Sheona York, of the University’s Kent Law School, comments: ‘The decision to effect forcible removal of Bhavani Espathi, a woman extremely sick with Crohn’s disease, back to India is just one of a number of recent very harsh Home Office decisions to remove migrants who are seriously ill.
‘However, responsibility for such harsh decisions goes beyond individual Home Office officials to various Home Secretaries of both main parties, and is backed up by long-standing judgments in the European Court of Human Rights as well as the UK House of Lords.
‘It is accepted that the UK is bound by Article 3 of the European Convention on Human Rights, which sets an absolute prohibition on “torture, inhuman or degrading treatment”. Effectively, the Courts have managed to carve out a distinction between death or suffering arising from torture, and death or suffering arising from being sent back to a country with no or inadequate medical treatment. This is despite a legal acceptance that lack of medical treatment could amount to “inhuman and degrading treatment” prohibited by Article 3.
‘The House of Lords in 2005 decided that a woman whose HIV was controlled, and who therefore was not near death, could be removed from the UK even though the result would be that, unable to afford her antiretroviral treatment, she would develop AIDS and die within a year or two. That case was then heard in the European Court of Human Rights, which agreed with the House of Lords. The reasoning was explicitly that the countries who had signed up to the European Convention on Human Rights had not signed up to accepting the world’s poor into their countries and providing them with health care.
‘However the courts have clearly stated that, although the current state of the law might point to a negative decision, the Home Secretary has discretion (as he does in any immigration matter) to allow the person to remain on compassionate grounds.
‘In other words, it is always open to the Home Secretary to grant leave to remain to desperately sick people such as Ms Espathi as a simple act of common humanity, without “opening the floodgates” or measurably increasing any “pull factor”.’
Sheona York’s research focuses on issues arising from recent and current UK immigration policies such as the aim to reduce net migration, to discourage unlawful migrants through the ‘hostile environment’ and to deport foreign criminals.