In the case of D. v. the United Kingdom (1),

      The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:

      Mr  R. Ryssdal, President,
      Mr  C. Russo,
      Mr  A. Spielmann,
      Mr  J. De Meyer,
      Sir John Freeland,
      Mr  A.B. Baka,
      Mr  P. Kuris,
      Mr  U. Lohmus,
      Mr  J. Casadevall,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

      Having deliberated in private on 20 February and 21 April 1997,

      Delivers the following judgment, which was adopted on the
last-mentioned date:
Notes by the Registrar

1.  The case is numbered 146/1996/767/964.  The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number).  The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.

2.  Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9).  They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.


1.    The case was referred to the Court by the European Commission of
Human Rights ("the Commission") and by the Government of the
United Kingdom of Great Britain and Northern Ireland ("the Government")
on 28 October 1996 and 14 November 1996 respectively, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47).  It originated in an application
(no. 30240/96) against the United Kingdom lodged with the Commission
under Article 25 (art. 25) by a national of St Kitts, D., on
15 February 1996.  In the proceedings before the Commission the
applicant was identified only as "D.".  At the wish of the applicant
this practice was maintained in the proceedings before the Court.

      The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the United Kingdom recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46); the
Government's application referred to Article 48 (art. 48).  The object
of the request and of the application was to obtain a decision as to
whether the facts of the case disclosed a breach by the respondent
State of its obligations under Articles 2, 3, 8 and 13 of the
Convention (art. 2, art. 3, art. 8, art. 13).

2.    In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).

3.    The Chamber to be constituted included ex officio
Sir John Freeland, the elected judge of British nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 4 (b)).  On 29 October 1996, in
the presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr C. Russo, Mr A. Spielmann,
Mr J. De Meyer, Mr A.B. Baka, Mr P. Kuris, Mr U. Lohmus, and
Mr J. Casadevall (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43).

      Pursuant to Rule 36 of its Rules of Procedure, the Commission had
requested the Government not to deport the applicant and the Government
provided assurances to that effect. The Government was informed by the
Registrar on 29 October 1996 that under Rule 36 of Rules of Court A the
interim measure indicated by the Commission remained recommended.

4.    As President of the Chamber (Rule 21 para. 6), Mr Ryssdal, acting
through the Registrar, consulted the Agent of the Government, the
applicant's lawyer and the Delegate of the Commission on the
organisation of the proceedings (Rules 37 para. 1 and 38).  Pursuant
to the order made in consequence, the Registrar received the
applicant's and the Government's memorials on 9 January and
10 January 1997 respectively.

5.    In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
20 February 1997.  The Court had held a preparatory meeting beforehand.

      There appeared before the Court:

(a)  for the Government

     Mr  M. Eaton, Deputy Legal Adviser,
         Foreign and Commonwealth Office,                      Agent,
     Mr  D. Pannick QC,
     Mr  N. Garnham,                                         Counsel,
     Ms  S. McClelland,
     Mr  S. Hewett,                                         Advisers;

(b)  for the Commission

     Mr  J.-C. Geus,                                        Delegate;

(c)  for the applicant

     Mr  N. Blake QC,
     Mr  L. Daniel,                                          Counsel,
     Mr  A. Simmons,
     Ms  R. Francis,                                      Solicitors,
     Mrs N. Mole,                                            Adviser.

      The Court heard addresses by Mr Geus, Mr Blake and Mr Pannick and
also replies to questions put by two of its members.


I.    Particular circumstances of the case

   A.      The applicant

6.    The applicant was born in St Kitts and appears to have lived
there most of his life.  He is one of seven children.  One sister and
one brother moved to the United States in the 1970s and the rest of the
family appears to have followed at unspecified dates.  The applicant
visited the United States in 1989 to try to join his family.  During
his stay there he was arrested on 5 September 1991 for possession of
cocaine and subsequently sentenced to a three-year term of
imprisonment.  After one year, he was paroled for good behaviour and
deported on 8 January 1993 to St Kitts.

