CEDH · CASELAW;REPORTS;ENG — 15 octobre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 30240/96                                     D.                                   against                             the United Kingdom                          REPORT OF THE COMMISSION                        (adopted on 15 October 1996)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-20) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-15). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 21-41). . . . . . . . . . . . . . . . . . . . . . . . 4         A.    Particular circumstances of the case            (paras. 21-32) . . . . . . . . . . . . . . . . . . . . . 4         B.    Relevant domestic law and practice            (paras. 33-37) . . . . . . . . . . . . . . . . . . . . . 6         C.    Other relevant materials            (paras. 38-41) . . . . . . . . . . . . . . . . . . . . . 7   III.   OPINION OF THE COMMISSION       (paras. 42-74). . . . . . . . . . . . . . . . . . . . . . . . 8         A.    Complaints declared admissible            (para. 42) . . . . . . . . . . . . . . . . . . . . . . . 8         B.    Points at issue            (para. 43) . . . . . . . . . . . . . . . . . . . . . . . 8         C.    As regards the proposed expulsion of the applicant            (paras. 44-64) . . . . . . . . . . . . . . . . . . . . . 8              CONCLUSIONS            (paras. 62-64) . . . . . . . . . . . . . . . . . . . . .13         D.    As regards Article 13 of the Convention            (paras. 65-70) . . . . . . . . . . . . . . . . . . . . .13              CONCLUSION            (para. 70) . . . . . . . . . . . . . . . . . . . . . . .14         E.    Recapitulation            (paras. 71-74) . . . . . . . . . . . . . . . . . . . . .14                                    TABLE OF CONTENTS                                                                    page   PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL, A. WEITZEL, J.-C. SOYER, I. BÉKÉS, G. RESS AND C. BÎRSAN . . . . . . . . . . . . . . . . . .15   PARTIALLY DISSENTING OPINION OF MR. J.-C. GEUS, JOINED BY MRS. G.H. THUNE, M.P. PELLONPÄÄ, B. MARXER AND N. BRATZA . . . . . . . . . . . . . . . . . . . . . .18   APPENDIX:   DECISION OF THE COMMISSION AS TO THE            ADMISSIBILITY OF THE APPLICATION .   . . . . . . . . . . 19   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a citizen of St. Kitts born in 1960 and currently held in detention pending removal. He is represented by Mr. Alan Simmons of the AIRE Centre, London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Martin Eaton as Agent, from the Foreign and Commonwealth Office.   4.     The case concerns the complaints of the applicant that the proposed removal from the United Kingdom to St. Kitts places him at risk of reduced life expectancy, of inhuman and degrading treatment and an invasion of his physical integrity since he is suffering from AIDS and he will be exposed to a lack of adequate medical treatment and living conditions. The application raises issues under Articles 2, 3, 8 and 13 of the Convention.   B.     The proceedings   5.     The application was introduced on 15 February 1996 and registered on 16 February 1996. On 16 February 1996, the respondent Government provided assurances that the applicant would not be expelled pending the Commission's examination of the case.   6.     On 8 March 1996, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits. It decided that the case should be given priority pursuant to Rule 33 of the Commission's Rules of Procedure.   7.     On 29 March 1996, the Government submitted their observations and on 11 April 1996 the applicant submitted his observations in reply.   8.     On 18 April 1996, the Commission decided to invite the parties to make submissions at an oral hearing.   9.     On 13 June 1996, the applicant submitted further observations and documents.   10.    At the oral hearing, held on 26 June 1996, the Government were represented by Mr. M. Eaton, Agent, Mr. N. Garnham, Counsel, Ms. S. McClelland, Mr. S. Hewett and Mr. P. Goulder, Advisers from the Home Office and Sir Franklin Berman, Legal Adviser, Foreign and Commonwealth Office. The applicant was represented by Mr. N. Blake, Q.C, Counsel, Mr.      L. Daniel, counsel, Ms. N. Mole and Ms. Holt as legal advisers and Ms. N. Rogers and Ms. B. Kryszko as legal assistants.   11.    On 26 June 1996, the Commission declared the application admissible.   12.    The parties were then invited to submit any additional observations on the merits of the application.   13.    On 17 July 1996, the President of the Commission decided to indicate to the United Kingdom Government in accordance with Rule 36 of the Commission's Rules of Procedure, that it was desirable in the interests of the Parties and the proper conduct of the proceedings that the applicant not be removed meanwhile from the United Kingdom.   14.    On 12 August 1996, the parties submitted further observations.   15.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   16.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A. WEITZEL                  J.