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United Kingdom Asylum and Immigration Tribunal
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Cite as:  UKIAT 8004,  UKIAT 08004
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AA (Article3 – HIV/AIDS) Chad CG  UKIAT 08004
Date of hearing: 5 February 2003
Date Determination notified: 10 April 2003
|Secretary of State for the Home Department||RESPONDENT|
13. The respondent was unaware at the time of his decision as to the appellant's state of health. I have read the reports of Dr Fairley with care. The letter of 10 April 2002 sets out background and treatment of the appellant's condition. He has a moderately impaired immune system and is receiving antiretroviral combination therapy. Without this treatment Dr Fairley considers that the virus would reactivate and continue to cause further damage to the immune system. Dr Fairley in his report of 11 June 2002 give slightly more detail in this regard. He explains that without treatment, the appellant would be at risk of an opportunistic infection or tumour within the following few months or years. He indicates that some of these infections may be fully treatable whereas other infections have a prognosis of weeks to months. On average most patients would have died within 2 to 3 years of an AIDS related illness. Dr Fairley also addresses the issue of life expectancy when a patient has the assistance of the present combination therapy. Dr Fairley cautious given the treatment is of relatively recent origin. He states that some patients have lived longer than 7 years and it is expected that they will live for many decades if not their normal life expectancy. He also points out that some patients may develop resistance to the medication and so succumb to the HIV infection.
14. It is against this background that I assess what treatment is available in Chad. The CIPU report is brief in this regard and is set out at paragraph 4.18. The RLC lodged a bundle of documents relating to the strategies and treatment of AIDS/HIV in Africa, all of which I have read and not just to join the portions highlighted . On page 4 of the bundle it appears that Chad is likely to join the UNAIDS programme known as Accelerated Access for procuring the anti-viral therapy (ARV). In other countries which have adopted this agreement it appears that a patient's socio-economic status is taken into account is considered before a decision is taken on whether they are eligible for treatment. The final paragraph on page 4 considers that while the UN's global fund has yet to make a difference 2002 is likely to see more donations to governments through this. On page 5 it is suggested that the African countries may start production of the drugs themselves in 2002. The conclusion is however, that most governments would find it impossible to treat a great proportion of their HIV population.
15. In 1999 2.69% of the adult population in Chad were estimated to have an HIV infection. The National Strategic Plan Against Aids for Chad is at page 19 of the bundle. 18 priorities are set out. ARV is not shown as a priority in the table but on page 25, one of the targets is to "Improve the management of HIV/AIDS using essential drugs at lower cost. It is also hoped to supply hospitals for the managements of HIV/AIDS hospitals. There is a target that by 2003, 100% of health structures will be able to manage HIV/AIDS. This policy document appears to bear out the report at page 4 that the government is looking to obtain essential drugs under the UNAIDS programme. On age 29, there is a press release that the World Bank had approved the second population and AIDS project which bears out the report at page 5 about further contributions being received. The report at page 31 is dated 1999 and refers to a programme due to close in 2001. It is clear that this has been continued or replaced. Having read al the material, it is clear the Government of Chad in conjunction with a number of organisations are taking the HIV aids situation most seriously and is not only addressing the issue of those already with HIV but also looking at preventing it in the first place by targeting those groups most at risk. Interestingly, in the year the report was written, HIV contracted through blood transfusions was given as nil. The appellant's case seems to be very much a "one off" according to health records. I do not accept that there is no funding in place or any will on the part of the government to assist those with AIDS. The picture is far more upbeat than the situation as presented by Mr Marshall on behalf of the appellant. I accept that the abrupt withdrawal of treatment could result in illness or death. It is not a case however, of no treatment being available but of treatment being one of a number of measures taken by the government. I accept that it may be the case that treatment in the UK may be considerably better in the UK in Chad but it does not follow from this that to return the appellant would be to put him at risk of treatment that fell within Article 3 of the Human Rights Convention. The appellant's doctor had diagnosed HIV but the appellant refused to believe him. The appellant did not therefore put himself in a position of knowing whether any treatment would have been offered. Certainly, the appellant does not now say, "The Doctor told me I was HIV positive but refused or was unable to treat me". The appellant has not yet developed AIDS, he has family in Chad who would be able to provide support. I had no evidence that he would be shunned. I am not satisfied the appellant can show substantial grounds for believing that there would be a real risk of his suffering inhuman and degrading treatment if now returned to Chad.
"I write to give my support to the above appeal and confirm that stopping HIV antiretroviral therapy will be detrimental to Ahmet's health."