   B.      The applicant's arrival in the United Kingdom and
           subsequent imprisonment

7.    The applicant arrived at Gatwick Airport, London, on
21 January 1993 and sought leave to enter the United Kingdom for
two weeks as a visitor.  He was found at the airport terminal to be in
possession of a substantial quantity of cocaine with a street value of
about 120,000 pounds sterling (GBP).  The immigration officer refused
him leave to enter on the ground that his exclusion was conducive to
the public good and gave him notice that he would be removed to
St Kitts within a matter of days.

      However, after being arrested and charged, the applicant was
remanded in custody and subsequently prosecuted for being knowingly
involved in the fraudulent evasion of the prohibition on the
importation of controlled drugs of class A.  He pleaded guilty at
Croydon Crown Court on 19 April 1993 and was sentenced on
10 May 1993 to six years' imprisonment.  He apparently behaved well
while in H.M. Prison Wayland and was released on licence on
24 January 1996.  He was placed in immigration detention pending his
removal to St Kitts.  Bail was granted by an adjudicator on
31 October 1996 after the Commission's report had been made public.

   C.      Diagnosis of AIDS

8.    In August 1994, while serving his prison sentence, the applicant
suffered an attack of pneumocystis carinii pneumonia ("PCP") and was
diagnosed as HIV (human immunodeficiency virus)-positive and as
suffering from acquired immunodeficiency syndrome (AIDS).  The
infection appears to have occurred some time before his arrival in the
United Kingdom.

9.    On 3 March 1995, the applicant was granted a period of
compassionate leave to be with his mother whose air fare to the
United Kingdom to visit him had been covered by charitable donations.

10.   On 20 January 1996, immediately prior to his release on licence,
the immigration authorities gave directions for the applicant's removal
to St Kitts.

   D.      The applicant's request to remain in the United Kingdom

11.   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 since his removal to St Kitts would
entail the loss of the medical treatment which he was currently
receiving, thereby shortening his life expectancy (see paragraphs 13
and 14 below).  This request was refused on 25 January 1996 by the
Chief Immigration Officer.  In his letter of refusal addressed to the
applicant's solicitors the Chief Immigration Officer stated:

      "In reaching this decision full account was taken of paragraph 4
      of the Immigration and Nationality Department B Division
      Instructions regarding AIDS and HIV-positive cases.  You will be
      aware that paragraph 4 of this instruction which relates to
      persons whose applications are for leave to enter the
      United Kingdom states [see paragraph 27 of the judgment below]
      ...  While we are saddened to learn of Mr D[...]'s medical
      circumstances we do not accept, in line with Departmental Policy,
      that it is right generally or in the individual circumstances of
      this case, to allow an AIDS sufferer to remain here exceptionally
      when, as here, treatment in this country is carried out at public
      expense, under the National Health Service.  Nor would it be fair
      to treat AIDS sufferers any differently from others suffering
      medical conditions ..."

   E.      Judicial review proceedings

12.   On 2 February 1996, the applicant applied unsuccessfully to the
High Court for leave to apply for judicial review of the decision to
refuse him leave to enter.  On 15 February 1996, the Court of Appeal
dismissed his renewed application.  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 Mr D.'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 paragraphs 27 and 28 below).  As to the applicant's
argument that the Home Office acted unreasonably or irrationally in not
acceding to the compassionate circumstances of his plea,
Sir Iain Glidewell stated in his judgment:

      "Nobody can but have great sympathy for this applicant in the
      plight in which he finds himself.  If he is to return to St Kitts
      it seems that he will be unable to work because of his illness.
      His expectation of life, if the medical evidence is correct, may
      well be shorter than it would be if he remained under the
      treatment that he is receiving in the United Kingdom, and in many
      ways his plight will be great.  On the other hand he would not
      be here if he had not come on a cocaine smuggling expedition in
      1993; and if he had not been imprisoned he would have gone back
      to St Kitts, if he had ever come here at all, long before his
      AIDS was diagnosed.  Taking account of the fact that the Court
      must give most anxious scrutiny to a decision which involves
      questions particularly of life expectancy, as this one apparently
      does, nevertheless I cannot find that an argument in this case
      that the decision of the Chief Immigration Officer was irrational
      is one that has any hope of success at all.  Putting it the
      opposite way, it seems to me to be one which was well within the
      bounds of his discretion, and thus is not one with which the
      Court can properly interfere."

