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Appeal granted for Appellant whose Article 3 ECHR application (polycystic kidney disease) was refused (26 February 2020) (9 March 2020)

Date: 09/03/2020
Duncan Lewis, Immigration Solicitors, Appeal granted for Appellant whose Article 3 ECHR application (polycystic kidney disease) was refused (26 February 2020)

The Appellant is a 45 year old Nigerian national and is a sufferer of polycystic kidney disease, hypertension and hepatitis B since 2001. The Appellant’s mother died from the same condition when she was 50 years old. The Appellant started his haemodialysis treatment, three times a week, in May 2018.


Background

The Appellant claimed asylum on 7 September 2018 stating that if he was forced to return to Nigeria he would die in light of his medical condition and the inaccessibility and cost of haemodialysis in the Nigerian public healthcare sector. The Appellant’s claim for asylum was refused by the Respondent on 15 August 2019. The Respondent argued that medical treatment is widely available in Nigeria and that the Appellant’s condition had not reached a critical stage where it would be inhuman to remove him.

We appealed this decision and an appeal hearing was listed for 26 February 2020.


Legal proceedings

It was agreed during the proceedings that the Appellant would be treated as a vulnerable witness in light of his ill health. During cross-examination, the Appellant stated that dialysis can only be afforded by the wealthy in Nigeria and that he was an ‘average Nigerian’ who would never be able to afford this life-saving treatment.

We argued that the Appellant did in fact meet the high threshold of the N v SSHD [2005] UKHL 31, later endorsed in N v UK (2008) European Court of Human Rights case. We relied on two reports from the Appellant’s nephrologist in the UK who confirmed that should the Appellant not receive dialysis he would survive for fewer than two weeks. The nephrologist stated that although haemodialysis did not make the Appellant unfit to work, it would be virtually impossible for him to find work to fit around his three weekly haemodialysis treatments and that the Appellant would be further limited by fatigue.

We relied on a country expert report by Dr Aguilar who confirmed that haemodialysis is only really available in the private sector in Nigeria. Dr Aguilar stated that there are 149 dialysis centres over Nigeria both private and public, 600 dialysis machines and 160 nephrologists and that this is ‘grossly inadequate for the estimated 25 million Nigerians with chronic kidney failure’. Dr Aguilar said that even if the Appellant would be able to access haemodialysis treatment within the Nigerian Health Service, this would not happen quickly, he would have to re-register and process insurance, given the Appellant’s long absence from the country. Dr Aguilar confirmed that the Appellant would not have access to social insurance schemes in Nigeria as they are linked to employment.


Outcome
The Respondent relied on an updated Country Policy Information Note ‘Nigeria: Medical and Healthcare Issues’ dated January 2020. The Respondent asked the judge not to place any weight on Dr Aguilar’s report as he was not an expert on the Nigerian healthcare system and assistance for polycystic dialysis kidney sufferers in particular.

The judge refused to accept this submission stating that effectively, the statistics in Dr Aguilar’s report were the same as those in the Home Office’s Country Policy Information Note, which stated that ‘the treatment is ‘not economically accessible’ and on the facts the nephrologist ratio is 1 to 1,000,000 patients’.

The judge accepted the high cost of dialysis in Nigeria, the inaccessibility of publically funded dialysis and the lack of family that the Appellant would be able to support him financially.

The judge held that the Appellant would suffer inhuman and degrading treatment in violation of Article 3 ECHR and the appeal was allowed on human rights grounds.


Representation

The Appellant was represented by immigration solicitor Aleksandra Broom of the Dalston office. Shoba Gunamal, immigration consultant solicitor from the Dalston office carried out the advocacy.


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