-C. SOYER                  F. MARTINEZ                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  C. BÎRSAN                  E. BIELIUNAS   17.    The text of the Report was adopted by the Commission on 15 October 1996 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   18.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   19.    The Commission's decision on the admissibility of the application is annexed hereto.   20.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   21.    The applicant was born in St. Kitts and appears to have lived there most of his life. He was one of seven children to the family. One sister and brother moved to the United States in the 1970's and the rest of the family appears to have followed them at unspecified dates. The applicant visited the United States in 1989 to try to join his mother and brothers and sisters. He was convicted however on a drugs offence and received a custodial sentence of 3 years 2 months plus 3 years 10 months suspended. After one year, he was paroled for good behaviour and deported to St. Kitts.   22.    The applicant arrived in the United Kingdom on 21 January 1993. He was found in possession of prohibited drugs (cocaine) and refused leave to enter. He was however remanded in custody and prosecuted. On 10 May 1993, following his plea of guilty, he was convicted of being knowingly concerned in fraudulent evasion of the prohibition on the importation of a controlled drug and sentenced to six years' imprisonment. On 24 January 1996, he was released on licence.   23.    In August 1994, while serving his sentence, the applicant suffered an attack of pneumocystis carinii pneumonia and was diagnosed as HIV positive and as suffering from AIDS. Since August 1995, his T4 cell count has been below 10. He is in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue.   24.    In late 1994, the applicant applied for compassionate home leave to visit his mother. The request was granted on 3 March 1995 and the applicant was granted a period of leave for a family visit to his mother who was present on holiday in the United Kingdom.   25.    On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant's removal to St. Kitts.   26.    By letter dated 23 January 1996, the applicant's solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds. This request was refused on 25 January 1996 by the Chief Immigration Officer. On 2 February 1996, the applicant applied unsuccessfully to the High Court for judicial review of the refusal   of leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application for leave. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated the applicant's application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see Relevant domestic law and practice para. 37 below). As regarded the applicant's argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, the Court stated:         "Nobody can but have great sympathy for this applicant and the       plight in which he finds himself. If he is to return to St. Kitts       he will be unable to work and to receive medical treatment. In       many ways his plight would be great. On the other hand he       wouldn't be here if he hadn't come on a cocaine smuggling       expedition back in 1993 and he would have gone back to St. Kitts       long before his AIDS diagnosis. Taking into account the Court       must give the most anxious scrutiny to cases where life       expectancy is involved nevertheless I cannot find any grounds,       it seems to me the decision was well within the bounds of       discretion..."   27.    By letter dated 15 January 1996, Dr. Evans, a consultant doctor stated:         "His current treatment is AZT 250 mgs. b.d. and monthly nebulised       pentamidine, he occasionally takes mystatin pastilles and skin       emollients.         In view of the fact that <the applicant> has now had AIDS for       over 18 months and because this is a relentlessly progressive       disease his prognosis is extremely poor.         In my professional opinion <the applicant's> life expectancy       would be substantially shortened if he were to return to       St. Kitts where there is no medication; it is important that he       receives pentamidine treatment against PCP and that he receives       prompt anti-microbial therapy for any further infections which       he is likely to develop..."   28.    By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St. Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr. Hewitt, the managing medical officer at H.M. Prison   Wayland. By letter of 24 October 1995, Dr. Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St. Kitts but was widely and freely available in the United Kingdom and requested due consideration be given to lifting the deportation order in respect of the applicant.   29.    By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed those acting on behalf of the applicant that they had consulted their officer on St. Kitts who stated that there was no health care providing for drugs treatment of AIDS.   30.    In a medical report provided on 13 June 1996, Professor Pinching stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant's prognosis was poor and limited to 8-12 months.   