probable risk to life or person at the hands of forces or

individuals in the country of destination. In the judgment of the Court, if a third country national illegally present in the State faces a

genuine risk of a threat to life at the hands of a foreign state, of state actors or third parties in the foreign state, the obligation of

this State so far as protection of the individual is concerned is that which arises under s. 5 of the Refugee Act 1996; s. 4 of the

Criminal Justice (UN Convention against Torture) Act 2000 and article 3 of the European Convention on Human Rights. It does not

arise under Article 40.3.2 of the Constitution. Thus, in the judgment of the Court, the response to the query raised by Hogan J. at

para. 25 of the leave judgment is that Article 40.3.2 obliges the State to protect the life and person of citizens from unjust attack in

the sense of wrongful conduct at the hands of third parties. It does not oblige the State to undertake the positive task of protecting

citizens, and, a fortiori non-citizens, from the natural consequences of illness or disease. In the absence of some circumstance of

direct or vicarious responsibility on the part of the State for such a condition or person, Article 40.3.2 does not impose upon the

State a positive obligation to ensure a particular level of health treatment to individuals (whether citizens or not,) who suffer from a

life threatening condition. As held by the Supreme Court in T.D. v. Minister for Education [2001] 4 I.R. 259,, the extent to which the

State accepts responsibility for the provision of curative health services is a matter of legislative and political choice for the

Oireachtas and the Executive.

36. As the Court has pointed out above, the central issue in this case is the humanitarian one under the Acts of 1999 and 2004, and

that is why it falls to the respondent and not to the courts, to decide whether in the particular circumstances of this case the

applicant’s request for continuing access to ARV treatment within the State should be accepted. The only function of the Court is to

determine whether the decision made in that regard in this case has been lawfully made.

The Convention Protection.

37. So far as concerns the scope of the protection obligation undertaken by the State by virtue of articles 3 and 8 of the European

Court on Human Rights, the position is not, in the view of the Court, materially different. The case-law of the Strasbourg Court

indicates that there is no obligation upon the Contracting States to provide third country nationals with access to medical treatment

and to refrain from expelling illegal entrants for that purpose. Nevertheless, as the applicant has argued, the right to respect for life

under article 3 may nevertheless be invoked by a deportee in exceptional circumstances where the very transportation of the

deportee to the country of origin or its immediate consequence may itself pose a clear threat to life.

Article 3 of the Convention

38. Article 3 of the European Convention on Human Rights provides:-

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

39. It is submitted that the present case is an instance in which the deportation of the applicant to Nigeria would constitute inhuman

or degrading treatment by virtue of the advanced and serious nature of her medical condition, the alleged inability to obtain access to

continuation of the treatment she has received in the State and her inability to cope with conditions in Nigeria due to her cognitive

impairment and alleged lack of family support.

40. This particular predicament has been considered by the European Court of Human Rights in a number of analogous cases with, it

must be said, differing outcomes. The cases upon which considerable reliance has been placed in argument on behalf of the applicant

are that of D. v. United Kingdom, (1997) 24 E.H.R.R. 423), and as indicated in Ground no. 5 above, B.B. v France, 9 March 1998, RJD,

1998 VI, p2596 a report of the former Commission of Human Rights on 9 March 1998. The D. v. United Kingdom case has subsequently

been the subject of judicial criticism notably in the United Kingdom by the House of Lords in N. v. Secretary of State for the Home

Department [2005] 2 A.C. 296.

D. v. United Kingdom.

41. The applicant in D. v. United Kingdom (1997) 24 E.H.R.R. 423 had come from the island of St. Kitts to the United Kingdom where

he was refused entry because he was in possession of cocaine at the airport. He was subsequently convicted and sentenced to six

years imprisonment. While in prison he was diagnosed as suffering from AIDS. Shortly before his release, his deportation to St. Kitts

was ordered. He sought leave to remain on humanitarian grounds on the basis that his removal would involve the loss of vital medical

treatment and shorten his life expectancy. The application was refused and judicial review proceedings were taken but without

success. He applied to the Strasbourg Court. The evidence presented to that Court was that he was in the advanced stages of his

illness and suffering from a number of additional serious complications. Medical reports assessed his prognosis as extremely poor and

advised that his life expectancy would be substantially shortened if returned to St. Kitts where no medication was available. He had

suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of infections and the

development of tumours. Specifically, his prognosis was limited to eight to twelve months on the therapy he was then receiving in the

United Kingdom and to half of that if the medical treatment was withdrawn. Shortly before the hearing took place in Strasbourg, the

applicant’s condition had deteriorated; he had been transferred to hospital and it was said that his life seemed to be drawing to a

close.

42. The evidence also indicated that St. Kitts did not have the capacity to provide the medical treatment the applicant would require

and that the applicant had no family home or relations in St. Kitts other than a cousin. (See paras.16-18 of the judgment.)

43. The Strasbourg Court found that to remove D. to St. Kitts would violate article 3 of the European Convention on Human Rights. In

doing so the Court reaffirmed the established position that the Contracting States have the right to control entry, residence and

expulsion of aliens. In exercising that right, however, they have an obligation to consider article 3 which prohibits in absolute terms

torture and inhuman or degrading treatment. This guarantee applies irrespective of the conduct of the individual concerned.

44. In explaining its approach to the interpretation of article 3 of the European Convention on Human Rights the Court first noted that

hitherto it had been taken to be concerned with situations where the alleged maltreatment emanated from intentionally inflicted acts

by public authorities in the country of destination. It held that this did not however prevent it from considering the application of

article 3 in other contexts such as those where the source of risk of prohibited treatment stems from facts which might not engage

the responsibility of public authorities or which did not in themselves infringe article 3. The issue, accordingly, was whether the

removal of the applicant would be contrary to article 3 “in view of his present medical condition”. The Court noted the advanced

stage and terminal and incurable nature of his illness and the recent deterioration. It acknowledged that his limited quality of life was

due to the availability of sophisticated treatment and medication in the UK. It also noted that withdrawal of such treatment would

have dramatic consequences for him and that his removal would hasten his death. The Court concluded:-

“In view of these exceptional circumstances and bearing in mind the critical stage now reached in the applicant’s fatal

illness, the implementation of the decision to remove him to St. Kitts would amount to inhuman treatment by the

respondent state in violation of Article 3.” (Emphasis added).

45. It is also pertinent to note that the Strasbourg Court took account of the fact that the UK had assumed responsibility for treating

the applicant since the diagnosis of his condition and that he had become reliant on the medical care he was receiving. It said:-

“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”.

The Court also stated that these considerations were wider in scope than the question of whether or not he was fit to travel back to

St. Kitts. Aliens who have served prison sentences and are subject to expulsion cannot in principle claim any entitlement to remain in

order to continue to benefit from medical, social or other forms of assistance provided by the expelling state while they were in

prison. It reiterated that the case involved “very exceptional circumstances and compelling humanitarian considerations”. (Emphasis

added).

46. Counsel on behalf of the applicant in the present case urges that the situation of the applicant is closely, if not fully, analogous

to that of the applicant in the D. v. United Kingdom (1997) 24 E.H.R.R. 423 case. In the judgment of the Court it is nevertheless

important to bear in mind the quite exceptional circumstance upon which that application of article 3 of the European Convention on

Human Rights was clearly based. The applicant in the case was already on the verge of certain death and his condition was already

terminal. He had become dependent not so much for survival as much as for palliative treatment upon the care he had received in

prison in the United Kingdom. Because of the absence of such care facilities in St. Kitts the very transfer of the applicant was judged

to have been such as would have exposed him unjustifiably to a more distressing death than he would inevitably face in the United

Kingdom. In the view of this Court, it was that acceleration and elevation of the level of distress in his inevitable death that is the

rationale of the finding of exposure to inhuman treatment in D v. United Kingdom.

B.B. v. France.