   F.      Reports on the applicant's medical condition, treatment and

13.   Since August 1995, the applicant's "CD4" cell count has been
below 10.  He has been in the advanced stages of the illness, suffering
from recurrent anaemia, bacterial chest infections, malaise,
skin rashes, weight loss and periods of extreme fatigue.

14.   By letter dated 15 January 1996, Dr Evans, a consultant doctor,

      "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 ..."

15.   In a medical report provided on 13 June 1996, Professor Pinching,
a professor of immunology at a London hospital, 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 very poor and limited to eight to
twelve months on present therapy.  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 otherwise expected.

   G.      Medical facilities in St Kitts

16.   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 that due consideration be given to lifting
the deportation order in respect of the applicant.  By letter dated
1 August 1996, the High Commission for the Eastern Caribbean States
confirmed that the position in St Kitts had not changed.

17.   By letter dated 5 February 1996, the Antigua and Barbuda
Red Cross informed the applicant's representatives that they had
consulted their officer on St Kitts who stated that there was no
health care providing for drugs treatment of AIDS.

      Results of enquiries made by the Government of the authorities
in St Kitts suggest that there are two hospitals in St Kitts which care
for AIDS patients by treating them for opportunistic infections until
they are well enough to be discharged, and that an increasing number
of AIDS sufferers there live with relatives.

   H.      The applicant's family situation in St Kitts

18.   The applicant has no family home or close family in St Kitts
other than, according to information provided by the Government, a
cousin.  His mother, who currently lives in the United States, has
declared that her age, bad health and lack of resources prevent her
from returning to St Kitts to look after her son if he were to be
returned there.  She has also stated that she knew of no relatives who
would be able to care for him in St Kitts.

   I.      The applicant's situation since the adoption of the
           Commission's report

19.   When granted bail on 31 October 1996 (see paragraph 7 above) the
applicant was released to reside in special sheltered accommodation for
AIDS patients provided by a charitable organisation working with
homeless persons.  Accommodation, food and services are provided free
of charge to the applicant.  He also has the emotional support and
assistance of a trained volunteer provided by the
Terrence Higgins Trust, the leading charity in the United Kingdom
providing practical support, help, counselling and legal and other
advice for persons concerned about or having AIDS or HIV infection.

20.   In a medical report dated 9 December 1996 Dr J.M. Parkin, a
consultant in clinical immunology treating the applicant at a
London hospital, noted that he was at an advanced stage of
HIV infection and was severely immunosuppressed.  His prognosis was
poor.  The applicant was being given antiretroviral therapy with "D4T"
and "3TC" to reduce the risk of opportunistic infection and was
continuing to be prescribed pentamidine nebulisers to prevent a
recurrence of PCP.  Preventative treatment for other opportunistic
infections was also foreseen.  Dr Parkin noted that the lack of
treatment with anti-HIV therapy and preventative measures for
opportunistic disease would hasten his death if he were to be returned
to St Kitts.

21.   The applicant was transferred to an AIDS hospice around the
middle of January 1997 for a period of respite care.  At the beginning
of February there was a sudden deterioration in his condition and he
had to be admitted to a hospital on 7 February for examination.  At the
hearing before the Court on 20 February 1997, it was stated that the
applicant's condition was causing concern and that the prognosis was
uncertain.  According to his counsel, it would appear that the
applicant's life was drawing to a close much as the experts had
predicted (see paragraph 15 above).

II.   Relevant domestic law and practice

22.   The regulation of entry into and stay in the United Kingdom is
governed by Part 1 of the Immigration Act 1971.  The practice to be
followed in the administration of the Act for regulating entry and stay
is contained in statements of the rules laid by the Secretary of State
before Parliament ("the Immigration Rules").

