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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.E.O -v- The Minister for Justice, Equality and Law Reform [2012] IEHC 394 (05 September 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H394.html Cite as: [2012] IEHC 394 |
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Judgment Title: M.E.O -v- The Minister for Justice, Equality and Law Reform Neutral Citation: [2012] IEHC 394 High Court Record Number: 2010 956 JR Date of Delivery: 05/09/2012 Court: High Court Composition of Court: Judgment by: Cooke J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 394 THE HIGH COURT JUDICIAL REVIEW [2010 No. 956 J.R.] BETWEEN M. E. O. [Nigeria] APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENT JUDGMENT of Mr. Justice Cooke delivered the 5th day of September, 2012 1. By order of the Court (Hogan J.) of the 16th September, 2011, leave was granted to the applicant to apply for judicial review of a deportation order (the “contested decision”) made in respect of her by the respondent on the 17th June, 2010. The application for leave was the subject of a detailed judgment of Hogan J. of the 9th September, 2011. The Leave Grounds.
(2) The Minister’s reasoning was deficient “in the Meadows sense”. (This is a reference to the judgment of the Supreme Court in Meadows v. Minister for Justice [2010] 2 IR 701) (3) The examination of the file in relation to the Nigerian material was highly selective. (4) The specialised material relied upon by the Minister ought to have been disclosed to the applicant in advance in compliance with fair procedures. (5) The applicant’s rights under Article 40.3.2 of the Constitution will be breached if deported to Nigeria, where, possibly deprived of access to life saving treatment, indigent, poor and bereft of family and friends and suffering from impaired mental cognition, she will be condemned to face a decline and death over months in circumstances where her human dignity cannot be maintained. (6) Her rights under article 3 and article 8 of the European Convention on Human Rights may be similarly breached having regard in particular to the Commission’s decision in B.B. v. France 9 March 1998, RJD, 1998 VI, p2596. 4. She claimed to have been a business woman in Nigeria with a shop selling clothes. In 2005 a nearby pipeline exploded and her shop was burnt down. She later got a second shop with financial assistance from business partners, but this shop too was destroyed by fire started, she thinks, by drunken youths. She reported the fire to the police and they offered to investigate the matter if she brought them money. As a result of the fire she was unable to repay the money she owed to her business partners and they threatened to kill her. These alleged events had formed the basis of her claims to fear persecution and to be at risk of serious harm. 5. In a report dated the 14th December, 2006, under s. 13 of the Refugee Act 1996, the Commissioner made a negative recommendation on the asylum application. This was appealed to the Tribunal but the negative recommendation was affirmed by a decision of the Tribunal on the 25th May, 2007. Essentially, the Tribunal member held that the particular source of the feared persecution namely, the threats from her business partners, was not one with a Convention nexus and did not therefore constitute “persecution” for the purposes of s. 2 of the Act of 1996. In addition however, the Tribunal member held that there had not been any failure on the part of Nigerian authorities to provide State protection as the claimed persecution had never been reported to the police. 6. On the 19th July, 2007, in response to the letter under s. 3 of the Immigration Act 1999, representations for leave to remain and an application for subsidiary protection were submitted on behalf of the applicant. The application for subsidiary protection was refused on the 24th June, 2008. 7. On the 12th March, 2009, a deportation order in respect of the applicant was made by the respondent. An initial judicial review application (Record No. 2009, No. 351 J.R.) was commenced but subsequently compromised and the applicant was given an opportunity to make further representations in support of her application for leave to remain. These were duly forwarded by letters of the 26th April, 27th April and 12th May, 2010. 8. A new deportation order was then made on the 17th June, 2010, following consideration of the additional representations. This is the contested decision the subject of the present judicial review. The Main Issues. 10. The underlying issue raised by this application, therefore, is primarily a humanitarian one. The applicant entered the State without permission in 2006, but was then entitled to remain in accordance with s. 9 of the Refugee Act 1996, so long as her asylum application was being processed. The applications for asylum and subsidiary protection having been definitively rejected, she now has no legal entitlement to be present in the State by virtue of s. 5 of the Immigration Act 2004, unless the Minister grants her a permission under s. 4 of that Act. 11. The Oireachtas has conferred a discretion on the Minister as to whether a permission is granted to any third country national to remain in the State and as to the terms and conditions that may be attached to such a permission. (See s. 4(6) of the Act of 2004). While the Minister has a discretion it is one which must, of course, be exercised lawfully that is to say, in accordance with the terms of the legislation by which it is conferred and fairly, rationally and objectively having regard to the evidence and information available to the Minister. (See East Donegal Co-Operative Livestock Mart Ltd. v Attorney General. [1970] I.R. 317). 12. It goes without saying that in reviewing the contested decision in light of the grounds advanced, the Court is not concerned with the merits of the decision; with whether it is the decision the Court itself would have made nor with whether a better or different decision might have been more appropriate. The Court is concerned only to judge whether the contested decision is lawful in the sense indicated above and to satisfy itself that it is not vitiated by any material misdirection as to facts or by any manifest unreasonableness having regard to the premise upon which it is based. 13. The substantive effect of the contested decision is to refuse the applicant’s request to be permitted to remain in the State upon the ground of her medical condition and her need for continuing ARV treatment and, in consequence, to order her deportation to her country of origin because she has no permission to be in the State for the purposes of s. 5 of the Act of 2004. 14. Because the relief sought from the Court is an order of certiorari quashing that decision, the effect of the relief if granted would be to annul the deportation order and to leave to the Minister the decision as to whether a new deportation order should be made or some alternative course adopted. It is important also to emphasise that the Court is not concerned to decide whether the applicant has made out a humanitarian case to be granted leave to remain for the reasons advanced in her application. That decision is the exclusive function of the Minster. The point was expressed by Fennelly J. in his judgment in Meadows v. Minister for Justice [2010] 2 IR 701 in this way:-
Leave to Remain Representations. 17. The earlier representations were submitted on the statutory form with a letter of the 19th July, 2007 and supplemented by further representations of the 9th September and the 12th December 2008. Those representations made the basic case which has been reiterated and supplemented since. It was submitted that
18. Central to the claim has been the opinion of Dr Samuel J. McConkey given in a letter of the 17th July, 2007, which was attached to the letter of the 19th July, 2007. After giving the results of the tests carried out on the applicant at Beaumont Hospital when she first presented in December 2006, the key passages in his report are as follows:-