"It is not disputed that the appellant is HIV positive and that he is receiving anti-retroviral treatment in the UK. The appellant contends that he suffers from AIDS. He argues that if returned to Chad, he would not be able to obtain the medication that he currently receives. Consequently he argues that as someone with an impaired immune system, he would become subject to opportunistic infections which would hasten his death."
"With regard to HIV/AIDS, Chad has demonstrated its political commitment and ownership in the efforts to reverse the spread of the epidemic. The government urged IDA to make it the key development objective in the banks country assistance strategy."
The report refers to an analysis of the health system in Chad carried out recently between the Ministry of Public Health and others. The analysis identified the weaknesses of the current health system and areas where improvements were needed. The Ministry had started to address the weaknesses as urgent priorities "because they will in effect block progress in the sector, will be a constant source of frustration for development efforts, and will jeopardise future efforts on the front of population and HIV/AIDS. As for the areas where improvement is still needed, the Ministry, which had taken steps for action and reform in certain areas, is starting a sustained action to develop health sector and put these improvements on a sustainable footing with the help of its partners…" Under the heading on page 6 of the report "AIDS Prevention and Mitigation" it is stated that the approach had been successful in increasing knowledge about HIV/AIDS and that today most Chadians know about the subject and the majority are aware about how HIV is transmitted. Many sectors and communities are presently involved in the HIV/AIDS Prevention and Mitigation activities. The report notes that the approach needed to be reinforced and be more focused in order to stop the progression of the epidemic. While there had been a notable improvement in recent years in terms of co-ordination more periodic and systematic mechanisms were required to involve all private sector stake holders and partners.
21. The AIDS epidemic had been spreading rapidly in Chad since 1986 but Chad's response to AIDS "has been rapid and determined even at a time [when] HIV prevalence was very low." The report states that as early as 1988 the National AIDS Control Commission was established, a body presided over by the Prime Minister. In 1994 seven Ministries participated in a national consensus workshop. The report goes on that the response in Chad to HIV/AIDS has been characterised by a broad partnership involving the government, NGOs, religious groups, civil society organisations, communities, people living with HIV/AIDS and local and international donors. Chad strengthened existing government entities responsible for implementing the mid-term plan and established a social fund to finance HIV/AIDS prevention and population activities. There was a national AIDS control strategic plan in 1999 building on previous AIDS programmes.
22. Miss Oliso acknowledges these matters but states that the appellant will not benefit as he has already got the illness. However, the report does indicate how very different the situation is from St Kitts. Quite apart from the fact that the appellant has family in Chad to support him, there are a number of other groups and organisations, governmental and non-governmental, who can no doubt provide some support. GlaxoSmithKline had introduced not for profit preferential prices for its HIV/AIDS medicines by up to 33%. Miss Olisso points out that the availability of the treatment is very low given the scale of the problem.
23. The Terence Higgins Trust points out that it is not always possible to predict the specific effects of withdrawing anti HIV therapy from a person with HIV. We have the letter from Dr Apaya that stopping HIV therapy "will be detrimental" to the appellant's health. We are invited to find that the appellant has AIDS on the strength of the document submitted in breach of the rules and late in the day. It is said that the appellant had responded very well to the treatment so far and that on his last testing his viral load was undetectable and that his CD4 count was rising. The drugs given to the appellant worked for approximately 2 years before resistance was developed. The doctor states that he had no evidence that the drugs were available in Chad (although he does not say that they were not available). It is the doctor's opinion that the immune system would further deteriorate if treatment was withdrawn "and he will no doubt be liable to opportunistic infections". The doctor believed this would make him ill and unlikely to live long.
24. We do share the concerns expressed by Miss Green about the shortness of this report quite apart from its late introduction into these proceedings. The appellant's position and circumstances do appear to us to be vastly different from those in D.
25. The Adjudicator went carefully through the evidence before her and reached conclusions which appear to us to be entirely correct. We have also reviewed the objective material and the fresh medical material. The Adjudicator commented that the appellant had not yet developed AIDS but we are far from confident that her decision would have been any different if the letter available to us had been placed before her.
26. It is right to stress that the threshold in these cases is high. D was an exceptional case. It is important that representatives should not encourage false hopes in the minds of appellants with HIV or even AIDS. The Court will and can only intervene in exceptional circumstances. It is not right or fair that appellants should have their expectations raised where their circumstances do not meet the demanding criteria that must be met for a successful outcome.
27. We consider that the Adjudicator correctly addressed herself on the issues in this case and correctly concluded as she did.
28. For the reasons we have given this appeal is dismissed.