47. The case of B.B. v. France 9 March 1998, RJD, 1998 VI, p2596 is an analogous case which was settled and struck out of the

Strasbourg Court’s list following the report of the Commission of Human Rights and an undertaking on the part of the French

Government not to deport the applicant. The Commission in its report of 9 March 1998 had found that the deportation would amount

to a violation of article 3 of the European Convention on Human Rights in circumstances where the applicant was suffering from

HIV/AIDS and had served a period of imprisonment during which he had received medical treatment which had stabilised the illness.

His condition was not terminal but required regular hospital visits. It was established that deportation to the Democratic Republic of

Congo would deprive him of access to the necessary drugs. The Commission did not explicitly state that it considered the

circumstances to be exceptional or analogous with those of the applicant in D. v. United Kingdom (1997) 24 E.H.R.R. 423 but held:

“The Commission considers that exposing a person to a real and substantial risk to his health which is so serious as to

amount to a violation of Article 3 on account of other factors in the receiving country, such as the lack of medical care

and services, as well as social and environmental factors, are capable of engaging the responsibility of the State intending

to expel the person . . .”

48. As mentioned, analogous situations have been considered in a number of subsequent judgments of the Strasbourg Court, but in no

other case has that Court identified an “exceptional circumstance” amounting to a violation of Article 3 of the European Convention

on Human Rights by reason of the deportation of an applicant suffering from serious illness and in need of continuing medical

treatment. (See for example the following cases: Karara v. Finland (No. 40900/98 of 29 May 1998); M.M. v. Switzerland (No.

43348/98 of 14 September 1998); Tatete v. Switzerland (No. 41874/98 of 6 July 2000); S.C.C. v. Sweden (No. 46553/99 of 15

February 2000); Ndangoya v. Sweden (No.17868/03 of 22 June 2004); Amegnigan v. The Netherlands (No. 25629/04 of 25 November

2004) and Bensaid v. U.K. (2001) 33 E.H.R.R. 205).

49. As already mentioned, the rationale of the judgment in D. v. United Kingdom (1997) 24 E.H.R.R. 423 received detailed

consideration by the House of Lords in the case of N. v. Secretary of State for the Home Department [2005] 2 A.C. 296 and its

invitation to the Strasbourg Court to clarify the concept of “exceptional circumstances” was responded to by the Strasbourg Court in

its judgment of 27th May, 2008, in N. v. The United Kingdom (2008) 47 E.H.R.R. 39.

50. The Grand Chamber of the Strasbourg Court was divided as to its response and as to whether the case in question was

distinguishable from D. v. United Kingdom (1997) 24 E.H.R.R. 423, with three members of the Grand Chamber delivering a dissenting

opinion. In explaining the court’s approach to the question of “exceptional circumstances” the majority first recalled the general

principles regarding article 3 in expulsion cases:

(a) According to constant case law, ill treatment must attain a minimum level of severity if it is to fall within the scope of

article 3. The assessment of this minimum level is relative and depends on all the circumstances of the case including the

duration of the treatment, its physical and mental effects and in some cases, the sex, age and state of health of the

victim. (para. 29)

(b) In the case law of the Strasbourg Court and in international law it is well established that, subject to treaty

obligations, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion

may give rise to an issue under article 3 and hence engage the responsibility of a Contracting State under the Convention

where substantial grounds are shown for believing that the person concerned, if deported, faces a real risk of being

subject to treatment contrary to article 3 and in that event the Article implies an obligation not to deport the person in

question to that country. (para. 30)

(c) Article 3 applies principally in order to prevent deportation or expulsion where the risk of ill treatment in the receiving

country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the

authorities are unable to afford the applicant appropriate protection. ( para. 31)

51. The majority judgment then reviews the case law of the court as regards the application of article 3 to expulsions of persons who

are seriously ill and points out that since the judgment in D. v. United Kingdom (1997) 24 E.H.R.R. 423, it has never found the

proposed removal of an alien from a Contracting State to give rise to a violation of that article on grounds of ill-health. (para. 34).

The court explains the distinguishing features of several of the cases already noted in para. 49 above. Thus, in S.C.C. v. Sweden (No.

46553/99 of 15 February 2000), the application had been declared inadmissible because, according to a report from the Swedish

Embassy in Zambia, the same type of AIDS treatment was available there as in Sweden and the applicant’s children as well as other

family members lived in Zambia. Taking into account the applicant’s present state of health, a removal to Zambia was found not to

involve treatment prohibited by article 3.

52. The Bensaid v. U.K. (2001) 33 E.H.R.R. 205 case concerned an Algerian national who was schizophrenic and had been receiving

treatment for some years in the United Kingdom. There the court found that the applicant faced a risk of relapse even if he stayed in

the United Kingdom and while his removal to Algeria would increase that risk, the fact that his circumstances in Algeria would be less

favourable than those in the UK was not decisive from the point of view of article 3. It said:

“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.”

53. The Ndangoya v. Sweden (No. 17868/03 of 22 June 2004) case was one in which a Tanzanian national had been receiving ARV

medication in Sweden which had been successful in reducing HIV levels to a point where they were no longer detectable. While it was

said that the prospects of his receiving similar treatment in Tanzania were very slim and the interruption could bring about a rapid

deterioration of the immune system with the development of AIDS within one or two years and death within three or four, the

application was declared inadmissible upon the grounds that the applicant’s illness had not reached an advanced and terminal stage

and adequate treatment was to be had in Tanzania albeit at considerable cost. (para. 40).

54. A similar conclusion was reached in Amegnigan v. The Netherlands (No. 25629/04 of 25 November 2004) where the applicant had

been receiving ARV treatment in the Netherlands and faced a similar risk of deterioration if the therapy was interrupted. The

application was declared manifestly ill-founded on the ground that the applicant had not reached the stage of full blown AIDS and

was not suffering from any HIV-related illness.

55. The majority judgment then summarised the principles to be drawn from that case law and the essential points can be

paraphrased as follows:

(a) Aliens who 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 or services. (para. 42)

(b) The fact that an applicant’s circumstances including life expectancy would be significantly reduced by removal from

the Contracting State is not sufficient in itself to give rise to breach of article 3. (para. 42)

(c) The D. v. United Kingdom (1997) 24 E.H.R.R. 423 case was very exceptional in that the applicant was critically ill and

close to death and could not be guaranteed any nursing or medical care in his country of origin and had no family there

willing or able to care for him or to provide him with a basic level of food, shelter or social support. (para. 42)

(d) The court did not exclude that other very exceptional cases with compelling humanitarian considerations would arise

and considered that it should maintain the high threshold set in the D. v United Kingdom case which it regarded 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 from the naturally occurring illness and the lack of sufficient

resources to deal with it in the receiving country. (para. 43)

(e) The Convention is essentially directed at the protection of civil and political rights although many have implications of

a social or economic nature. Inherent in the Convention is a search for a fair balance between the demands of the general

interest of the community and the requirements of the protection of the individual’s fundamental rights. (para. 44)

(f) While it is necessary given the fundamental importance of article 3 in the Convention, for the court to retain a degree

of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the Contracting State

to alleviate such disparities through the provision of free and unlimited healthcare to all aliens without a right to stay

within its jurisdiction. A finding to the contrary would place too great a burden on the contracting States. (para. 44)

56. The majority judgment then applies the principles to N. v. The United Kingdom (2008) 47 E.H.R.R. 39 and notes that the

applicant’s claim under article 3 was based solely on her serious medical condition and the lack of sufficient treatment for it in

Uganda. The evidence indicated that as a result of the high level of treatment which the applicant had received in the United

Kingdom, her medical condition was by then stable. She was fit to travel and would remain fit so long as she continued to receive

basic treatment. Without it, however, her condition would rapidly deteriorate and she would face discomfort, pain and death within a

few years. The court concluded:-

“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.”

57. The court expressed the view that the case could not be distinguished from those considered earlier in which the article 3 claim

had been rejected and did not, accordingly, disclose “very exceptional circumstances such as in [the] D. v. United Kingdom ” case.