It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be expected.   31.    By letter dated 1 August 1996,the High Commission for the Eastern Caribbean States confirmed that the position in St. Kitts had not changed since their letter of 20 April 1995.   32.    The applicant is currently in immigration detention.   B.     Relevant domestic law and practice   33.    By section 3 of the Immigration Act 1971 a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so. The power to grant leave lies with the Immigration Officers (section 4). By section 4 (1) of the 1971 Act the power to grant leave to remain in the United Kingdom is exercisable by the Secretary of State.   34.    There is a distinction in law and practice between leave to enter and leave to remain. A person, such as the applicant, who has been refused leave to enter but has remained physically in the United Kingdom,   cannot make an application for leave to remain but must make a further application for leave to enter.   35.    The Home Office policy document BDI 3/95 provides guidance to staff on how to proceed in cases involving those suffering from AIDS or who are HIV positive. This policy distinguishes between applications for leave to enter and applications for leave to remain.   36.    On applications for leave to enter (para. 4 of the guidelines), where the person is suffering from AIDS, the policy and practice is to adhere to the provisions of the Immigration Rules in the normal way. Where such a person does not qualify under the Rules, entry is refused.   37.    On applications for leave to remain (para. 5 of the guidelines), the application should be dealt with normally on its merits under the applicable Rules. However, there is a discretion outside the Rules which can be exercised in strong compassionate circumstances. Paragraph 5.4 states that "... there may be cases where it is apparent that there are no facilities for treatment available in the applicant's own country. Where evidence suggests that this absence of treatment significantly shortens the life expectancy   of the applicant it will normally be appropriate to grant leave to remain."   C.     Other relevant materials   38.    The following documentary materials have been submitted by the applicant.         1.    Extract, "Health Conditions in the Americas," 1994 Volume            II, concerning St. Kitts              "Health and Living Conditions         ...there are a number of serious environmental problems, such as       inadequate disposal of solid and liquid waste - especially       untreated sewage - into coastal lands and waters, resulting in       coastal zone degradation, fish depletion and health problems       (gastro-enteritis)..."         According to this publication, there are two general hospitals in St. Kitts, one with 174 beds and the other with 10.         2.    Treatment issues - a basic guide to medical treatment            options for people with HIV and AIDS" produced April 1996            by the Terence Higgins Trust   39.    This describes the three medical strategies available for treating HIV and AIDS: using anti-HIV drugs which attack HIV itself to delay or prevent damage to the immune system, treating or preventing opportunistic infections which take advantage of damage to the immune system and strengthening and restoring the   immune system. Amongst the first category, several drugs can be used, including AZT (also known as zidovudine or its tradename retrovir). This belongs to a family of drugs called nucleoside analogues which inhibit an enzyme produced by HIV called reverse transcriptase (RT). If RT is inhibited, HIV cannot infect new cells and the build up of virus in the body is slowed down. However, the existing drugs are only partially effective and at best can only delay the worsening of HIV-related disease rather than prevent it.   40.    As regards the second category, persons whose immune systems have been significantly damaged are vulnerable to a range of infections and tumours known as opportunistic infections. These commonly include cytomegalovirus (herpes virus), kaposi's sarcoma, anaemia, tuberculosis, toxiplasmosis and pneumocystis carinii pneumonia (PCP). PCP is a form of pneumonia which in people with HIV may affect the lymph nodes, bone marrow, spleen and liver as well as the lungs. Steps to avoid such infections include taking care with food and drink and prophylactic treatment by drugs. In the case of PCP which was a common cause of death during the first years of the epidemic and is still one of the commonest AIDS illnesses, options include the long term taking of antibiotics such as co-trimoxazole and the use of nebulised pentamidine which is intended to protect the lungs.   41. In relation to the third category, treatment which strengthens or restores the immune system, research has yet to produce any clear results.   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   42.    