22. A further medical report was provided on the 8th April 2010, by Dr. Liam J. Lynch. This indicated a deterioration in the applicant’s condition. Since the HIV infection diagnosis she is described as having started to behave irrationally and on investigation was found to have cerebral toxoplasmosis as a complication of the HIV condition. She also developed peripheral neuropathy as a complication of the HIV condition giving her ongoing lower lumbar and left leg pains. She also had ongoing headaches, pains and recurrent infections as a result of the HIV infection. The opinion was expressed: “Her current medical status is such that requires ongoing specialist medical support and management and therefore it would be of huge importance to her health if she does remain in Ireland as otherwise her health and life would be severely compromised”. 23. A psychological assessment of the applicant was made by Dr. Joan Giller in April 2010. This assessment of cognitive dysfunction gave a result which “is highly consistent with significant cognitive impairment”. Dr. Giller expressed the view: “I would be very concerned about her ability to travel independently and to negotiate a return to a life in Nigeria”. 24. These updated medical reports formed the main basis of extensive representations made to the Minister by letter of the 27th April, 2010. Attached to these representations were some 250 pages of documentation comprising a wide range of reports and other material relating to the prevailing situation in Nigeria as regards the prevalence of HIV/AIDS conditions; the deficiencies in available treatment together with material directed towards the proposition that sufferers from these conditions are socially disadvantaged, in that they are stigmatised and discriminated against. In the representations the claim is made that the applicant’s personal position is such that these factors are exacerbated by the fact that she has no immediate family to look to for support or protection if returned to Nigeria. The point is made that the combination of her infection and dependence upon ARV treatment, her significant level of cognitive impairment and her alleged absence of family support, render her exceptionally vulnerable should she be returned to Nigeria with the consequence that her life would be threatened. 25. Apart from the differences of opinion as to whether the applicant was receiving ARV treatment in Nigeria before departure and as to extent of the availability of such treatment should she return, it is fair to say that the general assessment of the applicant’s medical condition and personal difficulties has not been in dispute. She is clearly in a vulnerable physical and mental condition and her future well being, which is already limited, is clearly dependent upon her ability to continue receiving effective ARV treatment. 26. The fundamental question which this situation raises accordingly, is who is responsible in international law for the applicant: Ireland or Nigeria? Can an individual already in poor health who enters the State illegally but with a view to making a claim for asylum which is determined to be unfounded, impose upon the host State a liability in law to provide continuing medical treatment by reason only of the fact that equivalent treatment in the country of origin is inferior, even grossly inferior, and the individual’s personal circumstances are such as to leave her without immediate family support? If the applicant, on arrival in November 2006, instead of claiming asylum had immediately sought permission to remain for the express purpose of accessing ARV treatment because it was unavailable to her in Nigeria, could the Minister have been compelled in law to grant her an indefinite or temporary permission to remain for that purpose? Does the legal position in that regard change because the State, for humanitarian reasons and in compliance with its obligations under the Convention Relating to the Status of Refugees, 1951 and later obligations of the Common Asylum Policy of the European Union, allows the asylum seeker to access remedial treatments while the asylum application is being processed? Constitutional Protection. 28. On the assumption that the phrase “by its laws” encompasses both the making of laws and the application in practice of existing laws, the obligation is to protect the life and person of every citizen from any attack which is unjust. It is not a general obligation to protect the life and person of citizens in all circumstances or from any attack or injustice from any source. The obligation comes into play where the life or person of a citizen is attacked or threatened with attack and the attack is unjust. This strongly implies that the obligation is one to protect the citizen against wrongful acts at the hands of third parties including agents of the State itself. Two questions therefore arise. Does the provision extend to require the State in an appropriate case to provide particular medical care to the individual citizen because he or she suffers from a life threatening condition and without which the individual will die? If it does, can the entitlement be invoked by a non-citizen present in the State without permission? 29. No judgment of the High Court or Supreme Court has to date held that Article 40.3.2 imposes upon the State a general obligation to provide necessary medical treatment to a citizen who is need of such treatment in order to forestall the natural consequences of a life threatening illness or disease. The constitutional protection obligation might well be breached where a treatment which is generally available through the public health services of the State was denied to an individual for some arbitrary reason or on some irrational ground. It would be a different matter to hold, however, that Article 40.3.2 imposes on the State a duty for example, to fund the transfer of a citizen to a foreign country to avail there of a treatment for a life threatening condition which was not available within the State. The existence of such a life threatening condition is a facet of the human condition; it is not an “unjust attack”. 30. This view of the Court that the protection from unjust attack on the life or person guaranteed by Article 40.3.2 does not extend to impose a positive duty on the State to ensure a particular quality of life (including health) for the individual citizen is clear from the manner in which the Courts have dealt with claims which have sought to enforce what have been called “socio-economic rights” on the basis of Article 40.3. Thus, in O’Reilly v Limerick Corporation [1989] I.L.R.M. 181, Costello J. rejected a claim on the part of members of the “travelling community” for damages against the State for an alleged breach of a constitutional right to be provided with a minimum standard of living conditions. Making a distinction between commutative justice and distributive justice, Costello J. held that the Court has jurisdiction to award damages against the State in respect of a wrong committed by an agent for which the State is vicariously liable but no jurisdiction “in cases where the claim is for damages based on a failure to distribute adequately in the plaintiff’s favour a proportion of the community’s wealth”. 31. In T.D. v. Minister for Education [2001] 4 IR 259, the Supreme Court set aside a High Court order which had directed the defendant to take the steps necessary to build and open a number of residences for troubled children upon the ground that the Court had no jurisdiction to intervene in policy considerations which were the proper function of the Executive. For present purposes it is especially pertinent to note the approach to interpretation of the articles expressed by Murphy J.:-
With the exception of the provisions dealing with education, the personal rights identified in the Constitution all lie in the civil and political rather than the economic sphere. . . . The absence of any express reference to accommodation, medical treatment or social welfare of any description as a constitutional right in the Constitution as enacted, is a matter of significance.” 33. For these reasons, the Court is satisfied that no provision of the Constitution imposes a positive obligation on the State to provide or to continue to provide any particular type of medical treatment to an individual citizen as a matter of right based upon the protection afforded by Article 40.3.2. 34. If that is the position in constitutional law so far as concerns citizens, it must necessarily also be true of non-citizens who happen to the present in the State without permission. Firstly, it is well settled that non-national parents of Irish citizen children cannot assert any constitutional right to reside in the State (See Fajujonu v. Minister for Justice [1990] 2 IR 151). The distinct position of citizens and non-citizens so far as the protections afforded by Article 40 of the Constitution are concerned was averred to by Keane C.J. in In the Matter of Article 26 of the Constitution and in the matter of ss.5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360:
36. As the Court has pointed out above, the central issue in this case is the humanitarian one under the Acts of 1999 and 2004, and that is why it falls to the respondent and not to the courts, to decide whether in the particular circumstances of this case the applicant’s request for continuing access to ARV treatment within the State should be accepted. The only function of the Court is to determine whether the decision made in that regard in this case has been lawfully made. The Convention Protection. Article 3 of the Convention