(The court also expressed the view that the claim did not raise any separate issue under article 8 of the Convention and it did not

examine that aspect of the complaint).

58. As already mentioned, the inherent difficulty and delicate balance in this issue is evident from the fact that three of the members

of the Grand Chamber gave a dissenting opinion in which they characterised the approach of the Commission in the case of B.B. v.

France 9 March 1998, RJD, 1998 VI, p2596 as “humane but reasonable” and the view of the majority of the Grand Chamber as

constituting “a clear setback”. The dissenting members of the Grand Chamber were not convinced that the facts of N. v. The United

Kingdom (2008) 47 E.H.R.R. 39 were so different as to call for a different solution from that pronounced in D. v. United Kingdom

(1997) 24 E.H.R.R. 423. They expressed the view that the court should have found that there was a potential violation of article 3

precisely because “there are substantial grounds to believe that the applicant faces a real risk of prohibited treatment in the country

of proposed removal”. They said:-

“There is no doubt that in the event of removal to Uganda, the applicant will face an early death after a period of acute

physical and mental suffering. In this case we are satisfied of the existence of such extreme facts with equally compelling

humanitarian considerations. After all, the highest judicial authorities in the United Kingdom were almost unanimous in

holding that the applicant, if returned to Uganda would have to face an early death. The expelling State’s responsibility,

because substantial grounds are thus shown for believing that the applicant almost certainly faces a risk of prohibited

treatment in Uganda, is engaged.”

They would have held that distinguishing that case from D. v. United Kingdom was misconceived.

59. Finally, it is useful to note that the minority members of the Grand Chamber also criticised the court for declining to examine the

complaint under Article 8 of the Convention. They said that the court should:

“in our opinion, have examined closely and carefully the situation and of her illness under Article 8 of the Convention,

which guarantees, in particular, a person’s right to physical and psychological integrity. Faced with the situation of a

person who will, without doubt, be sent to certain death, we think that the court could neither legally nor morally confine

itself to saying ‘[No] separate question arises under Article 8 of the Convention’ ”.

The dissenting members did not however go on to state whether they considered that a violation of article 8 had been made out.

60. Having regard to this review of the Strasbourg case law, it seems to this Court that in its application to expulsion cases, it

remains the primary function of article 3 to provide protection against threat to life or person from intentionally inflicted acts by public

authorities in the country of destination or by non-state actors from whom the public authorities are unable or unwilling to provide

protection. This does not however exclude the article being relied upon to provide protection where the threat to life takes the form

of exposure to inhuman treatment resulting from the absence of necessary treatment for an existing and life threatening illness which

has reached a critical stage and which is irreversible if currently provided treatment is withdrawn. It seems to this Court that the

essential elements which determine whether or not a violation of article 3 of the Convention is potentially raised by a proposal to

deport a third country national who is illegally present in a Contracting State and has there been receiving treatment for a life-

threatening condition includes at least the following:-

(i) First and foremost, the current state and seriousness of the person’s medical condition; the prognosis as to its future

evolution with and without the continuation of that treatment;

(ii) Secondly, the practical consequences for the person’s health of removal to the country of origin including

consequences of interruption of the treatment and the limited availability or non-availability of adequate treatment in the

country of origin;

(iii) the personal circumstances of the individual including age, sex, family and the conditions likely to be faced in the

country of origin;

(iv) the particular context in which the person has received treatment in the host State including the length of time and

whether the person’s presence in the State was originally lawful, or for the purpose of claiming asylum;

(v) whether the diagnosis of the medical condition predated the person’s arrival in the host State;

(vi) whether the individual is physically fit to be deported and not likely to suffer a material worsening of the condition as

a result of the transportation itself; and

(vii) whether any anticipated deterioration in the condition is likely to occur whether or not a deportation takes place.

61. It is in light of these principles of Constitutional and Convention case law that it falls to the Court to consider the lawfulness of

the respondent’s refusal of humanitarian leave to remain to the applicant in the light of the grounds for which leave was granted. (To

the extent that it is distinct, the protection afforded by article 8 is considered below at paras. 96 et seq.).

The Examination of the File Memorandum.

62. The reasons for the respondent’s decision to refuse humanitarian leave to remain and to make the deportation order are, as usual,

set out in the memorandum entitled “Examination of File under s. 3 of the Immigration Act, as amended” (“the memorandum”) which

was furnished to the applicant with the deportation order. It follows the standard form in which the various headings of matters

required to be considered under s. 3(6) of the Act of 1999, s. 5 of the Refugee Act 1996, s. 4 of the Criminal Justice (UN Convention

against Torture) Act 2000, and articles 3 and 8 of the European Convention on Human Rights, are addressed in sequence. Under each

heading, the representations made are evaluated by reference to the relevant legal provisions and principles and, where appropriate,

extracts from reports, papers and other documentation dealing with prevailing conditions in Nigeria pertinent to the issues are cited.

The memorandum is compiled within the Repatriation Unit by an executive officer and then passed upwards through the hierarchy of

that Unit for approval within the Department by a higher executive officer, an assistant principal, the Secretary of the Department

and is ultimately stamped “Approved by the Minister”. It must be said that in the light of the Court’s frequent perusal of these

memoranda for the purpose of judicial review of equivalent cases in the Asylum List, this particular memorandum is, on the face of it,

extensive, thorough and has clearly been the subject of careful consideration and analysis. Those qualities do not, of course,

guarantee that it is therefore immune from successful challenge by way of judicial review.

63. Having regard to the grounds for which leave was granted, parts of the memorandum which are particularly relevant are those

evaluating “Humanitarian Considerations”; the prohibition of refoulement in s. 5 of the Act of 1996; and the consideration given to

article 3 and Article 8 of the European Convention on Human Rights. As the various headings mentioned above are addressed

separately there is a degree of repetition in the material examined and the reasons given. Nevertheless, it is abundantly clear that the

authors of the memorandum have very squarely addressed the essential elements of the claim made in the representations namely,

the medical evidence as to the applicant’s vulnerable health condition; the prognosis as to its future course; the risks posed by

interruption of ARV treatment by deportation, and the claim that continuing treatment would be unavailable to her in Nigeria.

64. Thus, under the heading of “Humanitarian Considerations” and the consideration of the prohibition of refoulement, the medical

reports of Dr McConkey, and Drs. Lynch and Giller are expressly quoted and that of Dr. McConkey in considerable detail. In

consideration of article 3 of the European Convention on Human Rights the representations based upon the alleged lack of family

support for the applicant in Nigeria is acknowledged and the concerns of Dr. Giller in that regard are noted. The representation based

upon the risk to the applicant of facing discrimination and stigmatisation as a result of her medical condition is also recorded.

Accordingly, insofar as the validity of the contested decision depends in part upon the degree to which it flows from its premise,

namely, from the consideration given to the representations made, the Court is satisfied that the decision could not be said to have

ignored or understated the core elements of the claim as originally made based upon the applicant’s medical condition, the non

availability of equivalent treatment in Nigeria and the risk of exposure to discrimination and stigmatisation.

65. In the judgment of the Court, the memorandum when read as a whole indicates that the central response given to the

representations made in respect of the applicant’s vulnerable medical condition and the absence of treatment in Nigeria is effectively

based upon three elements which are repeated under the various headings. The first is that the applicant, while HIV positive, has

responded well to the treatment she has received in the State and is therefore, having regard to the approach of the Convention

cases mentioned above, not now in a critical state or in any state of immediate danger to her life. The assessment of Dr. McConkey is

quoted that “she has done very well with treatment of HIV and this is likely to continue for the future”. More importantly, however,

extensive reliance is based upon the opinion expressed by Dr. McConkey that the applicant had in fact been in receipt of effective

treatment in Nigeria prior to her arrival in Ireland. This significant expert opinion is relied upon to support the conclusion reached

based upon extensive examination of country of origin information and to underpin the proposition which rejects a fundamental

assertion of the representations namely, that the applicant would not be able to access appropriate ARV treatment in Nigeria upon

repatriation.