The Commission has declared admissible the applicant's complaints that his removal from the United Kingdom to St. Kitts places him at risk of a reduced life expectancy, of inhuman and degrading treatment and of an invasion of his physical integrity since he is suffering from AIDS and he will be exposed to a lack of adequate medical treatment and living conditions. It also declared admissible his allegation that he did not have an effective remedy for his complaints.   B.     Points at issue   43.    The issues to be determined in the present case are:         - whether the proposed expulsion discloses a violation of       Articles 2, 3 and/or 8 (Art. 2, 3, 8) of the Convention;         - whether there is a violation of Article 13 (Art. 13) of the       Convention in respect of an alleged lack of effective remedy       before a national authority in respect of the proposed expulsion.   C.     As regards the proposed expulsion of the applicant   44.    The applicant, who is suffering from AIDS, has invoked a number of provisions of the Convention in relation to the drastic and inevitable risks to his health and life-expectancy and the conditions which he will face if he is expelled from the United Kingdom to St. Kitts where there is no drug treatment for AIDS and limited medical facilities, where there are problems of public sanitation and hygiene and where he has no prospect of family support, employment or accommodation.   45.    The relevant provisions of the Convention provide:                             Article 2 (Art. 2)         "1.   Everyone's right to life shall be protected by law.   No one       shall be deprived of his life intentionally save in the execution       of a sentence of a court following his conviction of a crime for       which this penalty is provided by law. ..."                             Article 3 (Art. 3)         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."                             Article 8 (Art. 8)         "1.   Everyone has the right to respect for his private       ...life...         2.    There shall be no interference by a public authority with       the exercise of this right except such as is in accordance with       the 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."   46.    The applicant submits that the Government's responsibility is engaged in respect of the consequences which will ensue from his removal to St. Kitts. Where it is clear that the consequences of removal are of such a severity, it is no justification that the anticipated effect occurs outside the United Kingdom. Nor is it necessary that a third State would be in breach of obligations in respect of that effect before the United Kingdom's responsibility could be engaged.   47.    The applicant submits that to remove him to a country where he will be denied medical treatment necessary to control the development of his illness constitutes a withdrawal of treatment and a deprivation of medical and social protection which is in violation of his right to life. The medical reports indicate that there is a real risk that his already short life expectancy will be shortened even further as a result of the lack of medication and of poor sanitation, which makes it more likely that he will contract an infection which will be fatal, and the lack of accommodation or means to support himself.   48.    Under Article 3 (Art. 3), the applicant submits that his threatened removal in circumstances where he will be deprived of proper medical care with resulting deterioration in his health, causing him severe physical and mental suffering, constitutes treatment contrary to this provision. The applicant further argues that the risk to his physical integrity from the removal constitutes a violation of his right to respect for his private life as guaranteed under Article 8 (Art. 8) of the Convention, the effect on his health being disproportionate to any legitimate aim of immigration control.   49.    While the Government accept that St. Kitts will not be able to provide the applicant with the level of care available in the United Kingdom, they submit that the United Kingdom has no continuing responsibility for the applicant's health. They point out that the applicant had no right either to enter or remain in the United Kingdom and that he attempted to enter the country for the purpose of bringing in a dangerous drug. The fact that he served a term of imprisonment cannot impose on the United Kingdom an obligation to provide him with health care for the rest of his life. Nor can United Kingdom responsibility be engaged in respect of events which take place outside its jurisdiction. Responsibility under the Convention could only arise were the applicant to risk being subjected to treatment in St. Kitts which would, if done by a State Party to the Convention, be in breach of the provisions of the Convention. The fact that St. Kitts does not have the medical facilities or resources to prolong the life of an AIDS sufferer does not disclose any breach of the provisions invoked by the applicant.   50.    