40. This particular predicament has been considered by the European Court of Human Rights in a number of analogous cases with, it must be said, differing outcomes. The cases upon which considerable reliance has been placed in argument on behalf of the applicant are that of D. v. United Kingdom, (1997) 24 EHRR 423), and as indicated in Ground no. 5 above, B.B. v France, 9 March 1998, RJD, 1998 VI, p2596 a report of the former Commission of Human Rights on 9 March 1998. The D. v. United Kingdom case has subsequently been the subject of judicial criticism notably in the United Kingdom by the House of Lords in N. v. Secretary of State for the Home Department [2005] 2 AC 296. D. v. United Kingdom. 42. The evidence also indicated that St. Kitts did not have the capacity to provide the medical treatment the applicant would require and that the applicant had no family home or relations in St. Kitts other than a cousin. (See paras.16-18 of the judgment.) 43. The Strasbourg Court found that to remove D. to St. Kitts would violate article 3 of the European Convention on Human Rights. In doing so the Court reaffirmed the established position that the Contracting States have the right to control entry, residence and expulsion of aliens. In exercising that right, however, they have an obligation to consider article 3 which prohibits in absolute terms torture and inhuman or degrading treatment. This guarantee applies irrespective of the conduct of the individual concerned. 44. In explaining its approach to the interpretation of article 3 of the European Convention on Human Rights the Court first noted that hitherto it had been taken to be concerned with situations where the alleged maltreatment emanated from intentionally inflicted acts by public authorities in the country of destination. It held that this did not however prevent it from considering the application of article 3 in other contexts such as those where the source of risk of prohibited treatment stems from facts which might not engage the responsibility of public authorities or which did not in themselves infringe article 3. The issue, accordingly, was whether the removal of the applicant would be contrary to article 3 “in view of his present medical condition”. The Court noted the advanced stage and terminal and incurable nature of his illness and the recent deterioration. It acknowledged that his limited quality of life was due to the availability of sophisticated treatment and medication in the UK. It also noted that withdrawal of such treatment would have dramatic consequences for him and that his removal would hasten his death. The Court concluded:-
46. Counsel on behalf of the applicant in the present case urges that the situation of the applicant is closely, if not fully, analogous to that of the applicant in the D. v. United Kingdom (1997) 24 EHRR 423 case. In the judgment of the Court it is nevertheless important to bear in mind the quite exceptional circumstance upon which that application of article 3 of the European Convention on Human Rights was clearly based. The applicant in the case was already on the verge of certain death and his condition was already terminal. He had become dependent not so much for survival as much as for palliative treatment upon the care he had received in prison in the United Kingdom. Because of the absence of such care facilities in St. Kitts the very transfer of the applicant was judged to have been such as would have exposed him unjustifiably to a more distressing death than he would inevitably face in the United Kingdom. In the view of this Court, it was that acceleration and elevation of the level of distress in his inevitable death that is the rationale of the finding of exposure to inhuman treatment in D v. United Kingdom. B.B. v. France.
49. As already mentioned, the rationale of the judgment in D. v. United Kingdom (1997) 24 EHRR 423 received detailed consideration by the House of Lords in the case of N. v. Secretary of State for the Home Department [2005] 2 AC 296 and its invitation to the Strasbourg Court to clarify the concept of “exceptional circumstances” was responded to by the Strasbourg Court in its judgment of 27th May, 2008, in N. v. The United Kingdom (2008) 47 EHRR 39. 50. The Grand Chamber of the Strasbourg Court was divided as to its response and as to whether the case in question was distinguishable from D. v. United Kingdom (1997) 24 EHRR 423, with three members of the Grand Chamber delivering a dissenting opinion. In explaining the court’s approach to the question of “exceptional circumstances” the majority first recalled the general principles regarding article 3 in expulsion cases:
(b) In the case law of the Strasbourg Court and in international law it is well established that, subject to treaty obligations, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion may give rise to an issue under article 3 and hence engage the responsibility of a Contracting State under the Convention where substantial grounds are shown for believing that the person concerned, if deported, faces a real risk of being subject to treatment contrary to article 3 and in that event the Article implies an obligation not to deport the person in question to that country. (para. 30) (c) Article 3 applies principally in order to prevent deportation or expulsion where the risk of ill treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-State bodies when the authorities are unable to afford the applicant appropriate protection. ( para. 31) 52. The Bensaid v. U.K. (2001) 33 E.H.R.R. 205 case concerned an Algerian national who was schizophrenic and had been receiving treatment for some years in the United Kingdom. There the court found that the applicant faced a risk of relapse even if he stayed in the United Kingdom and while his removal to Algeria would increase that risk, the fact that his circumstances in Algeria would be less favourable than those in the UK was not decisive from the point of view of article 3. It said:
54. A similar conclusion was reached in Amegnigan v. The Netherlands (No. 25629/04 of 25 November 2004) where the applicant had been receiving ARV treatment in the Netherlands and faced a similar risk of deterioration if the therapy was interrupted. The application was declared manifestly ill-founded on the ground that the applicant had not reached the stage of full blown AIDS and was not suffering from any HIV-related illness. 55. The majority judgment then summarised the principles to be drawn from that case law and the essential points can be paraphrased as follows:
(b) The fact that an applicant’s circumstances including life expectancy would be significantly reduced by removal from the Contracting State is not sufficient in itself to give rise to breach of article 3. (para. 42) (c) The D. v. United Kingdom (1997) 24 EHRR 423 case was very exceptional in that the applicant was critically ill and close to death and could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or to provide him with a basic level of food, shelter or social support. (para. 42) (d) The court did not exclude that other very exceptional cases with compelling humanitarian considerations would arise and considered that it should maintain the high threshold set in the D. v United Kingdom case which it regarded as “correct in principle” given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but from the naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. (para. 43) (e) The Convention is essentially directed at the protection of civil and political rights although many have implications of a social or economic nature. Inherent in the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. (para. 44) (f) While it is necessary given the fundamental importance of article 3 in the Convention, for the court to retain a degree of flexibility to prevent expulsion in very exceptional cases, article 3 does not place an obligation on the Contracting State to alleviate such disparities through the provision of free and unlimited healthcare to all aliens without a right to stay within its jurisdiction. A finding to the contrary would place too great a burden on the contracting States. (para. 44)
58. As already mentioned, the inherent difficulty and delicate balance in this issue is evident from the fact that three of the members of the Grand Chamber gave a dissenting opinion in which they characterised the approach of the Commission in the case of B.B. v. France 9 March 1998, RJD, 1998 VI, p2596 as “humane but reasonable” and the view of the majority of the Grand Chamber as constituting “a clear setback”. The dissenting members of the Grand Chamber were not convinced that the facts of N. v. The United Kingdom (2008) 47 EHRR 39 were so different as to call for a different solution from that pronounced in D. v. United Kingdom (1997) 24 EHRR 423. They expressed the view that the court should have found that there was a potential violation of article 3 precisely because “there are substantial grounds to believe that the applicant faces a real risk of prohibited treatment in the country of proposed removal”. They said:-