66. Clearly, the expert opinion expressed by Dr. McConkey in his report of the 17th July, 2007 (which was, after all, submitted on the

applicant’s behalf) was evidence upon which the respondent was entitled to rely. In the affidavit grounding the affidavit for judicial

review (see para. 8) the applicant is “adamant” that she had not received ARV treatment in Nigeria and did not know before her

arrival here that she was HIV positive. She goes no further, however, in elucidating her medical history in Nigeria, nor in giving any

explanation as to how or when she believes she contracted this condition.

67. In addressing the “humanitarian considerations”, the memorandum identifies the issue as being whether “further treatment for HIV

and AIDS patients would be available to the applicant in Nigeria. It has been submitted by the applicant . . . that this treatment

would not be available to her”. That part of the memorandum then proceeds over five pages to cite country of origin information by

way of response. Some of that material might well be criticised as not being obviously relevant in that it includes citations covering

“treatment for cancer”; “treatment for tuberculosis” and “mental health”. It does however include extensive quotations from a UK

Home Office Report on Nigeria dated the 15th January, 2010, which compiles material from various sources relating to HIV/AIDS in

Nigeria. This included para. 27.06 of a citation from the US State Department Report of 2008, which recorded that there was

“widespread discrimination against persons living with HIV/AIDS which the public considered a disease resulting from

immoral behaviour. Persons living with HIV/AIDS often lost their jobs or were denied healthcare services. A public

education campaign implemented to reduce stigma and change perceptions of the disease”.

68. The memorandum identifies the question posed by the representations in these terms:

“What needs to be considered is whether treatment for HIV and AIDS patients would be available to the applicant in

Nigeria. It has been submitted by the applicant and her legal representatives that this treatment would not be available to

her if she returned to Nigeria and they have submitted country of origin information to support this”.

69. The memorandum then proceeds over some seven pages to examine country of origin information on the availability of such

treatment. This included information from the World Health Organisation 2008 Fact Sheet to the effect that 2.6 million adults and

children were living with HIV/AIDS in 2007 and that an estimated 170,000 had died due to AIDS in that year. About 215 sites were

providing ARV therapy: 198,000 patients were receiving the treatment but it was estimated that there were 750,000 in need of it.

Another report is cited indicating that 3.6 million Nigerians are believed to have HIV infection but that only 247,000 were currently

receiving treatment at the end of 2008. This is said to have fallen short of the government’s ambitious goal to provide 350,000

patients with treatment by that date. The African Journal of AIDS Research 2006 is quoted to the effect that the availability and

accessibility of medication in Nigeria was comparable to levels reported from other developing and developed countries and that “the

government of Nigeria has been providing ARV therapy to adults at subsidised rates”. Extensive quotations are given from a paper

“Preliminary investigation of adherence to ARV therapy among children in Aminu Kano Teaching Hospital, Nigeria”. This included:

“Treatment of HIV with highly active anti retro viral therapy (HAART) has resulted in declining morbidity and mortality

rates from HIV – associated diseases, but concerns regarding access and adherence are growing. The level of adherence

to ARV therapy was comparable to levels in other countries”

70. The humanitarian considerations section of the memorandum is then concluded with a statement: “Having considered the

humanitarian information on file in this case, there is nothing to suggest that (the applicant) should not be returned to Nigeria”.

71. This issue is dealt with again in the consideration of the prohibition of refoulement. The medical reports are quoted in some detail

and the view is expressed:

“Based on all the information on file, including medical reports and country of origin information it is clear that her fears of

not receiving treatment for her condition in Nigeria is (sic) unfounded. There is evidence available that the appellant had

prior treatment before she entered Ireland and as the applicant has stipulated that she travelled from Nigeria to Ireland,

this treatment must have been available to her in Nigeria. There is no reason to believe that this treatment would not be

available to her again if she was to return there. Based on the medical reports on file, she has responded well to

treatment in the past and there is no reason to believe that this would not be the case if she was being treated in Nigeria

if she returned there.”

72. The issue of risk of stigmatisation and discrimination is also addressed:

“However, there is country of origin information to indicate that this discrimination has decreased and that the Nigerian

government has introduced several programmes to reduce the social stigma that HIV/AIDS patients may have experienced

in the past. Therefore it is clear that there is protection available to the applicant if she was to experience difficulties

because of her medical condition”.

73. This is followed by further citations of country of origin information and particularly material from the website www.unaids.org

describing the extent of the HIV/AIDS problem and the steps being taken by Nigerian authorities to deal with it. The memorandum

then observes:-

“Country of origin information indicates that as a failed asylum seeker that the applicant would not face difficulties from

the authorities on her return. It has been noted that Nigeria has made great progress in addressing the HIV/AIDS

pandemic and has made great progress in reducing poverty levels. Various IOM offices in Europe, including Ireland, run

assisted voluntary return and reintegration programme which is opened to asylum seekers and provides post arrival from

IOM Missions in the country of destination. IOM in Dublin provides information in the form of country sheets on healthcare,

housing, education, employment, business opportunities, custom and transportation. In an agreement with the Swiss

Federal Council in 2003, in relation to immigration matters, Nigeria agreed to cooperate in the field of containment of

HIV/AIDS and other sexually transmitted diseases.” (IOM is the International Organisation for Immigration.)

This is then supported by material quoted from the websites of the organisations in question.

74. As already mentioned, the fundamental claim based upon the applicant’s current medical condition and the alleged non-availability

of ARV treatment in Nigeria is again addressed in the consideration of the representations under articles 3 and 8 of the European

Convention on Human Rights. Again, reliance is placed upon the opinion of Dr. McConkey that the applicant had been receiving

effective treatment in Nigeria. The observation is made:

“It should be noted that there is no cure for AIDS at the moment thus there is the possibility of any HIV patient lapsing

into AIDS and death no matter which country they are living in. It has already been outlined above in country of origin

information that medical treatment would be available to the applicant. What needs to be considered is whether this

treatment would be accessible to the applicant. According to information from a 2002 report on AIDS and HIV treatment

in Nigeria it was indicated that drugs for opportunistic infections (OI) such as toxoplasmosis are available. Recently the

WHO endorsed the use of generic based ARV and OI drugs and the Nigerian government had purchased enough generic

drugs from India at the time to run direct trials as the initial phase of a national plan for broader access to ARV.”

75. There then follows some fifteen pages of material quoted from reports on the availability of treatment in Nigeria including, in

particular, the United Nations General Assembly Special Session (UNGASS) Country Progress Report-Nigeria (March 2010). It is

relevant to point out, as did counsel for the applicant, that although this document is issued under the aegis of the UN it is in fact a

report on progress of the response to the HIV/AIDS epidemic compiled and presented by the Nigerian authorities. One of the issues

raised by the applicant is that in the context of Grounds nos. 1 and 3 parts of the contents of this report have been misunderstood

by the decision-makers in the memorandum with the result that reliance has mistakenly been placed upon figures relating to

availability of treatment which are given in the report as aspirational targets on the part of the Nigerian authorities and not the

measure of actual availability assumed by the memorandum.

76. The memorandum introduces this material with the summary:

“In a more recent update of Nigeria’s response to the HIV/AIDS epidemic there, according to a report in March 2010, one

of the government’s main priorities for 2010 and 2011 is better treatment of HIV/AIDS and related conditions. Already at

least 60% of eligible adults and 60% of children are receiving ART and it is hoped to provide at least 60% of HIV patients

with quality management of OI’s (diagnosis prophylaxis and treatment) in 2010 and 2011. The Government stated that it

provides an adequate system to manage HIV/AIDS, OI’s and sexually transmitted infections and this involves over 200,000

patients on ART. Policies have been put in place to reduce discrimination and stigmatisation of people living with

HIV/AIDS.” (This passage is the subject of the allegation of mistake of fact which is central to Grounds no. 1, 2 and 3:

see paras. 85-86 below.)