The Government further submit that Article 2 (Art. 2) cannot be interpreted so as to impose a positive obligation to take positive steps to preserve life, such as to provide medical care generally to those within its jurisdiction. They emphasise that it is the "right to life" not life itself which is to be protected by law. In any event it is not the expulsion which will shorten his life expectancy: the applicant's life is threatened by disease and it is paucity of treatment in St. Kitts which will shorten the applicant's life. The Government submit under Article 3 (Art. 3) of the Convention that even if the applicant would face increased anguish and mental suffering on his return, this does not disclose treatment of the minimum level of severity required by Article 3 (Art. 3). The applicant faces the consequences of a natural disease which cannot in any event be cured in the current state of medical knowledge and if removed he would face that prospect in the country where, but for the commission of a serious criminal offence, he would have lived throughout. Removing the applicant to a country less well equipped to provide medical care than the Contracting State also involves no direct interference with physical integrity contrary to Article 8 (Art. 8). There is no positive obligation to continue to provide him with care within the United Kingdom having regard in particular to the wide margin of appreciation in immigration matters and the circumstances which placed the applicant in the position of receiving medical care from domestic medical facilities.   51.    The Commission notes, first of all, that it is not disputed that the applicant's life expectancy, which is short, will be further reduced if he is sent back to St. Kitts. The Government have not challenged that this will be the result of the unavailability of the AIDS treatment which he is currently receiving in the United Kingdom. Notwithstanding however that there is an established risk that the applicant will die from his illness at an earlier date if removed than if he is not removed, the Commission does not find it necessary to decide whether this discloses a lack of respect for the right to life pursuant to Article 2 (Art. 2) of the Convention. It notes that there is no precedent for treating the risk to life-expectancy itself as falling within the scope of this provision, such other cases as have been declared admissible under Article 2 (Art. 2) of the Convention concerning factual circumstances where death has occurred or at least injury or illness caused as a result of matters for which the Government may be responsible (eg. No. 23414/94, dec. 28.11.94, D.R. 83-A p. 31 concerning complaints by the child of nuclear test veteran who suffered leukaemia and No. 23452/94, dec. 17.5.96 concerning death and serious injury from an attack in respect of which the police were allegedly negligent). There is no suggestion whatsoever that the United Kingdom has any responsibility for or connection with the applicant's infection, which appears to have occurred some time before his arrival in the United Kingdom.   52.    Consequently, the Commission considers that the substance of the applicant's complaints as to the risk to his life-expectancy are inseparable from the allegations concerning the severity of the effect on his health and welfare of the proposed removal under Article 3 (Art. 3) of the Convention and should be examined globally in the context of that provision.         Concerning State responsibility under Article 3 (Art. 3)   53.    The Convention case-law establishes that extradition or expulsion by a Contracting State of an asylum-seeker may engage their responsibility where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman and degrading treatment or punishment in the country to which he was returned (eg. Eur. Court H.R. Soering judgment of 7 July 1989 Series A no. 161 and Vilvarajah and others judgment of 30 October 1991, Series A no. 215 p. 34 para. 103). Contrary to the submissions of the Government above, the Commission observes that a finding that such risk exists does not necessarily have to involve liability of the receiving State or any public authority. The Commission has previously taken account of the risk deriving from non- Governmental sources. In the case of Ahmed v. Austria (No. 25964/94 dec. 2.3.95, Comm. Rep. 5.7.95 pending before the Court), it was sufficient that the source of the risk came from those wielding substantial power within the State, which was clearly the situation in Somalia as regarded General Aideed. Similarly in H.L.R. v. France (No. 24573/94, Comm. Rep. 7.12.95 pending before the Court) the risk to the applicant was from the powerful and structured criminal organisations in Colombia against whom it was more than likely the Government of Colombia would be unable to offer adequate protection.   54.    Having regard to the principle that the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see eg. Soering judgment loc. cit. p. 34 para. 87), the Commission finds that exposure to a real and substantiated risk to health of such severity as to fall within the ambit of Article 3 (Art. 3) which derives from other factors in the receiving State, including lack of medical care or facilities, social or environmental circumstances, may also engage the responsibility of the expelling State (see eg. No. 23634/94 dec. 19.5.94 D.R.77-A p. 133 and Nasri v. France, No. 19465/92 Comm. Rep. 10.3.94 Series A no. 320 in which the sensory and social isolation to which the deaf and dumb applicant would be exposed on expulsion to Algeria was found by the majority of the Commission to disclose inhuman treatment).   