59. Finally, it is useful to note that the minority members of the Grand Chamber also criticised the court for declining to examine the complaint under Article 8 of the Convention. They said that the court should:
60. Having regard to this review of the Strasbourg case law, it seems to this Court that in its application to expulsion cases, it remains the primary function of article 3 to provide protection against threat to life or person from intentionally inflicted acts by public authorities in the country of destination or by non-state actors from whom the public authorities are unable or unwilling to provide protection. This does not however exclude the article being relied upon to provide protection where the threat to life takes the form of exposure to inhuman treatment resulting from the absence of necessary treatment for an existing and life threatening illness which has reached a critical stage and which is irreversible if currently provided treatment is withdrawn. It seems to this Court that the essential elements which determine whether or not a violation of article 3 of the Convention is potentially raised by a proposal to deport a third country national who is illegally present in a Contracting State and has there been receiving treatment for a life-threatening condition includes at least the following:-
(ii) Secondly, the practical consequences for the person’s health of removal to the country of origin including consequences of interruption of the treatment and the limited availability or non-availability of adequate treatment in the country of origin; (iii) the personal circumstances of the individual including age, sex, family and the conditions likely to be faced in the country of origin; (iv) the particular context in which the person has received treatment in the host State including the length of time and whether the person’s presence in the State was originally lawful, or for the purpose of claiming asylum; (v) whether the diagnosis of the medical condition predated the person’s arrival in the host State; (vi) whether the individual is physically fit to be deported and not likely to suffer a material worsening of the condition as a result of the transportation itself; and (vii) whether any anticipated deterioration in the condition is likely to occur whether or not a deportation takes place. The Examination of the File Memorandum. 63. Having regard to the grounds for which leave was granted, parts of the memorandum which are particularly relevant are those evaluating “Humanitarian Considerations”; the prohibition of refoulement in s. 5 of the Act of 1996; and the consideration given to article 3 and Article 8 of the European Convention on Human Rights. As the various headings mentioned above are addressed separately there is a degree of repetition in the material examined and the reasons given. Nevertheless, it is abundantly clear that the authors of the memorandum have very squarely addressed the essential elements of the claim made in the representations namely, the medical evidence as to the applicant’s vulnerable health condition; the prognosis as to its future course; the risks posed by interruption of ARV treatment by deportation, and the claim that continuing treatment would be unavailable to her in Nigeria. 64. Thus, under the heading of “Humanitarian Considerations” and the consideration of the prohibition of refoulement, the medical reports of Dr McConkey, and Drs. Lynch and Giller are expressly quoted and that of Dr. McConkey in considerable detail. In consideration of article 3 of the European Convention on Human Rights the representations based upon the alleged lack of family support for the applicant in Nigeria is acknowledged and the concerns of Dr. Giller in that regard are noted. The representation based upon the risk to the applicant of facing discrimination and stigmatisation as a result of her medical condition is also recorded. Accordingly, insofar as the validity of the contested decision depends in part upon the degree to which it flows from its premise, namely, from the consideration given to the representations made, the Court is satisfied that the decision could not be said to have ignored or understated the core elements of the claim as originally made based upon the applicant’s medical condition, the non availability of equivalent treatment in Nigeria and the risk of exposure to discrimination and stigmatisation. 65. In the judgment of the Court, the memorandum when read as a whole indicates that the central response given to the representations made in respect of the applicant’s vulnerable medical condition and the absence of treatment in Nigeria is effectively based upon three elements which are repeated under the various headings. The first is that the applicant, while HIV positive, has responded well to the treatment she has received in the State and is therefore, having regard to the approach of the Convention cases mentioned above, not now in a critical state or in any state of immediate danger to her life. The assessment of Dr. McConkey is quoted that “she has done very well with treatment of HIV and this is likely to continue for the future”. More importantly, however, extensive reliance is based upon the opinion expressed by Dr. McConkey that the applicant had in fact been in receipt of effective treatment in Nigeria prior to her arrival in Ireland. This significant expert opinion is relied upon to support the conclusion reached based upon extensive examination of country of origin information and to underpin the proposition which rejects a fundamental assertion of the representations namely, that the applicant would not be able to access appropriate ARV treatment in Nigeria upon repatriation. 66. Clearly, the expert opinion expressed by Dr. McConkey in his report of the 17th July, 2007 (which was, after all, submitted on the applicant’s behalf) was evidence upon which the respondent was entitled to rely. In the affidavit grounding the affidavit for judicial review (see para. 8) the applicant is “adamant” that she had not received ARV treatment in Nigeria and did not know before her arrival here that she was HIV positive. She goes no further, however, in elucidating her medical history in Nigeria, nor in giving any explanation as to how or when she believes she contracted this condition. 67. In addressing the “humanitarian considerations”, the memorandum identifies the issue as being whether “further treatment for HIV and AIDS patients would be available to the applicant in Nigeria. It has been submitted by the applicant . . . that this treatment would not be available to her”. That part of the memorandum then proceeds over five pages to cite country of origin information by way of response. Some of that material might well be criticised as not being obviously relevant in that it includes citations covering “treatment for cancer”; “treatment for tuberculosis” and “mental health”. It does however include extensive quotations from a UK Home Office Report on Nigeria dated the 15th January, 2010, which compiles material from various sources relating to HIV/AIDS in Nigeria. This included para. 27.06 of a citation from the US State Department Report of 2008, which recorded that there was
71. This issue is dealt with again in the consideration of the prohibition of refoulement. The medical reports are quoted in some detail and the view is expressed:
74. As already mentioned, the fundamental claim based upon the applicant’s current medical condition and the alleged non-availability of ARV treatment in Nigeria is again addressed in the consideration of the representations under articles 3 and 8 of the European Convention on Human Rights. Again, reliance is placed upon the opinion of Dr. McConkey that the applicant had been receiving effective treatment in Nigeria. The observation is made:
76. The memorandum introduces this material with the summary:
- Increased HIV awareness among the general population and most at risk populations. - Increased coverage in prevention of mother to child transmission services. - 17 states action committees out of the 36 states have been transformed to agencies leading to increased ownership and participation. - Provision of more centres for counselling and testing. - Increased access to anti retro viral drugs. - Gender mainstreaming into the HIV national response. - Development of policy documents such as the National Strategic Framework Plan for 2010/2015. - Scale up of ongoing national programmes.”