77. The conclusion to the UNGASS Report is quoted:

“The report shows the progress in the national response to the HIV epidemic in Nigeria. It was developed in collaboration

with different stakeholders such as civil society groups and line in ministries. Nigeria as a nation has shown great

commitment to achieving the goals and targets that remain in the declaration of commitment. This has been reflected in

the giant strides that have been made in the following key areas:

- Increased HIV awareness among the general population and most at risk populations.

- Increased coverage in prevention of mother to child transmission services.

- 17 states action committees out of the 36 states have been transformed to agencies leading to increased

ownership and participation.

- Provision of more centres for counselling and testing.

- Increased access to anti retro viral drugs.

- Gender mainstreaming into the HIV national response.

- Development of policy documents such as the National Strategic Framework Plan for 2010/2015.

- Scale up of ongoing national programmes.”

78. These quotations are followed in the memorandum by the conclusion:

“Based on the most recent country of origin information on HIV treatment in Nigeria it is clear that the applicant would be

able to avail of treatment there. What needs to be considered is whether her illness has reached a critical stage.

Although it has been submitted that she could lapse into AIDS which would be fatal, this has not occurred. According to

the most recent submissions she has responded well to treatment and there is no evidence that she has reached this

critical stage. (Dr. McConkey’s report) would indicate that she was receiving effective treatment in Nigeria and there is no

evidence to indicate that she would not be able to avail of this treatment again on her return to Nigeria.”

79. The memorandum then considers “the exceptional circumstance” principle of the Strasbourg case law and refers to both D. v.

United Kingdom (1997) 24 E.H.R.R. 423 and N. v. The United Kingdom (2008) 47 E.H.R.R. 39. It concludes:

“The above excerpts make it clear that Article 3 of the European Convention on Human Rights does not impose any

obligation to provide medical care on Contracting States. Having considered all of the above factors it is not accepted

that there are any exceptional circumstances in this case such that there is a sufficiently real risk that deporting (the

applicant) to Nigeria would be in breach of Article 3. The fact that the circumstances of the applicant in Nigeria may be

less favourable than those enjoyed by the applicant in Ireland does not in itself exist as exceptional circumstances.”

Conclusion on the memorandum.

80. When the memorandum is read as a whole, it is clear to the Court that the fundamental response to the claims made in the

representations is as follows. It is fully recognised that the applicant has the HIV infection; that she is in need of ARV treatment and

that without it her condition is liable to deteriorate in a manner described by Dr. McConkey. It is considered, however, that this is not

one of the exceptional cases which attracts an infringement of article 3, because (a) the applicant has responded well to treatment

and is not at present in a critical condition; and (b) based upon country of origin information and most particularly upon the fact that

the applicant is considered to have already received ARV treatment in Nigeria, it is judged that treatment would be available to her

there and that she is accordingly, not exposed to the risk that returning her to Nigeria will necessarily bring about a life threatening

deterioration in her medical condition.

81. It is necessary therefore to consider whether that response to the representations as the basis for the decision to make the

deportation order is lawful having regard to the manner in which its conclusions have been reached and the material upon which it is

based, in light of the grounds upon which leave to challenge the decision has been granted.

82. Ground No. 1: The decision is vitiated by material error of fact, namely that the applicant’s concerns regarding access to ARV

therapy were “unfounded”.

This ground derives from para. 17 of the judgement of Hogan J. granting leave where he said: “Given the centrality of the question of

whether [the applicant], 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] I.E.H.C. 301”. The judgment

there referred to is also a judgment of Hogan J. in which he reaffirmed an earlier judgment to the effect that the Court has jurisdiction

to quash an administrative decision for error of fact only where there have been serious errors of fact such that, taken cumulatively,

they amount to an error of law, or where the administrative body thereby effectively assumes a jurisdiction which it does not

otherwise have.

83. The ground thus formulated in para. 17 of the judgment of Hogan J. appears to be directed primarily at the part of the conclusion

found in the memorandum in respect of s. 5 of the Act of 1996 (Prohibition of Refoulement) at p. 12: “Based on all of the information

on file, including medical reports and country of origin reports it is clear that her fears of not receiving treatment for her condition in

Nigeria are unfounded”. In the view of the Court, it is questionable whether it is correct to characterise this conclusion as being a

finding of fact in the legal sense. Rather, it is a judgment or assessment made by the authors of the memorandum as to the objective

basis for the subjective fear expressed on behalf of the applicant having regard to the contents of the medical and country of origin

information. Whatever criticisms might be made of the treatment of country of origin information in detail, of the selectivity of the

information consulted and the conclusions which have been drawn from it, the Court is satisfied that so far as essential matters of

fact are concerned, the overall body of country of origin information both submitted on behalf of the applicant and cited in the

memorandum clearly demonstrates that, as a matter of fact, ARV therapy is actually available in Nigeria. The real issue in dispute

concerns the reality of the applicant’s prospect of getting access to treatment having regard to the available information as to

conditions in the country. In other words, has it been shown that the country of origin information taken as a whole demonstrates

that the deficiencies in the treatment facilities in Nigeria are so serious and widespread that it is inevitable or at least highly probable

that the applicant will be deprived of treatment with the consequences advised by Dr. McConkey? In that regard the present case

can clearly be distinguished from that of D. v United Kingdom (1997) 24 E.H.R.R. 423 where there was evidence that no equivalent

treatment would be available to D. on repatriation to St. Kitts. (See para 43 above)

84. The information undoubtedly indicates that in Nigeria the need for treatment materially outstrips available therapy and illustrates

the major challenges faced by Nigerian authorities in that the HIV/AIDS problem is widespread and the governmental efforts to meet

the challenge which it poses have fallen short of expressed targets notwithstanding the progress that has been made. Nevertheless,

the position remains that, as a matter of fact, very large numbers of victims do have access to treatment notwithstanding the

problems of cost and availability and, in the judgment of the Court, the Minister was entitled to take into account the clear expert

opinion that this applicant had actually availed of such treatment in Nigeria prior to her arrival in the State. This too is a factor which

distinguishes this case from that of D. v United Kingdom (1997) 24 E.H.R.R. 423. In the judgment of the Court, accordingly, this

ground has not been made out. The sentence in the memorandum from which it derives is not a finding of fact in the legal sense, but

an evaluation of the objective basis of the applicant’s expressed subjective fear as to the availability to her of treatment in Nigeria

should she return there. In effect the argument made on her behalf has been that it is wholly unreasonable to suppose that there is

any possibility of her having access to continuing treatment. The Minister’s response is that the available information indicates that

substantial numbers of infected persons have in fact obtained access to such treatment and that given that this applicant has in the

past been one of those who did so succeed, it is reasonable to expect that she will do so again. In the judgment of the Court this is a

conclusion which was reasonably open to the Minister on the basis of the country of origin information and the evidence as to the

applicant’s own personal history and medical condition.

85. As already mentioned, the argument as to mistake of fact and as to the deficiency in the treatment of country of origin

information is directed also at a specific mistake said to be made in the reliance placed on the UNGASS report. (See para. 76 above).

The figures there quoted to the effect that “Already at least 60% of adults and 60% of children are receiving ART “appear to have

been taken from part 4.4 of the Report “HIV Prevalence amongst Most at Risk Population” in which at pages 59-60 are set out a

series of “Priorities for 2010-2012”. Of these, Priority B is “Treatment of HIV/AIDS and related conditions” and the first bullet point

then listed is: “At least 60% of eligible adults and 60% of children are receiving ART based on national guidelines.” It appears clear

both from the heading to the section in question and the fact that the remaining bullet points begin “To provide at least…” and “To

implement TB/HIV …etc” that these are the targets the authorities set for themselves for that period so that there has indeed been

an error on the part of the writer of the memorandum in quoting those figures if they have been taken as being a measure of the

current actual availability of access to ARV therapy in Nigeria to those with the HIV infection. In the earlier Chapter 3 of the Report

the figures for measurement of the actual treatment position are given under the heading “Status of the Epidemic”. In Table 2 at part

3.2 the total figure for persons living with HIV/Aids is given as 2.98 million and the total number requiring ARV therapy is estimated to

be 754,375 adults and 103,080 children. In Table 3 the percentage of adults and children with advanced HIV infection receiving ARV

therapy is given as 34.4%. That figure is then given in part 3.8 as 34.2% and is commented upon to the effect that while it

represents a significant improvement coverage over the figure measured in 2007, “…Nigeria needs to work harder to reduce the 65.8%

treatment gap (those needing ART-those on treatment).”