55.    In the present case, the Commission recalls that the Government submit that the applicant is not in fact subject to a measure of expulsion as such, but has been refused leave to enter and is in the same position in domestic law as any person suffering from AIDS who might be seeking leave to enter the United Kingdom. The Commission notes that this is the approach to domestic law adopted by the United Kingdom immigration authorities and the courts. However, the Commission considers that this is an artificial and technical construction in this case which fails to take into account the fact that the applicant was present in the United Kingdom for over three years under the responsibility of the authorities who prosecuted and imposed a sentence of imprisonment on him. The artificiality of the situation is highlighted by the consideration that if the applicant had been arrested outside the airport in possession of the drugs he would have been subject to the same criminal measures but a different approach would have had to be adopted to his removal by the immigration authorities.   56.    The Commission finds therefore that the applicant has been present in the United Kingdom for a significant period of time as a result of measures undertaken by the authorities and pursuant to which they have had the responsibility for his health care and he has become dependent on the provision of drug treatment for his condition. The Commission notes that Government accepted at the oral hearing that a denial of health care to the applicant while he was in prison would probably have given rise to responsibility under the Convention and to a violation. In these circumstances, the proposed removal from the United Kingdom to St. Kitts cannot be considered comparable to the refusal of entry to an alien seeking admittance at the border or customs control. Consequently, the Commission considers that the proposed removal from the United Kingdom will engage their responsibility if there is a real and substantiated risk of the applicant suffering treatment contrary to Article 3 (Art. 3) of the Convention as a result.   57.    While the Commission recalls that the applicant has committed serious drugs offences, it would observe that there is no indication that his continued presence in the United Kingdom would pose a problem of crime or public order. In any event, once the risk to an individual of treatment contrary to Article 3 (Art. 3) has been established, considerations of public order or immigration control cannot be weighed in the balance so as to reduce the level of protection afforded under the Convention (mutatis mutandis, No. 22414/93 Chahal family v. the United Kingdom, Comm. Rep. 27.6.95, pending before the Court). The guarantees of Article 3 (Art. 3) of the Convention are of an absolute character, permitting no exception.         As regards the risk of treatment contrary to Article 3 (Art. 3)       of the Convention   58.    The Commission recalls that if the applicant returns to St. Kitts he will no longer receive the drugs treatment of AZT which seeks to inhibit the spread of HIV and slow the incidence of the opportunistic infections to which AIDS sufferers are acutely vulnerable or of nebulised pentamidine which protects against PCP, which is one of the commonest AIDS illnesses. This, it is not contested, will render the occurrence of life-threatening infections a probability within a short period of time. The risk of infections is also aggravated by shortcomings in public sanitation (see above 38).   59.    While there are two hospitals (174 and 10 beds respectively) on St. Kitts, the available facilities for treating such infections are limited. The applicant has submitted, and the Government have not disputed, that the applicant has no close family members in St. Kitts and that he has no accommodation or means of support there. There is no ground on which to doubt the applicant's contention that he will probably be homeless and without resources or support in the final stages of a fatal illness. The Government have not sought, it would note, any information from the St. Kitts' authorities as to any steps which might be taken to alleviate the applicant's difficulties on his return.   60.    The Commission is of the opinion that this situation will cause the applicant a severe level of physical and mental suffering such as to constitute inhuman treatment within the meaning of Article 3 (Art. 3). It also considers that it threatens to cause such anguish and extreme incapacitation that will render him unable to maintain the most basic human dignity as his illness runs its inevitably painful and fatal course. This discloses a real risk of degrading treatment within the meaning of Article 3 (Art. 3).   61.    In light of this finding, the Commission finds that no separate issue arises in respect of the applicant's complaints in relation to Article 8 (Art. 8).         