80. When the memorandum is read as a whole, it is clear to the Court that the fundamental response to the claims made in the representations is as follows. It is fully recognised that the applicant has the HIV infection; that she is in need of ARV treatment and that without it her condition is liable to deteriorate in a manner described by Dr. McConkey. It is considered, however, that this is not one of the exceptional cases which attracts an infringement of article 3, because (a) the applicant has responded well to treatment and is not at present in a critical condition; and (b) based upon country of origin information and most particularly upon the fact that the applicant is considered to have already received ARV treatment in Nigeria, it is judged that treatment would be available to her there and that she is accordingly, not exposed to the risk that returning her to Nigeria will necessarily bring about a life threatening deterioration in her medical condition. 81. It is necessary therefore to consider whether that response to the representations as the basis for the decision to make the deportation order is lawful having regard to the manner in which its conclusions have been reached and the material upon which it is based, in light of the grounds upon which leave to challenge the decision has been granted. 82. Ground No. 1: The decision is vitiated by material error of fact, namely that the applicant’s concerns regarding access to ARV therapy were “unfounded”. This ground derives from para. 17 of the judgement of Hogan J. granting leave where he said: “Given the centrality of the question of whether [the applicant], can effectively access such treatment if deported, there are substantial grounds for contending that the memorandum contains a material error of fact (cf. by analogy K. v. Refugee Appeals Tribunal [2011] IEHC 301”. The judgment there referred to is also a judgment of Hogan J. in which he reaffirmed an earlier judgment to the effect that the Court has jurisdiction to quash an administrative decision for error of fact only where there have been serious errors of fact such that, taken cumulatively, they amount to an error of law, or where the administrative body thereby effectively assumes a jurisdiction which it does not otherwise have. 83. The ground thus formulated in para. 17 of the judgment of Hogan J. appears to be directed primarily at the part of the conclusion found in the memorandum in respect of s. 5 of the Act of 1996 (Prohibition of Refoulement) at p. 12: “Based on all of the information on file, including medical reports and country of origin reports it is clear that her fears of not receiving treatment for her condition in Nigeria are unfounded”. In the view of the Court, it is questionable whether it is correct to characterise this conclusion as being a finding of fact in the legal sense. Rather, it is a judgment or assessment made by the authors of the memorandum as to the objective basis for the subjective fear expressed on behalf of the applicant having regard to the contents of the medical and country of origin information. Whatever criticisms might be made of the treatment of country of origin information in detail, of the selectivity of the information consulted and the conclusions which have been drawn from it, the Court is satisfied that so far as essential matters of fact are concerned, the overall body of country of origin information both submitted on behalf of the applicant and cited in the memorandum clearly demonstrates that, as a matter of fact, ARV therapy is actually available in Nigeria. The real issue in dispute concerns the reality of the applicant’s prospect of getting access to treatment having regard to the available information as to conditions in the country. In other words, has it been shown that the country of origin information taken as a whole demonstrates that the deficiencies in the treatment facilities in Nigeria are so serious and widespread that it is inevitable or at least highly probable that the applicant will be deprived of treatment with the consequences advised by Dr. McConkey? In that regard the present case can clearly be distinguished from that of D. v United Kingdom (1997) 24 EHRR 423 where there was evidence that no equivalent treatment would be available to D. on repatriation to St. Kitts. (See para 43 above) 84. The information undoubtedly indicates that in Nigeria the need for treatment materially outstrips available therapy and illustrates the major challenges faced by Nigerian authorities in that the HIV/AIDS problem is widespread and the governmental efforts to meet the challenge which it poses have fallen short of expressed targets notwithstanding the progress that has been made. Nevertheless, the position remains that, as a matter of fact, very large numbers of victims do have access to treatment notwithstanding the problems of cost and availability and, in the judgment of the Court, the Minister was entitled to take into account the clear expert opinion that this applicant had actually availed of such treatment in Nigeria prior to her arrival in the State. This too is a factor which distinguishes this case from that of D. v United Kingdom (1997) 24 EHRR 423. In the judgment of the Court, accordingly, this ground has not been made out. The sentence in the memorandum from which it derives is not a finding of fact in the legal sense, but an evaluation of the objective basis of the applicant’s expressed subjective fear as to the availability to her of treatment in Nigeria should she return there. In effect the argument made on her behalf has been that it is wholly unreasonable to suppose that there is any possibility of her having access to continuing treatment. The Minister’s response is that the available information indicates that substantial numbers of infected persons have in fact obtained access to such treatment and that given that this applicant has in the past been one of those who did so succeed, it is reasonable to expect that she will do so again. In the judgment of the Court this is a conclusion which was reasonably open to the Minister on the basis of the country of origin information and the evidence as to the applicant’s own personal history and medical condition. 85. As already mentioned, the argument as to mistake of fact and as to the deficiency in the treatment of country of origin information is directed also at a specific mistake said to be made in the reliance placed on the UNGASS report. (See para. 76 above). The figures there quoted to the effect that “Already at least 60% of adults and 60% of children are receiving ART “appear to have been taken from part 4.4 of the Report “HIV Prevalence amongst Most at Risk Population” in which at pages 59-60 are set out a series of “Priorities for 2010-2012”. Of these, Priority B is “Treatment of HIV/AIDS and related conditions” and the first bullet point then listed is: “At least 60% of eligible adults and 60% of children are receiving ART based on national guidelines.” It appears clear both from the heading to the section in question and the fact that the remaining bullet points begin “To provide at least…” and “To implement TB/HIV …etc” that these are the targets the authorities set for themselves for that period so that there has indeed been an error on the part of the writer of the memorandum in quoting those figures if they have been taken as being a measure of the current actual availability of access to ARV therapy in Nigeria to those with the HIV infection. In the earlier Chapter 3 of the Report the figures for measurement of the actual treatment position are given under the heading “Status of the Epidemic”. In Table 2 at part 3.2 the total figure for persons living with HIV/Aids is given as 2.98 million and the total number requiring ARV therapy is estimated to be 754,375 adults and 103,080 children. In Table 3 the percentage of adults and children with advanced HIV infection receiving ARV therapy is given as 34.4%. That figure is then given in part 3.8 as 34.2% and is commented upon to the effect that while it represents a significant improvement coverage over the figure measured in 2007, “…Nigeria needs to work harder to reduce the 65.8% treatment gap (those needing ART-those on treatment).” 