86. In the judgment of the Court this error in misreading the ambiguously worded bullet point from Priority B in the Report does not

amount to a mistake of fact which, in the overall context of the appraisal made in the memorandum, is of such materiality as to

vitiate the decision and require that it be quashed. (See in that regard the judgment of Hogan J. in K. v Refugee Appeals Tribunal

[2011] I.E.H.C. 301 referred to at para. 82 above and the judgment of Peart J. in Da Silveira v Refugee Appeals Tribunal (Unreported,

High Court, Peart J., 9th July 2004) In this regard it is important, in the view of the Court, to bear in mind the nature of the issue

before the Minister under s. 3 of the Act of 1999. The applicant has been definitely determined not to be at risk of persecution or

serious harm if repatriated to Nigeria. She is afforded an opportunity to make representations as to why the discretion ought to be

exercised in favour of permitting her to remain temporarily on humanitarian grounds. In essence the plea made is that her

circumstances and medical condition are such that returning her to Nigeria would expose her to inhuman treatment by putting her life

at risk because the necessary treatment would be unavailable to her to prevent that outcome. The Minister is not however under an

obligation to enter into a debate on that issue or to rebut or disprove every proposition advanced on her behalf in support of the plea.

He is obliged to consider it fairly and objectively and to satisfy himself by reference to reliable and current information that the

conditions are not such as would make it probable that the outcome asserted will necessarily transpire. So far as facts were

concerned, the issue before the Minister was not the quantification of the precise percentage of actual access to treatment by those

in need of it but the more general assessment of likely prevailing conditions relating to such treatment and whether they bore out the

assertion being made namely, that there was a real likelihood that the applicant would be unable to get treatment. In the judgment of

the Court it cannot be said that the overall appraisal made in that regard in the memorandum has been significantly vitiated by the

mistaken citation of the 60% access figure having regard to the facts that ARV treatment is actually available; that the figure of 34%

represents a doubling of the level of availability in 2007 and that the applicant herself was considered to be one of those who had

actually received treatment before leaving Nigeria.

87. The reliance placed on the UNGASS report has also been criticised by the applicant on the basis that, as a report from the

Nigerian Government it cannot be taken to be objective. Although no particular content of the report has been pointed to in support

of this assertion – indeed, on the contrary, it is relied upon by the applicant as evidence of the true “accessibility gap” for ARV

treatment (see para. 85 of this judgment) - the report is a formal report to the United Nations by a member state in compliance with

its obligations to the General Assembly on foot of the UNGASS Declaration of Commitment on HIV/Aids to the Secretary General. It is

a document which draws on information from all the agencies involved in tackling the epidemic in that country (See para. 77 above).

It acknowledges the reliance of Nigerian agencies on the support of UN and international bodies in confronting its challenges. In the

absence of any specific proof of falsity or bias in the information or statistics presented by the Nigerian authorities in the report, the

Court considers that there is no basis for questioning the UNGASS Report as lacking in objectivity or as other than an up-to-date and

authoritative source of information as to current conditions in treating HIV sufferers in Nigeria and the progress made in that regard.

88. Ground No. 2: The Minister’s reasoning was deficient “in the Meadows sense”. This too appears to derive from para. 17 of the

judgment of Hogan J. immediately following the reference to the case of K. v. Refugee Appeals Tribunal [2011] I.E.H.C. 301, where he

says: “It could also be said that there are substantial grounds for contending that this reasoning does not meet the requisite

Meadows standard”. This seems to be a reference to the reasoning in the memorandum which concludes that the applicant’s fears

about the interruption of her ARV therapy in this jurisdiction and its non -availability to her in Nigeria was unfounded. It is not

immediately clear to this Court what the “requisite reasoning standard” of the Meadows v. Minister for Justice [2010] 2 I.R. 701 case

requires. In this Court’s understanding, the ratio of the majority judgment of the Supreme Court in that case is that a clear

disproportionality in the impact of an administrative decision can constitute “manifest unreasonableness” for the purposes of

administrative law and is thus to be taken as coming within the bounds of the Court’s jurisdiction to annul an administrative decision

on grounds of unreasonableness (The State (Keegan and Lysaght) v. Stardust Victims Compensation Tribunal [1986] I.R. 642). The

essential consideration in Meadows v. Minister for Justice [2010] 2 I.R. 701, it seems to the Court, was not so much the

establishment of a particular standard of reasoning, as a finding that there had been a total absence of reasoning in the sense that

the decision maker had been presented with evidence of a risk of subjection to female genital mutilation upon repatriation and had

rejected the representation with a simple statement that “refoulement was not found to be an issue…”. Whatever other criticisms

may be made of the details of assessment in the contested decision in the present case, it cannot credibly be said that there is

anything in the nature of a deficiency in the sense of the non-existence of any intelligible explanation as to why the representations

have been rejected. As already indicated in the earlier parts of this judgment, the memorandum addresses and repeatedly revisits the

core elements of the complaint and answers them by reliance upon country of origin information and the expert evidence that the

applicant had already received effective treatment for her condition prior to departing from Nigeria. In the judgment of the Court,

therefore, there has been no deficiency in any “Meadows sense” in the manner in which the reasoning upon which the memorandum is

based has been exposed and explained.

89. Ground No. 3: The Examination of the file in relation to the Nigerian material was highly selective. It is, in a sense, true that the

consultation of country of origin information has been “selective” but that, in the view of the Court, is the inevitable consequence of

the very nature of the exercise which is required of decision-makers under s. 3 of the Act of 1999. What is really being alleged here is

that the selection of material has been “highly selective” in the pejorative sense of having been deliberately manipulated or contrived

with the view to supporting the conclusion reached in rejecting the representations and justifying the making of the deportation

order. In the judgment of the Court, this ground has not been made out. It is explicitly clear from the memorandum that the decision

makers have taken into account a very wide ranging compilation of country of origin information on the issue as to the availability of

ARV therapy in Nigeria including the material submitted with the representations on behalf of the applicant. As has already been

pointed out, the memorandum is almost 40 pages in length of which more than half is devoted to the consultation of country of origin

information. As has also already been indicated, the material includes citations confirming the incidence of widespread discrimination

against HIV/AIDS sufferers and their stigmatisation in areas of employment and healthcare; it also records the extensive gap between

the ambitions of the Nigerian authorities to tackle the huge challenges they face and the actual results achieved to date. In reality,

the arguments advanced under this heading are to the effect that there has been bad faith on the part of the decision makers in the

evaluation they have made and the representations. In the judgment of the Court, that implication is unfounded and the overall

balance struck – whatever may be said about specific flaws of detail – cannot be attributed to any premeditated manipulation of the

consulted material with a view to justifying a preordained outcome.

