D v United Kingdom (Application 30240/96) [1997] ECHR 25

D, a St Kitts national with terminal AIDS, faced deportation from the UK after serving a drug trafficking sentence. The Court held that removing him to St Kitts, where he would lack medical treatment and support, would constitute inhuman treatment violating Article 3 ECHR due to the exceptional humanitarian circumstances.

Facts

The applicant, D, was a national of St Kitts who arrived at Gatwick Airport in January 1993 and was found in possession of cocaine worth approximately £120,000. He was refused leave to enter, prosecuted, and sentenced to six years’ imprisonment for drug importation offences.

While serving his sentence in August 1994, D was diagnosed with AIDS following an attack of pneumocystis carinii pneumonia. His condition was advanced, with a CD4 cell count below 10 since August 1995. He received sophisticated treatment including AZT and monthly nebulised pentamidine.

Medical evidence indicated his life expectancy was eight to twelve months with treatment, and would be substantially shortened without it. St Kitts lacked adequate medical facilities for AIDS treatment, and D had no family home, close relatives, or support network there.

Domestic Proceedings

D’s request to remain on compassionate grounds was refused. His application for judicial review was dismissed by the High Court and Court of Appeal. Sir Iain Glidewell stated in the Court of Appeal:

“Nobody can but have great sympathy for this applicant in the plight in which he finds himself… nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all.”

Issues

The central issues before the European Court of Human Rights were:

• Whether removing D to St Kitts would violate Article 3 ECHR (prohibition of inhuman or degrading treatment)
• Whether there was a breach of Article 2 ECHR (right to life)
• Whether Article 8 ECHR (right to respect for private life) was violated
• Whether D had an effective remedy under Article 13 ECHR

Judgment

Article 3 Analysis

The Court emphasised that while Contracting States have the right to control entry and expulsion of aliens, they must have regard to Article 3, which enshrines fundamental values of democratic societies. The Court stated:

“Article 3 prohibits in absolute terms torture or inhuman or degrading treatment or punishment and its guarantees apply irrespective of the reprehensible nature of the conduct of the person in question.”

The Court reserved flexibility to address Article 3 applications where the source of risk stems from factors that cannot engage the responsibility of the receiving country’s authorities. It held:

“To limit the application of Article 3 in this manner would be to undermine the absolute character of its protection.”

Considering D’s critical condition, the Court found:

“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.”

The Court emphasised this was based on “very exceptional circumstances” and “compelling humanitarian considerations,” noting that aliens who have served prison sentences cannot generally claim entitlement to remain for medical or social assistance.

Articles 2 and 8

The Court found the complaints under Article 2 were indissociable from Article 3 and required no separate examination. Similarly, Article 8 raised no separate issue.

Article 13

The Court held there was no violation of Article 13, finding that judicial review proceedings afforded an effective remedy as the Court of Appeal had examined the substance of D’s complaint.

Implications

This landmark judgment extended Article 3 protection to cases where the source of inhuman treatment does not emanate from intentional acts of authorities in the receiving country. It established that in exceptional circumstances, removal of a seriously ill person to a country lacking adequate medical facilities may violate Article 3.

The Court was careful to limit the scope of its ruling, emphasising the exceptional nature of the circumstances and that this did not create a general right for ill persons to remain for medical treatment. The decision significantly influenced subsequent immigration and asylum cases involving seriously ill applicants across Council of Europe member states.

Verdict: The Court unanimously held that implementation of the decision to remove the applicant to St Kitts would violate Article 3 of the Convention. It found no violation of Article 13, and determined that Articles 2 and 8 raised no separate issues requiring examination.

Source: D v United Kingdom (Application 30240/96) [1997] ECHR 25