86. In the judgment of the Court this error in misreading the ambiguously worded bullet point from Priority B in the Report does not amount to a mistake of fact which, in the overall context of the appraisal made in the memorandum, is of such materiality as to vitiate the decision and require that it be quashed. (See in that regard the judgment of Hogan J. in K. v Refugee Appeals Tribunal [2011] IEHC 301 referred to at para. 82 above and the judgment of Peart J. in Da Silveira v Refugee Appeals Tribunal (Unreported, High Court, Peart J., 9th July 2004) In this regard it is important, in the view of the Court, to bear in mind the nature of the issue before the Minister under s. 3 of the Act of 1999. The applicant has been definitely determined not to be at risk of persecution or serious harm if repatriated to Nigeria. She is afforded an opportunity to make representations as to why the discretion ought to be exercised in favour of permitting her to remain temporarily on humanitarian grounds. In essence the plea made is that her circumstances and medical condition are such that returning her to Nigeria would expose her to inhuman treatment by putting her life at risk because the necessary treatment would be unavailable to her to prevent that outcome. The Minister is not however under an obligation to enter into a debate on that issue or to rebut or disprove every proposition advanced on her behalf in support of the plea. He is obliged to consider it fairly and objectively and to satisfy himself by reference to reliable and current information that the conditions are not such as would make it probable that the outcome asserted will necessarily transpire. So far as facts were concerned, the issue before the Minister was not the quantification of the precise percentage of actual access to treatment by those in need of it but the more general assessment of likely prevailing conditions relating to such treatment and whether they bore out the assertion being made namely, that there was a real likelihood that the applicant would be unable to get treatment. In the judgment of the Court it cannot be said that the overall appraisal made in that regard in the memorandum has been significantly vitiated by the mistaken citation of the 60% access figure having regard to the facts that ARV treatment is actually available; that the figure of 34% represents a doubling of the level of availability in 2007 and that the applicant herself was considered to be one of those who had actually received treatment before leaving Nigeria. 87. The reliance placed on the UNGASS report has also been criticised by the applicant on the basis that, as a report from the Nigerian Government it cannot be taken to be objective. Although no particular content of the report has been pointed to in support of this assertion – indeed, on the contrary, it is relied upon by the applicant as evidence of the true “accessibility gap” for ARV treatment (see para. 85 of this judgment) - the report is a formal report to the United Nations by a member state in compliance with its obligations to the General Assembly on foot of the UNGASS Declaration of Commitment on HIV/Aids to the Secretary General. It is a document which draws on information from all the agencies involved in tackling the epidemic in that country (See para. 77 above). It acknowledges the reliance of Nigerian agencies on the support of UN and international bodies in confronting its challenges. In the absence of any specific proof of falsity or bias in the information or statistics presented by the Nigerian authorities in the report, the Court considers that there is no basis for questioning the UNGASS Report as lacking in objectivity or as other than an up-to-date and authoritative source of information as to current conditions in treating HIV sufferers in Nigeria and the progress made in that regard. 88. Ground No. 2: The Minister’s reasoning was deficient “in the Meadows sense”. This too appears to derive from para. 17 of the judgment of Hogan J. immediately following the reference to the case of K. v. Refugee Appeals Tribunal [2011] IEHC 301, where he says: “It could also be said that there are substantial grounds for contending that this reasoning does not meet the requisite Meadows standard”. This seems to be a reference to the reasoning in the memorandum which concludes that the applicant’s fears about the interruption of her ARV therapy in this jurisdiction and its non -availability to her in Nigeria was unfounded. It is not immediately clear to this Court what the “requisite reasoning standard” of the Meadows v. Minister for Justice [2010] 2 IR 701 case requires. In this Court’s understanding, the ratio of the majority judgment of the Supreme Court in that case is that a clear disproportionality in the impact of an administrative decision can constitute “manifest unreasonableness” for the purposes of administrative law and is thus to be taken as coming within the bounds of the Court’s jurisdiction to annul an administrative decision on grounds of unreasonableness (The State (Keegan and Lysaght) v. Stardust Victims Compensation Tribunal [1986] I.R. 642). The essential consideration in Meadows v. Minister for Justice [2010] 2 IR 701, it seems to the Court, was not so much the establishment of a particular standard of reasoning, as a finding that there had been a total absence of reasoning in the sense that the decision maker had been presented with evidence of a risk of subjection to female genital mutilation upon repatriation and had rejected the representation with a simple statement that “refoulement was not found to be an issue…”. Whatever other criticisms may be made of the details of assessment in the contested decision in the present case, it cannot credibly be said that there is anything in the nature of a deficiency in the sense of the non-existence of any intelligible explanation as to why the representations have been rejected. As already indicated in the earlier parts of this judgment, the memorandum addresses and repeatedly revisits the core elements of the complaint and answers them by reliance upon country of origin information and the expert evidence that the applicant had already received effective treatment for her condition prior to departing from Nigeria. In the judgment of the Court, therefore, there has been no deficiency in any “Meadows sense” in the manner in which the reasoning upon which the memorandum is based has been exposed and explained. 89. Ground No. 3: The Examination of the file in relation to the Nigerian material was highly selective. It is, in a sense, true that the consultation of country of origin information has been “selective” but that, in the view of the Court, is the inevitable consequence of the very nature of the exercise which is required of decision-makers under s. 3 of the Act of 1999. What is really being alleged here is that the selection of material has been “highly selective” in the pejorative sense of having been deliberately manipulated or contrived with the view to supporting the conclusion reached in rejecting the representations and justifying the making of the deportation order. In the judgment of the Court, this ground has not been made out. It is explicitly clear from the memorandum that the decision makers have taken into account a very wide ranging compilation of country of origin information on the issue as to the availability of ARV therapy in Nigeria including the material submitted with the representations on behalf of the applicant. As has already been pointed out, the memorandum is almost 40 pages in length of which more than half is devoted to the consultation of country of origin information. As has also already been indicated, the material includes citations confirming the incidence of widespread discrimination against HIV/AIDS sufferers and their stigmatisation in areas of employment and healthcare; it also records the extensive gap between the ambitions of the Nigerian authorities to tackle the huge challenges they face and the actual results achieved to date. In reality, the arguments advanced under this heading are to the effect that there has been bad faith on the part of the decision makers in the evaluation they have made and the representations. In the judgment of the Court, that implication is unfounded and the overall balance struck – whatever may be said about specific flaws of detail – cannot be attributed to any premeditated manipulation of the consulted material with a view to justifying a preordained outcome. 