90. Ground No. 4: The “specialised material” relied upon by the Minister ought to have been disclosed to the applicant in advance in

compliance with fair procedures. In the judgment of the Court, this ground has not been made out either. As already pointed out

above, the fundamental responsibility of the decision maker in these cases is to determine whether, in light of the representations

made, there exists a genuine risk to the applicant of being exposed to the claimed inhuman treatment because of the conditions

prevailing in the country of repatriation if the deportation is implemented. It is therefore incumbent on the decision-makers to inform

themselves as to the prevailing social, political, economic, security or other considerations prevailing in the country of destination

which are relevant to the claims or fears expressed on behalf of the prospective deportee. Given that there is invariably some lapse of

time between the making of the representations on the one hand and the final determination of the application on the other it is

incumbent on the decision-makers to consult the most up-to-date information available as to the circumstances likely to be faced by

the deportee when implementation takes place. There are often, as the cases in the Asylum List frequently demonstrate, instances

where very significant political, military and security changes can occur in the country of destination in that interval. The regime from

which the asylum seeker has fled may change at short notice. Where country of origin information consulted by the decision-maker

discloses facts material to the very basis of the assertion of a risk of mistreatment for the purposes of s. 5 of the Act of 1996, there

may well be an obligation upon the decision maker to give notice of the material in question for the purpose of comment or rebuttal

before a decision is made. That is not the case here. Once it has been definitively determined that a prospective deportee is not at

risk of persecution or serious harm so that the representations are effectively a plea ad misericordiam to be permitted to remain on

humanitarian grounds, the function of the decision maker under s. 3 of the Act of 1999 is to be satisfied that the relevant conditions

are not such as to amount to inhuman treatment given the condition and circumstances of the deportee. The procedure for

representations under s.3 of the Act of 1999 is not an adversarial exercise in which the prospective deportee is to be taken as

proving a particular case for leave to remain and that the Minister is obliged to refrain from making an order unless that case is

disproved by him. As already described in the extract from the judgment of Fennelly J. in Meadows v. Minister for Justice [2010] 2 I.R.

701 at para. 14 above, the Minister is asked to consider a request for permission to remain in the State and once satisfied that the

circumstances are not such that the prohibition on refoulement applies, (or in a case such as the present, the possibility of

infringement of Convention rights,) he is exercising a policy discretion conferred upon him by the legislation. The addressee of a

deportation proposal has no right, as such, to be granted leave to remain but the Minister has an obligation by virtue of the

prohibition on refoulment and the protections afforded by the relevant Convention provisions to satisfy himself that a refusal to grant

leave will not infringe those provisions. Once it is apparent that the Minister has so satisfied himself by considering the

representations and that his conclusion to that effect is rational, reasonable (including reasonable in the Keegan /Meadows sense,)

and not inconsistent with information relied upon as to conditions in the country of repatriation, his decision cannot be interfered with

by judicial review.

91. The central issue in this case has been the availability of ARV therapy to HIV sufferers in Nigeria and that, as the country of origin

information indicates, is a continually evolving (and improving) situation. It is an enormous problem for the Nigerian authorities and it is

being addressed by them with the aid of a wide range of national agencies and international organisations both charitable and state

sponsored. All of the material by way of country of origin information relied upon in the memorandum is material cited from publicly

available documentation including, for the most part, material posted upon the websites of government agencies and the main

humanitarian organisations at international level including those of the United Nations and its agencies. The complaint is made that

some of the sources consulted by the Minister were available only on subscription. In the judgment of the Court that fact of itself

does not give rise to an obligation to put such material to an applicant for comment. It all depends on the content and effect of the

information in relation to the assertions made in the representations. As the respondents have pointed out, in actual fact the

subscription based material consists of two items one of which was also available on the internet (the extract from the “African

Journal of Aids” (August 2007) and an article by Petersen on access to drugs in Nigeria dating from 2002, the impact of which in the

analysis was clearly marginal and remote. Furthermore, all of it appears to pre-date the end of April 2010 when final representations

were being lodged on behalf of the applicant. In the judgment of the Court, in the absence of reliance upon particular material which

contradicts any specific and essential statement of fact relied upon by an applicant which is pertinent to the applicant’s personal

situation or condition, there is no obligation upon the respondent to enter into consultation with an applicant or to give advance

notice for the purpose of comment or rebuttal of publicly accessible material of this general character, intended to be relied upon in

setting out the grounds for rejection of representations and for making a deportation order. (See in that regard the judgment of

Finlay-Geoghegan J. in Muresan v Minister for Justice & Others; [2004] 2 I.L.R.M. 364 and by analogy the judgment of this Court in

A.A.[Iraq] v. Minister for Justice & Others [2012] I.E.H.C. 222).

92. Contrary to the submission made on behalf of the applicant, there is no obligation on the Minister to “engage with and reconcile”

divergent country of origin information. In this case the material submitted with the various letters making representations amounted

in total to in excess of 550 pages. In the view of the Court, the Minister in making his decision is not obliged to furnish a narrative

response which is commensurate in length with the case thus made. To enable an applicant to understand why the deportation order

is made and the Court to exercise its judicial review function, what is required is that the statement of reasons given should

adequately indicate that the substantive case made for leave to remain has been fairly considered and that, where a claim of risk to

life has been raised by reference to conditions in the country of repatriation, the reasons for rejection of the claim are rational and,

where necessary, supported by relevant, current and sufficiently authoritative information in relation to those conditions.

93. Ground No. 5: The applicant’s rights under Article 40.3.2 of the Constitution will be breached if deported to Nigeria. The answer

to this ground has already been given in the analysis set out above (See paras. 27 – 36). In the judgment of the Court, for reasons

there given, and subject only to any treaty or Convention obligations undertaken, the State has no constitutional responsibility for

the continuing treatment of a non-national present without permission in the State who happens to be suffering from a potentially life

threatening condition unless, at least, it is demonstrated that the very act or necessary consequence of expulsion and transfer to the

country of origin will be likely to bring about the inevitable or accelerated and more distressful death of the person concerned.

94. Ground No. 6: The applicant’s rights under articles 3 and 8 of the European Convention on Human Rights are breached having

regard to the Commission’s report in B.B. v. France 9 March 1998, RJD, 1998 VI, p2596. Again, the answer to this ground has already

been given above. On the facts of this case, it was clearly open to the respondent to determine that this was not one of the

“exceptional circumstances” which attract the application of the prohibition in article 3 in an illegal immigrant expulsion case. The

applicant’s present medical condition is not critical. She is not at imminent risk of significant deterioration in health by reason only of

repatriation to her country of origin. Admittedly, access to the ARV therapy she requires is more difficult and more costly in Nigeria,

but it was open to the respondent to take into account in conjunction with the current country of origin information as to improved

availability of treatment, and as a matter of significance, the opinion that she had actually already received such treatment in Nigeria

before departure. The Convention does not extend to create an entitlement on the part of a non-national who is in the State without

permission to be allowed to remain in the State for the purpose of availing of medical treatment. Moreover, as the applicant has been

receiving treatment successfully such that she is not now in any critical condition and is fit to travel, it cannot be said that her right

to life is jeopardised by the act of repatriation itself. In the judgment of the Court, this position is not altered by the other personal

circumstances relied upon, namely her alleged absence of immediate family support in Nigeria. In fact the applicant has three adult

children in Nigeria. Nor in the judgment of the Court is her position altered by the fact that the applicant has additional complications

of cognitive impairment and the fact that HIV sufferers can be shown to be at risk of stigmatisation and discrimination due to local

prejudices. In that regard she will be in the same situation as her fellow Nigerian citizens facing similar problems. International law

does not impose upon states an obligation to afford protection to individuals against the consequences of life threatening illness or

popular prejudice save where the consequences are of such severity as brings the individual case within the protection afforded by

the prohibition on refoulement or article 3 of the European Convention on Human Rights. Moreover, in the judgment of the Court

evidence of popular prejudice involving possible discrimination and stigmatisation is only relevant for the purpose of the application of

article 3 in the context of a “HIV/AIDS expulsion case” where it is shown to be so pervasive and effective as to make it probable that

the deportee will be deprived of necessary medical treatment as a result. If Dr. McConkey’s expert opinion is accepted, the applicant

has not been denied treatment on that basis in the past and there was therefore no reason for the Minister to suppose that she

would be denied it on that basis in the future particularly having regard to the evidence before the decision makers as to the

significant progress that has been made in combating the problem since she left Nigeria in 2006.

