Compassionate grounds – HIV – Leave to remain – Medical treatment

SG (Zimbabwe) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justices Sedley, Rimer, Sullivan): 12 January 2011

The appellant (G) appealed against a decision, following a rehearing, dismissing his appeal against the refusal of the respondent secretary of state to grant him indefinite leave to remain.

G was a Zimbabwean national. He arrived in the UK in 2002 and was granted a six-month visitors’ visa. He was later granted leave to remain as a student. He was diagnosed as HIV positive and started anti-retroviral treatment which he would need for his whole life. G had been working for five years as a road sweeper enabling him to send £300 a month to his wife, children and in-laws in Zimbabwe, which was the only income enjoyed by his family. His two brothers held government jobs in the capital city. His application for indefinite leave to remain on compelling and compassionate grounds due to the potential impact of the withdrawal of anti-retroviral treatment was refused, and a decision was made to remove him. An immigration judge hearing his case following a second-stage rehearing dismissed his appeal. He found that a significant number of people were receiving treatment for HIV/AIDS in Zimbabwe, waiting times were not excessive, and evidence from the World Health Organisation (WHO) was that priority for treatment was given to those already on anti-retroviral treatment. Furthermore, his family members could help him to get treatment for his condition. G argued that the immigration judge failed to take into account his family’s dependence on his monthly remittances, that his treatment would depend on the charity of his brothers and that two-thirds of Zimbabweans did not have access to anti-retroviral treatment.

Held: The current state of affairs on health delivery in Zimbabwe for people who were HIV positive was in flux and doubt particularly as charitable funding for such treatment was currently in question. Apart from that factor there were two further issues, namely the financial resources available from G’s brothers to assist him, and the WHO policy for prioritising treatment for returnees on anti-retroviral drugs in the area to which he was returning. The court was not in the position to answer either of those two issues. The case would therefore be remitted to the Upper Tribunal.

Appeal allowed.

Margaret Phelan (instructed by Polpitiya & Co) for the appellant; Colin Thomann (instructed by Treasury Solicitor) for the respondent.