90. Ground No. 4: The “specialised material” relied upon by the Minister ought to have been disclosed to the applicant in advance in compliance with fair procedures. In the judgment of the Court, this ground has not been made out either. As already pointed out above, the fundamental responsibility of the decision maker in these cases is to determine whether, in light of the representations made, there exists a genuine risk to the applicant of being exposed to the claimed inhuman treatment because of the conditions prevailing in the country of repatriation if the deportation is implemented. It is therefore incumbent on the decision-makers to inform themselves as to the prevailing social, political, economic, security or other considerations prevailing in the country of destination which are relevant to the claims or fears expressed on behalf of the prospective deportee. Given that there is invariably some lapse of time between the making of the representations on the one hand and the final determination of the application on the other it is incumbent on the decision-makers to consult the most up-to-date information available as to the circumstances likely to be faced by the deportee when implementation takes place. There are often, as the cases in the Asylum List frequently demonstrate, instances where very significant political, military and security changes can occur in the country of destination in that interval. The regime from which the asylum seeker has fled may change at short notice. Where country of origin information consulted by the decision-maker discloses facts material to the very basis of the assertion of a risk of mistreatment for the purposes of s. 5 of the Act of 1996, there may well be an obligation upon the decision maker to give notice of the material in question for the purpose of comment or rebuttal before a decision is made. That is not the case here. Once it has been definitively determined that a prospective deportee is not at risk of persecution or serious harm so that the representations are effectively a plea ad misericordiam to be permitted to remain on humanitarian grounds, the function of the decision maker under s. 3 of the Act of 1999 is to be satisfied that the relevant conditions are not such as to amount to inhuman treatment given the condition and circumstances of the deportee. The procedure for representations under s.3 of the Act of 1999 is not an adversarial exercise in which the prospective deportee is to be taken as proving a particular case for leave to remain and that the Minister is obliged to refrain from making an order unless that case is disproved by him. As already described in the extract from the judgment of Fennelly J. in Meadows v. Minister for Justice [2010] 2 IR 701 at para. 14 above, the Minister is asked to consider a request for permission to remain in the State and once satisfied that the circumstances are not such that the prohibition on refoulement applies, (or in a case such as the present, the possibility of infringement of Convention rights,) he is exercising a policy discretion conferred upon him by the legislation. The addressee of a deportation proposal has no right, as such, to be granted leave to remain but the Minister has an obligation by virtue of the prohibition on refoulment and the protections afforded by the relevant Convention provisions to satisfy himself that a refusal to grant leave will not infringe those provisions. Once it is apparent that the Minister has so satisfied himself by considering the representations and that his conclusion to that effect is rational, reasonable (including reasonable in the Keegan /Meadows sense,) and not inconsistent with information relied upon as to conditions in the country of repatriation, his decision cannot be interfered with by judicial review. 91. The central issue in this case has been the availability of ARV therapy to HIV sufferers in Nigeria and that, as the country of origin information indicates, is a continually evolving (and improving) situation. It is an enormous problem for the Nigerian authorities and it is being addressed by them with the aid of a wide range of national agencies and international organisations both charitable and state sponsored. All of the material by way of country of origin information relied upon in the memorandum is material cited from publicly available documentation including, for the most part, material posted upon the websites of government agencies and the main humanitarian organisations at international level including those of the United Nations and its agencies. The complaint is made that some of the sources consulted by the Minister were available only on subscription. In the judgment of the Court that fact of itself does not give rise to an obligation to put such material to an applicant for comment. It all depends on the content and effect of the information in relation to the assertions made in the representations. As the respondents have pointed out, in actual fact the subscription based material consists of two items one of which was also available on the internet (the extract from the “African Journal of Aids” (August 2007) and an article by Petersen on access to drugs in Nigeria dating from 2002, the impact of which in the analysis was clearly marginal and remote. Furthermore, all of it appears to pre-date the end of April 2010 when final representations were being lodged on behalf of the applicant. In the judgment of the Court, in the absence of reliance upon particular material which contradicts any specific and essential statement of fact relied upon by an applicant which is pertinent to the applicant’s personal situation or condition, there is no obligation upon the respondent to enter into consultation with an applicant or to give advance notice for the purpose of comment or rebuttal of publicly accessible material of this general character, intended to be relied upon in setting out the grounds for rejection of representations and for making a deportation order. (See in that regard the judgment of Finlay-Geoghegan J. in Muresan v Minister for Justice & Others; [2004] 2 I.L.R.M. 364 and by analogy the judgment of this Court in A.A.[Iraq] v. Minister for Justice & Others [2012] IEHC 222). 92. Contrary to the submission made on behalf of the applicant, there is no obligation on the Minister to “engage with and reconcile” divergent country of origin information. In this case the material submitted with the various letters making representations amounted in total to in excess of 550 pages. In the view of the Court, the Minister in making his decision is not obliged to furnish a narrative response which is commensurate in length with the case thus made. To enable an applicant to understand why the deportation order is made and the Court to exercise its judicial review function, what is required is that the statement of reasons given should adequately indicate that the substantive case made for leave to remain has been fairly considered and that, where a claim of risk to life has been raised by reference to conditions in the country of repatriation, the reasons for rejection of the claim are rational and, where necessary, supported by relevant, current and sufficiently authoritative information in relation to those conditions. 93. Ground No. 5: The applicant’s rights under Article 40.3.2 of the Constitution will be breached if deported to Nigeria. The answer to this ground has already been given in the analysis set out above (See paras. 27 – 36). In the judgment of the Court, for reasons there given, and subject only to any treaty or Convention obligations undertaken, the State has no constitutional responsibility for the continuing treatment of a non-national present without permission in the State who happens to be suffering from a potentially life threatening condition unless, at least, it is demonstrated that the very act or necessary consequence of expulsion and transfer to the country of origin will be likely to bring about the inevitable or accelerated and more distressful death of the person concerned. 