95. For the reasons already given above, the Court is satisfied that the present case does not give rise to the “exceptional

circumstance” which brings into play a possible infringement of the right to protection of life under article 3 of the European

Convention on Human Rights and is clearly distinguishable from the case of D. v. United Kingdom (1997) 24 E.H.R.R. 423 because of

the non- critical state of the applicant’s medical condition, the assessment that continuing treatment will be available to her in Nigeria

and particularly the reasonable conclusion that she had already received such treatment before leaving the country.

96. So far as concerns the claim of infringement of the right to protection of private life under article 8 of the European Convention

on Human Rights, the case made is substantially the same as that advanced in respect of article 3. In the analysis of this part of the

claim in the memorandum, the respondent has relied on the approach of Agbonlahor v. Minister for Justice [2007] 4 I.R. 309, where

Feeney J. referred for guidance to the judgment of the House of Lords in the N. v. Secretary of State for the Home Department

[2005] 2 A.C. 296 case, in which it had been held that a withdrawal of medical treatment which would shorten the appellant’s life

expectancy did not bring about a violation of article 3. Feeney J. said:

“This Court is satisfied that that case and decision provides guidance to the correct approach to be taken by this Court in

relation to article 8 rights. The approach and analysis adopted by the House of Lords in the N. v. Secretary of State for

the Home Department, albeit in relation to article 3 rights, represents in this Court’s view a correct and proper approach

to the Article 8 rights sought to be protected in this case. . . . This Court is satisfied that the principles and approach

identified by the House of Lords in N. v. Home Secretary in relation to article 3 are equally applicable to article 8. Given

both the wording and content of article 3 it is difficult to envisage that the threshold in relation to Article 3 could in any

way be lower than the threshold applying to article 8.”

97. On that basis the memorandum reaches a conclusion on article 8 in these terms:

“Having considered all of these facts, it is not accepted that the deportation of the applicant, and in particular the fact

that the conditions and treatment available to her in Nigeria would be less favourable than those available to her in

Ireland, would have consequences of such gravity as potentially to engage the operation of Article 8. As a result, the

decision to deport [the applicant] does not constitute a breach of the right of respect for [her] private life under Article 8

of the ECHR. As a result, the decision to deport [the applicant] in pursuance of lawful immigration control does not

constitute a breach of the right of respect for [her] private life under Article 8 of the ECHR.”

98. It was submitted that this conclusion is wrong in law in that it fails to consider correctly the basis on which the protection of

private life afforded by article 8 can apply to a deportation case where the health, including the mental health, of the individual will be

interfered with by the deportation. It was argued that the Agbonlahor v. Minister for Justice [2007] 4 I.R. 309 case was mistaken in

conflating the distinct principles of articles 3 and 8. It was further argued that the memorandum was deficient in failing to have regard

to the private life that would face the applicant in Nigeria.

99. In addressing these arguments it is necessary to bear in mind the distinction between the two articles. Article 3 (quoted above at

para. 38) is absolute in the obligation undertaken by the Contracting States. In expulsion and deportation cases this means that

deportation cannot be implemented once it is clear that the repatriation will result in the life of the deportee being put at risk and this

is so irrespective of the reasons for the expulsion, including the conduct or criminal convictions of the person concerned, or the fact

that the deportee is considered to be a threat to public security.

100. Article 8 on the other hand is qualified in its obligation:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with

law and 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.”

101. The essential objective of article 8 is thus to afford protection for the private and family life of the individual against arbitrary

interference by public authorities. The concept of private life is effectively the entitlement of the individual to personal autonomy; to

make choices regarding one’s own life and development; to establish relationships and communicate with others free of unjustified or

arbitrary state intervention. It encompasses personality, physical and psychological integrity, sexual orientation, name and reputation.

(See Bensaid v. United Kingdom (2001) 33 E.H.R.R. 205 (supra, paras. 47 & 48.) The article is not merely prohibitory however, it may

in appropriate circumstances impose obligations on Contracting States to take positive measures to ensure that private or family life

may be normally pursued. (See, for example, Marckx v. Belgium (1979) 2 E.H.R.R. 330 at para. 31).

102. It is of course well settled in the case-law of the European Court of Human Rights that the protection afforded by article 8 will

fall to be considered in expulsion/deportation cases and this may be so even where a reliance on the protection of article 3 has not

succeeded.

Thus, in Bensaid v. United Kingdom the Court said:

“Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to

private life guaranteed by Article 8. However, the Court’s case-law does not exclude that treatment which does not reach

the severity of Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where there are sufficiently

adverse effects on physical and moral integrity.” (See para. 46: see also the Court’s judgment of 25 March 1995 in

Costello-Roberts v. United Kingdom (1995) 19 E.H.R.R. 112, at para. 36).

103. In principle therefore, the protection of article 8 in its private-life aspect may be invoked by a prospective deportee as an

interference with private life where the health of the person concerned is currently dependent on continuing medical treatment and

repatriation will interrupt that treatment. In such cases, the issue as to whether article 8 is infringed turns upon the assessment

made under para. 2 of the article and on whether in the particular circumstances of the individual’s medical condition and the

seriousness of the risk of interference with access to treatment, the expulsion can be shown to be in accordance with law and

necessary on one or more of the grounds permitted by the article.

104. In considering such balancing assessments in the application of article 8 it is also important to bear in mind that, as already

indicated above in relation to the case-law on article 3, the Strasbourg Court has always drawn a distinction in expulsion/deportation

cases between those in which the person concerned has been lawfully resident in the Contracting State and has forfeited that

entitlement or had it withdrawn for reasons of criminal activity or threat to public order or security on the one hand; and those in

which the individual has been present illegally (See, for example, Ezzouhdi v. France (2001) E.C.H.R. 85; Boultif v. Switzerland (2001)

33 E.H.R.R. 50. The present case, obviously, comes within the latter category.

105. As the memorandum recognised, the repatriation will disrupt the applicant’s private life insofar as it has been established in the

State since her arrival in November 2006. Given that all of her private and family life as an adult prior to that had been lived in Nigeria

and that she still has three adult children there, it could not be said to be irrational, unreasonable or disproportionate for the Minister

to conclude that her deportation in the interests of maintaining the integrity of the immigration system would not constitute an

infringement of article 8. Such private life as she may have lived in the State has been temporary and tentative pending the asylum

application. Her access to the medical treatment has been possible for her out of humanitarian consideration and not as of

entitlement as a lawful resident or settled migrant. Her position in that regard is therefore significantly different from that of a settled

migrant whose deportation would sever well established social ties which form part of the matrix of private life. If the interference

with the health facet of her private life has been reasonably judged not to give rise to an infringement of article 3, it cannot, in the

judgment of the Court, be said to be an unreasonable evaluation for the purpose of article 8 para. 2 for the Minister to have

concluded that the interference with her private life as it is established at the time of making the contested decision, was necessary

in the interests of immigration control. Nor in the judgment of the Court would the evaluation be any different by reference to the

private life it is said the applicant will have on return to Nigeria. In that regard she will be resuming the private life she led prior to her

voluntary abandonment of it in 2006. In any event, in the judgment of the Court, the private life for which protection is afforded by

article 3 is that led in the Contracting State. It is, as pointed out above, the protection against arbitrary or unjustified interference by

public authorities. In deportation/expulsion cases the interference for the purpose of article 8 is that brought about by the making of

a deportation order by the public authority of the Contracting State. That is the only private life in respect of which a Contracting

State can be obliged to refrain from interference. In the judgment of the Court, the conclusion on article 8 in these circumstances

was a conclusion which was clearly open to the Minister and an obviously reasonable one having regard to the circumstances of the

applicant; her present medical condition; the information as to the availability of equivalent treatment in Nigeria and the short

duration and provisional nature of her presence in the State.

106. For all of these reasons the Court is satisfied that the grounds for which leave was granted have not been made out and the

judicial review application is therefore refused.