23.   Section 3 (1) provides that a person who is not a British citizen
shall not enter the United Kingdom unless given leave to do so in
accordance with the provisions of the Act.  Leave to enter may be
granted for a limited or for an indefinite period.

24.   Under section 4 (1) of the Act the power to grant or refuse leave
to enter is exercised by immigration officers whereas the power to
grant leave to remain in the United Kingdom is exercised by the
Secretary of State.  These powers are exercisable by notice in writing
given to the person affected.

25.   A person, such as the applicant, who has been refused leave to
enter but is physically in the United Kingdom pending his removal and
seeks to be allowed to stay there does not fall to be treated as
applying for leave to remain.  Since no leave to enter had been granted
to the applicant, it was right according to the judgment of
Sir Iain Glidewell in R. v. Secretary of State for the Home Department,
ex parte D. (Court of Appeal, 15 February 1996) for the
immigration officer to treat his application as an application for
leave to enter rather than for leave to remain.

   A.      Policy guidelines on how to proceed in cases in which
           persons seeking to enter or remain in the United Kingdom
           are suffering from AIDS or are HIV-positive

26.   The Immigration and Nationality Department of the Home Office
issued a policy document (BDI 3/95) on this subject in August 1995.
Paragraph 2 of the guidelines specifies that the fact that a person is
suffering from AIDS or is HIV-positive is not a ground for refusing
leave to enter or leave to remain if the person concerned otherwise
qualifies under the Immigration Rules.  Equally, this fact is not in
itself a sufficient ground to justify the exercise of discretion where
the person concerned has not met the requirements of the Rules.

      The policy guidelines distinguish between applications for leave
to enter and applications for leave to remain.

27.   On applications for leave to enter (paragraph 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.

28.   On applications for leave to remain (paragraph 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

   B.      Other relevant materials

29.   Among the documentary materials submitted by the applicant, are
the following.

      1.   International policy statements on human rights and AIDS

30.   International concern about AIDS has resulted in the adoption of
several international texts which have addressed, inter alia, the
protection of the human rights of the victims of the disease.  Thus,
the United Nations Commission on Human Rights adopted a resolution on
9 March 1993 on the protection of human rights in the context of
human immunodeficiency virus or acquired immunodeficiency syndrome in
which it called upon

      "all States to ensure that their laws, policies and practices
      introduced in the context of AIDS respect
      human rights standards".

31.   At a Summit of Heads of Government or Representatives of
forty-two States meeting in Paris on 1 December 1994, a declaration was
adopted in which the participating States solemnly declared their

      "to act with compassion for and in solidarity with those with HIV
      or at risk of becoming infected, both within [their] societies
      and internationally".

      2.   Extract of the WHO report on "Health conditions in the
           Americas", 1994, Volume II, concerning St Kitts and Nevis

32.   "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) ..."

33.   According to this publication, there are two general hospitals
in St Kitts, one with 174 beds and the other with 38.  There is also
a "cottage" hospital with 10 beds.  There are two homes providing
geriatric care.

      3.   "Treatment issues - a basic guide to medical treatment
           options for people with HIV and AIDS" produced in
           April 1996 by the Terrence Higgins Trust

34.   This guide describes the three medical strategies available for
treating HIV infection 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.

35.   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, toxoplasmosis and PCP.  PCP is a form of pneumonia which
in people infected 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 cotrimoxazole and the use of nebulised pentamidine which is
intended to protect the lungs.

36.   In relation to the third category, treatment which strengthens
or restores the immune system, research has yet to produce any clear


37.   The applicant lodged his application (no. 30240/96) with the
Commission on 15 February 1996.  He alleged that his proposed removal
to St Kitts would be in violation of Articles 2, 3 and 8 of the
Convention (art. 2, art. 3, art. 8) and that he had been denied an
effective remedy to challenge the removal order in breach of
Article 13 (art. 13).

