Case No: C5/2006/2129
Neutral Citation Number: [2007] EWCA Civ 250
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
(AIT No.: AS/06216/2004)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 2nd March 2007
Before:

LORD JUSTICE HOOPER

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Between:

	DA (ERITREA)	
Applicant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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(DAR Transcript of 
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MR R ANDRE (instructed by White Ryland Solicitors) appeared on behalf of the Applicant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Hooper:
1.	This is a renewed application for permission to appeal a decision of Immigration Judge Appleyard in his determination and reasons prepared on 21 April 2006 following a hearing.  The District Judge dismissed the appellant’s appeal both on asylum grounds and on human rights grounds.  An application for permission to appeal that decision was subsequently refused by senior Immigration Judge Goldsteam J and was then renewed on paper.  It was refused by Hallett LJ in one line when she stated that she wrote “there are no material errors of law identified”.  Mr Andre before me accepts that he cannot succeed on the asylum part of the appeal unless he can show that a finding of fact contained in paragraph 30 of the determination and reasons is one which no reasonable judge could properly reach.  Immigration Judge Appleyard said this: 
“Because of his lack of credibility I am not persuaded even to the lower standard that he is a draft evader/deserter.  If anything he is someone who has carried out his military service and then taken up the occupation of a taxi driver.  He is no stranger to forged documents …”
2.	Mr Andre attacks that finding in writing in his advocate’s statement and orally before me and does so by reference to the background material discussed particularly in the case of KA CG UK AIT 00165 of 2005.  Mr Andre focuses on those parts of KA which relate to persons of the age of this appellant who leave Eritrea without an exit visa.  The thrust of the argument is that such a person will be treated as having left in order to avoid military service, with the consequences referred to in KA.  
3.	In my judgment, Mr Andre’s argument is hopelessly flawed.  The material being referred to in KA was of no assistance to him, in my view, in reaching his decision as to credibility.  He decides that he is not someone who is a draft evader or deserter, indeed he appears to be someone who has carried out his military service and subsequently taken up occupation as a taxi driver.  In my view it is not arguable that the background material and KA are of any help to him at all.
4.	I turn to the human rights appeal.  In paragraph 31 Immigration Judge Appleyard said: 
“I note from the medical report prepared by Dr M. Teo that there is no reference to any difficulties the Appellant might face, as he claims, by having to travel. There is also no reference to the lack of medical facilities in the Appellant’s home country. The evidence of those facilities is provided in the country report. I note that general there is an acute lack of resources by there are some specialist facilities including an eye clinic. The healthy status of the citizens of Eritrea is hopefully improving by a grant approved by the World Bank Board. I accept the diagnosis of Devic’s disease. However, I do not find that the cumulative effect of the factors which were urged upon me by Mr Andre on behalf of the Appellant is such that it can amount to very exceptional circumstances in this Appellant’s case as envisaged in the appropriate test by the House of Lords in N. In that case, it was decided by the House of Lord that to make removal from the United Kingdom a breach of article 3 because of consequences for the Appellant’s health, there had to be established in the individual case very exceptional circumstances before the United Kingdom would be obliged to continue treatment for a person who otherwise has no right to be there. It was further states that the fact that an Appellant would be deprived of the medical treatment which would otherwise prolong his or her life was not the main consideration nor indeed was the fact that the humanitarian considerations in a particular case were of a very high. I do not find that, looking at all the evidence in the round and taking into account the Appellant’s medical situation and vulnerability on return to Eritrea cumulatively, his particular case is such that his circumstances crosses to high threshold to mean that his removal would breach his protected human right under Article 3. For Article 2 there is a high threshold and death must be a near certainty. The Appellant’s appeal does not reach this. There will be no flagrant breach of any other articles.”
5.	In his statement Mr Andre cites a letter from a consultant neurologist dated 10 October 2006.  That letter and the submissions which follow from it are set out in paragraphs 4, 5 and 6 of the advocate’s statement:  
“4.Since the original hearings, a letter update from the Leeds NHS letter from Dr Lily, Consultant Neurologist of 10 October 2006 who states:

‘This is to certify that the above man is my patient and has been under my care as an inpatient at the Leeds General Infirmary since 2005. He suffers from Devic's disease, which is a relapsing inflammatory condition of the spinal cord and brainstem for which there is no cure. He has had 4 attacks of the condition, during which he has accumulated a great deal of irreversible disability. Currently he is blind in one eye. He has no use of his legs and is incontinent. His arms are weak such that he cannot transfer himself or turn in bed without assistance. He uses a non-invasive ventilating machine at night and a cough assist machine to keep his chest clear. Unfortunately there is no prospect or a cure for his condition. If he has further attacks he is likely to deteriorate. 

‘In my opinion, if he returns to Eritrea without access to his current level of medical assistance, he will die within a few days as he will be unable to breath or cough properly. Neither is he fit to fly without intensive medical supervision and this situation is unlikely to change in the foreseeable future. 

‘Please let me know if you would like any additional information.’

“5. I disclose so as not to mislead this Court that my present instructions are that 4 has been moved to another facility under 24hr nursing care and that alternatives to the coughing assistance machine have very recently commenced testing on A. It is regretted that a full report has not been successfully procured for the instant Renewal Hearing, of which merely two weeks notice was given; but that one will be available for a full hearing, should one be granted.

“6. Nevertheless, on the present evidence available, I submit that A does fulfill the exceptional hardship test required for continuance of treatment in the UK under Art 3 ECHR. It appears that he will die within a matter of days without his present level of intervention. According to the CIPU at 24.01 and the UNHCR “facilities for the disabled are not functioning". The CIPU does not mention specialist facilities as are required instantly. It leaves an impression of dire shortages of trained personnel, resources and medicines. The CIPU is very vague indeed at 28.06 by citing from as source Asmera nl. (no date) and then providing a list of hospitals in Asmarha. Of course our own expert evidence on the adequacy and availability if treatment and support for the -Appellant would be required to be produced.”
 
6.	It seems to me that the decision reached by Immigration Judge Appleyard on the material available to him (and I have not seen the report of Dr Taylor myself, it not being in the bundle) was a conclusion which the judge was entitled to reach.  On the other hand, it may be that now the situation in which the appellant finds himself is considerably worse.  
7.	Although I refuse permission to appeal it may be that the Secretary of State will wish to reconsider the human rights ground in the light of the apparent and serious deterioration in the appellant’s condition. 
8.	For these reasons the renewed application for permission is refused.  I order a copy of the transcript to be prepared and made available to Mr Andre of Sovereign Chambers, Leeds, and his solicitors, White Ryland Solicitors, DX58704, Shepherd’s Bush, for such steps as they feel appropriate now to be taken.

Order: Application refused.