CONCLUSIONS   62.    The Commission concludes, by 11 votes to 7, that there would be a violation of Article 3 (Art. 3) of the Convention if the applicant were to be removed to St. Kitts.   63.    The Commisison concludes, unanimously, that it is unnecessary to examine the complaint under Article 2 (Art. 2) of the Convention.   64.    The Commission concludes, unanimously, that no separate issue arises under Article 8 (Art. 8) of the Convention.   D.     As regards Article 13 (Art. 13) of the Convention   65.    Article 13 (Art. 13) of the Convention provides:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."   66.    The applicant submits that judicial review fails to provide an effective remedy in a case such as the present which relates to decisions of the Secretary of State in an area where he is accorded a very substantial discretion. Judicial review looks primarily at the decision-making procedure and is not concerned with the substantive merits of a decision. Here, the Immigration Rules treat the applicant as a person seeking entry and require that leave is refused. The policy of exceptional leave for AIDS sufferers only applies to those who have entered the United Kingdom. There is no ground of legality on which to challenge the decision, and the other bases of challenge, impropriety or irrationality, do not require the courts to give consideration to the terms of the Convention or any particular weight to the risk to the applicant's rights. There has never been a case where the domestic courts have quashed a lawful exercise of discretion on the grounds of its consequences in interfering with fundamental rights protected by the Convention.   67.    The Government submit that judicial review does furnish an effective remedy. While the Convention is not incorporated into domestic law, the courts will refer to it in order to resolve ambiguities in primary or secondary legislation. The courts take the approach that any restriction of a fundamental human right requires to be justified by an important competing, public interest, the more substantial the interference the more being required by way of justification before they will be satisfied that the decision is reasonable. On judicial review, the courts may overrule the Secretary of State's discretion as unlawful on grounds of being tainted with illegality, irrationality or procedural impropriety - a decision may therefore be quashed if it is established for example that there was a serious risk of inhuman treatment on the ground that no reasonable Secretary of State could take such a decision.   68.    The Commission recalls that Article 13 (Art. 13) of the Convention guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms. This requires the provision of a domestic remedy allowing a national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. Article 13 (Art. 13) cannot be interpreted as requiring any particular form of remedy, Contracting States being afforded a margin of discretion.   The fact that an applicant has been unsuccessful in pursuing a remedy is not as such a material factor, effectiveness not requiring any certainty of success (see in particular Eur. Court H.R. Soering judgment of 7 July 1989, Series A no. 161 p. 47 para. 120 and Vilvarajah and others judgment of 30 October 1991, Series A no. 21 p. 39 para. 122).   69.    The Commission notes that there was no dispute of fact before the domestic courts as to the likely effects of a removal on the applicant. The Court of Appeal had regard to the hardship that would result and referred to the obligation on the court to give the most anxious scrutiny to cases where life expectancy is involved before nonetheless concluding that it found no grounds to grant relief. The Commission considers that the domestic court examined the substance of the applicant's Convention complaints and had the power, if it thought it appropriate, to quash the impugned decision of the Secretary of State. In these circumstances the Commission concludes that the applicant did have available to him an effective remedy for his complaints as required by Article 13 (Art. 13) of the Convention.         CONCLUSION   70.    The Commission concludes, by 13 votes to 5, that there has been no violation of Article 13 (Art. 13) of the Convention.   E.     Recapitulation   71.    The Commission concludes, by 11 votes to 7, that there would be a violation of Article 3 (Art. 3) of the Convention if the applicant were to be removed to St. Kitts (para. 62).   72.    The Commission concludes, unanimously, that it is unnecessary to examine the complaint under Article 2 (Art. 2) of the Convention (para. 63).   73.    The Commission concludes, unanimously, that no separate issue arises under Article 8 (Art. 8) of the Convention (para. 64).   74.    The Commission concludes, by 13 votes to 5, that there has been no violation of Article 13 (Art. 13) of the Convention (para. 70).           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission                                                           (or. English)   PARTIALLY DISSENTING OPINION OF MRS. J. LIDDY, MM. E. BUSUTTIL, A. WEITZEL, J.-C