      The Commission declared the application admissible on
26 June 1996.  In its report of 15 October 1996 (Article 31) (art. 31),
it expressed the opinion that Article 3 (art. 3) would be violated if
the applicant were to be removed to St Kitts (eleven votes to seven);
that it was unnecessary to examine the complaint under Article 2
(art. 2) (unanimously); that no separate issue arose under Article 8
(art. 8) (unanimously); and that there had been no violation of
Article 13 (art. 13) (thirteen votes to five).  The full text of the
Commission's opinion and of the two separate opinions contained in the
report is reproduced as an annex to this judgment (1).
Note by the Registrar

1.  For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-III), but a copy of the Commission's report is
obtainable from the registry.


38.   In their memorial and at the oral hearing the Government
requested the Court to decide and declare that the facts disclose no
breach of the applicant's rights under Articles 2, 3, 8 or 13 of the
Convention (art. 2, art. 3, art. 8, art. 13).

      The applicant requested the Court in his memorial and at the oral
hearing to find that his proposed removal from the United Kingdom
would, if implemented, constitute a breach of Articles 2, 3 and 8 of
the Convention (art. 2, art. 3, art. 8) and that he had no effective
remedy in respect of those complaints in breach of Article 13
(art. 13).



39.   The applicant maintained that his removal to St Kitts would
expose him to inhuman and degrading treatment in breach of Article 3
of the Convention (art. 3), which provides:

      "No one shall be subjected to torture or to inhuman or degrading
      treatment or punishment."

    A.     Arguments of those appearing before the Court

      1.   The applicant

40.   The applicant maintained that his removal to St Kitts would
condemn him to spend his remaining days in pain and suffering in
conditions of isolation, squalor and destitution.  He had no close
relatives or friends in St Kitts to attend to him as he approached
death.  He had no accommodation, no financial resources and no access
to any means of social support.  It was an established fact that the
withdrawal of his current medical treatment would hasten his death on
account of the unavailability of similar treatment in St Kitts.  His
already weakened immune system would not be able to resist the many
opportunistic infections to which he would be exposed on account of his
homelessness, lack of proper diet and the poor sanitation on the
island.  The hospital facilities were extremely limited and certainly
not capable of arresting the development of infections provoked by the
harsh physical environment in which he would be obliged to fend for
himself.  His death would thus not only be further accelerated, it
would also come about in conditions which would be inhuman and

41.   In June 1996, his life expectancy was stated to be in the region
of eight to twelve months even if he continued to receive treatment in
the United Kingdom.  His health had declined since then. As he was now
clearly weak and close to death, his removal by the respondent State
at this late stage would certainly exacerbate his fate.

      2.   The Government

42.   The Government requested the Court to find that the applicant had
no valid claim under Article 3 (art. 3) in the circumstances of the
case since he would not be exposed in the receiving country to any form
of treatment which breached the standards of Article 3 (art. 3).  His
hardship and reduced life expectancy would stem from his terminal and
incurable illness coupled with the deficiencies in the health and
social-welfare system of a poor, developing country.  He would find
himself in the same situation as other AIDS victims in St Kitts.  In
fact he would have been returned in January 1993 to St Kitts, where he
had spent most of his life, had it not been for his prosecution and

43.   The Government also disputed the applicant's claim that he would
be left alone and without access to treatment for his condition.  They
maintained that he had at least one cousin living in St Kitts and that
there were hospitals caring for AIDS patients, including those
suffering from opportunistic infections (see paragraph 17 above).  Even
if the treatment and medication fell short of that currently
administered to the applicant in the United Kingdom, this in itself did
not amount to a breach of Article 3 standards (art. 3).

44.   Before the Court the Government observed that it was their policy
not to remove a person who was unfit to travel.  They gave an
undertaking to the Court not to remove the applicant unless, in the
light of an assessment of his medical condition after the Court gives
judgment, he is fit to travel.

      3.   The Commission

45.   The Commission concluded that the removal of the applicant to
St Kitts would engage the responsibility of the respondent State under
Article 3 (art. 3) even though the risk of being subjected to inhuman
and degrading treatment stemmed from factors for which the authorities
in that country could not be held responsible.  The risk was
substantiated and real.  If returned, he would be deprived of his
current medical treatment and his already weakened immune system would
be exposed to untreatable opportunistic infections which would reduce
further his limited life expectancy and cause him severe pain and
mental suffering.  He would be homeless and without any form of moral,
social or family support in the final stages of his deadly illness.