94. Ground No. 6: The applicant’s rights under articles 3 and 8 of the European Convention on Human Rights are breached having regard to the Commission’s report in B.B. v. France 9 March 1998, RJD, 1998 VI, p2596. Again, the answer to this ground has already been given above. On the facts of this case, it was clearly open to the respondent to determine that this was not one of the “exceptional circumstances” which attract the application of the prohibition in article 3 in an illegal immigrant expulsion case. The applicant’s present medical condition is not critical. She is not at imminent risk of significant deterioration in health by reason only of repatriation to her country of origin. Admittedly, access to the ARV therapy she requires is more difficult and more costly in Nigeria, but it was open to the respondent to take into account in conjunction with the current country of origin information as to improved availability of treatment, and as a matter of significance, the opinion that she had actually already received such treatment in Nigeria before departure. The Convention does not extend to create an entitlement on the part of a non-national who is in the State without permission to be allowed to remain in the State for the purpose of availing of medical treatment. Moreover, as the applicant has been receiving treatment successfully such that she is not now in any critical condition and is fit to travel, it cannot be said that her right to life is jeopardised by the act of repatriation itself. In the judgment of the Court, this position is not altered by the other personal circumstances relied upon, namely her alleged absence of immediate family support in Nigeria. In fact the applicant has three adult children in Nigeria. Nor in the judgment of the Court is her position altered by the fact that the applicant has additional complications of cognitive impairment and the fact that HIV sufferers can be shown to be at risk of stigmatisation and discrimination due to local prejudices. In that regard she will be in the same situation as her fellow Nigerian citizens facing similar problems. International law does not impose upon states an obligation to afford protection to individuals against the consequences of life threatening illness or popular prejudice save where the consequences are of such severity as brings the individual case within the protection afforded by the prohibition on refoulement or article 3 of the European Convention on Human Rights. Moreover, in the judgment of the Court evidence of popular prejudice involving possible discrimination and stigmatisation is only relevant for the purpose of the application of article 3 in the context of a “HIV/AIDS expulsion case” where it is shown to be so pervasive and effective as to make it probable that the deportee will be deprived of necessary medical treatment as a result. If Dr. McConkey’s expert opinion is accepted, the applicant has not been denied treatment on that basis in the past and there was therefore no reason for the Minister to suppose that she would be denied it on that basis in the future particularly having regard to the evidence before the decision makers as to the significant progress that has been made in combating the problem since she left Nigeria in 2006. 95. For the reasons already given above, the Court is satisfied that the present case does not give rise to the “exceptional circumstance” which brings into play a possible infringement of the right to protection of life under article 3 of the European Convention on Human Rights and is clearly distinguishable from the case of D. v. United Kingdom (1997) 24 EHRR 423 because of the non- critical state of the applicant’s medical condition, the assessment that continuing treatment will be available to her in Nigeria and particularly the reasonable conclusion that she had already received such treatment before leaving the country. 96. So far as concerns the claim of infringement of the right to protection of private life under article 8 of the European Convention on Human Rights, the case made is substantially the same as that advanced in respect of article 3. In the analysis of this part of the claim in the memorandum, the respondent has relied on the approach of Agbonlahor v. Minister for Justice [2007] 4 IR 309, where Feeney J. referred for guidance to the judgment of the House of Lords in the N. v. Secretary of State for the Home Department [2005] 2 AC 296 case, in which it had been held that a withdrawal of medical treatment which would shorten the appellant’s life expectancy did not bring about a violation of article 3. Feeney J. said:
99. In addressing these arguments it is necessary to bear in mind the distinction between the two articles. Article 3 (quoted above at para. 38) is absolute in the obligation undertaken by the Contracting States. In expulsion and deportation cases this means that deportation cannot be implemented once it is clear that the repatriation will result in the life of the deportee being put at risk and this is so irrespective of the reasons for the expulsion, including the conduct or criminal convictions of the person concerned, or the fact that the deportee is considered to be a threat to public security. 100. Article 8 on the other hand is qualified in its obligation:
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with 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.” 102. It is of course well settled in the case-law of the European Court of Human Rights that the protection afforded by article 8 will fall to be considered in expulsion/deportation cases and this may be so even where a reliance on the protection of article 3 has not succeeded. Thus, in Bensaid v. United Kingdom the Court said:
104. In considering such balancing assessments in the application of article 8 it is also important to bear in mind that, as already indicated above in relation to the case-law on article 3, the Strasbourg Court has always drawn a distinction in expulsion/deportation cases between those in which the person concerned has been lawfully resident in the Contracting State and has forfeited that entitlement or had it withdrawn for reasons of criminal activity or threat to public order or security on the one hand; and those in which the individual has been present illegally (See, for example, Ezzouhdi v. France (2001) ECHR 85; Boultif v. Switzerland (2001) 33 EHRR 50. The present case, obviously, comes within the latter category. 105. As the memorandum recognised, the repatriation will disrupt the applicant’s private life insofar as it has been established in the State since her arrival in November 2006. Given that all of her private and family life as an adult prior to that had been lived in Nigeria and that she still has three adult children there, it could not be said to be irrational, unreasonable or disproportionate for the Minister to conclude that her deportation in the interests of maintaining the integrity of the immigration system would not constitute an infringement of article 8. Such private life as she may have lived in the State has been temporary and tentative pending the asylum application. Her access to the medical treatment has been possible for her out of humanitarian consideration and not as of entitlement as a lawful resident or settled migrant. Her position in that regard is therefore significantly different from that of a settled migrant whose deportation would sever well established social ties which form part of the matrix of private life. If the interference with the health facet of her private life has been reasonably judged not to give rise to an infringement of article 3, it cannot, in the judgment of the Court, be said to be an unreasonable evaluation for the purpose of article 8 para. 2 for the Minister to have concluded that the interference with her private life as it is established at the time of making the contested decision, was necessary in the interests of immigration control. Nor in the judgment of the Court would the evaluation be any different by reference to the private life it is said the applicant will have on return to Nigeria. In that regard she will be resuming the private life she led prior to her voluntary abandonment of it in 2006. In any event, in the judgment of the Court, the private life for which protection is afforded by article 3 is that led in the Contracting State. It is, as pointed out above, the protection against arbitrary or unjustified interference by public authorities. In deportation/expulsion cases the interference for the purpose of article 8 is that brought about by the making of a deportation order by the public authority of the Contracting State. That is the only private life in respect of which a Contracting State can be obliged to refrain from interference. In the judgment of the Court, the conclusion on article 8 in these circumstances was a conclusion which was clearly open to the Minister and an obviously reasonable one having regard to the circumstances of the applicant; her present medical condition; the information as to the availability of equivalent treatment in Nigeria and the short duration and provisional nature of her presence in the State. 106. For all of these reasons the Court is satisfied that the grounds for which leave was granted have not been made out and the judicial review application is therefore refused.
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