    B.     The Court's assessment

46.   The Court recalls at the outset that Contracting States have the
right, as a matter of well-established international law and subject
to their treaty obligations including the Convention, to control the
entry, residence and expulsion of aliens.  It also notes the gravity
of the offence which was committed by the applicant and is acutely
aware of the problems confronting Contracting States in their efforts
to combat the harm caused to their societies through the supply of
drugs from abroad.  The administration of severe sanctions to persons
involved in drug trafficking, including expulsion of alien drug
couriers like the applicant, is a justified response to this scourge.

47.   However, in exercising their right to expel such aliens
Contracting States must have regard to Article 3 of the Convention
(art. 3), which enshrines one of the fundamental values of democratic
societies.  It is precisely for this reason that the Court has
repeatedly stressed in its line of authorities involving extradition,
expulsion or deportation of individuals to third countries that
Article 3 (art. 3) prohibits in absolute terms torture or inhuman or
degrading treatment or punishment and that its guarantees apply
irrespective of the reprehensible nature of the conduct of the person
in question (see, most recently, the Ahmed v. Austria judgment of
17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2206,
para. 38; and the Chahal v. the United Kingdom judgment of
15 November 1996, Reports 1996-V, p. 1853, paras. 73-74).

48.   The Court observes that the above principle is applicable to the
applicant's removal under the Immigration Act 1971.  Regardless of
whether or not he ever entered the United Kingdom in the technical
sense (see paragraph 25 above) it is to be noted that he has been
physically present there and thus within the jurisdiction of the
respondent State within the meaning of Article 1 of the Convention
(art. 1) since 21 January 1993.  It is for the respondent State
therefore to secure to the applicant the rights guaranteed under
Article 3 (art. 3) irrespective of the gravity of the offence which he

49.   It is true that this principle has so far been applied by the
Court in contexts in which the risk to the individual of being
subjected to any of the proscribed forms of treatment emanates from
intentionally inflicted acts of the public authorities in the receiving
country or from those of non-State bodies in that country when the
authorities there are unable to afford him appropriate protection
(see, for example, the Ahmed judgment, loc. cit., p. 2207, para. 44).

      Aside from these situations and given the fundamental importance
of Article 3 (art. 3) in the Convention system, the Court must reserve
to itself sufficient flexibility to address the application of that
Article (art. 3) in other contexts which might arise.  It is not
therefore prevented from scrutinising an applicant's claim under
Article 3 (art. 3) where the source of the risk of proscribed treatment
in the receiving country stems from factors which cannot engage either
directly or indirectly the responsibility of the public authorities of
that country, or which, taken alone, do not in themselves infringe the
standards of that Article (art. 3).  To limit the application of
Article 3 (art. 3) in this manner would be to undermine the absolute
character of its protection.  In any such contexts, however, the Court
must subject all the circumstances surrounding the case to a rigorous
scrutiny, especially the applicant's personal situation in the
expelling State.

50.   Against this background the Court will determine whether there
is a real risk that the applicant's removal would be contrary to the
standards of Article 3 (art. 3) in view of his present medical
condition.  In so doing the Court will assess the risk in the light of
the material before it at the time of its consideration of the case,
including the most recent information on his state of health (see the
Ahmed judgment, loc. cit., p. 2207, para. 43).

51.   The Court notes that the applicant is in the advanced stages of
a terminal and incurable illness.  At the date of the hearing, it was
observed that there had been a marked decline in his condition and he
had to be transferred to a hospital.  His condition was giving rise to
concern (see paragraph 21 above).  The limited quality of life he now
enjoys results from the availability of sophisticated treatment and
medication in the United Kingdom and the care and kindness administered
by a charitable organisation.  He has been counselled on how to
approach death and has formed bonds with his carers (see paragraph 19

52.   The abrupt withdrawal of these facilities will entail the most
dramatic consequences for him.  It is not disputed that his removal
will hasten his death.  There is a serious danger that the conditions
of adversity which await him in St Kitts will further reduce his
already limited life expectancy and subject him to acute mental and
physical suffering.  Any medical treatment which he might hope to
receive there could not contend with the infections which he may
possibly contract on account of his lack of shelter and of a proper
diet as well as exposure to the health and sanitation problems which
beset the population of St Kitts (see paragraph 32 above).  While he
may have a cousin in St Kitts (see paragraph 18 above), no evidence has
been adduced to show whether this person would be willing or in a
position to attend to the needs of a terminally ill man.  There is no
evidence of any other form of moral or social support.  Nor has it been
shown whether the applicant would be guaranteed a bed in either of the
hospitals on the island which, according to the Government, care for
AIDS patients (see paragraph 17 above).

53.   In view of these exceptional circumstances and bearing in mind
the critical stage now reached in the applicant's fatal illness, the
implementation of the decision to remove him to St Kitts would amount
to inhuman treatment by the respondent State in violation of Article 3
(art. 3).

      The Court also notes in this respect that the respondent State
has assumed responsibility for treating the applicant's condition since
August 1994.  He has become reliant on the medical and palliative care
which he is at present receiving and is no doubt psychologically
prepared for death in an environment which is both familiar and
compassionate.  Although it cannot be said that the conditions which
would confront him in the receiving country are themselves a breach of
the standards of Article 3 (art. 3), his removal would expose him to
a real risk of dying under most distressing circumstances and would
thus amount to inhuman treatment.

      Without calling into question the good faith of the undertaking
given to the Court by the Government (see paragraph 44 above), it is
to be noted that the above considerations must be seen as wider in
scope than the question whether or not the applicant is fit to travel
back to St Kitts.

54.   Against this background the Court emphasises that aliens who have
served their prison sentences and are subject to expulsion cannot in
principle claim any entitlement to remain in the territory of a
Contracting State in order to continue to benefit from medical, social
or other forms of assistance provided by the expelling State during
their stay in prison.

      However, in the very exceptional circumstances of this case and
given the compelling humanitarian considerations at stake, it must be
concluded that the implementation of the decision to remove the
applicant would be a violation of Article 3 (art. 3).


55.   The applicant further maintained that the implementation by the
United Kingdom authorities of the decision to remove him to St Kitts
would be in breach of Article 2 of the Convention (art. 2), which

      "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.

      2. Deprivation of life shall not be regarded as inflicted in
      contravention of this Article (art. 2) when it results from the
      use of force which is no more than absolutely necessary:

      (a) in defence of any person from unlawful violence;

      (b) in order to effect a lawful arrest or to prevent the escape
      of a person lawfully detained;

      (c) in action lawfully taken for the purpose of quelling a riot
      or insurrection."

56.   The applicant contended that his removal to St Kitts would engage
the responsibility of the respondent State under Article 2 (art. 2).
He is terminally ill, and the medical evidence submitted to the Court
(see paragraphs 14-15 and 20-21 above) confirmed that his already
reduced life expectancy would be further shortened if he were to be
suddenly deprived of his current medical treatment and sent back to
St Kitts.  There would, he argued, be a direct causal link between his
expulsion and his accelerated death such as to give rise to a violation
of the right to life.  He submitted that Article 2 (art. 2) denoted a
positive obligation to safeguard life which in the circumstances in
issue required the Government not to take a measure which would further
reduce his limited life expectancy.

57.   The Government did not dispute the fact that the removal of the
applicant to St Kitts and the consequential loss of the current medical
treatment would hasten his death.  However, the threat to his life
expectancy stemmed not from factors for which the Government could be
held responsible but from his own fatal illness in conjunction with the
lack of adequate medical treatment in the receiving country.
Article 2 (art. 2) was therefore not applicable to the circumstances
in issue.  In any event the substance of the applicant's complaints
could not be separated from the arguments he advanced in furtherance
of his allegation under Article 3 (art. 3) and for that reason were
best dealt with under the latter provision (art. 3).

58.   The Commission did not find it necessary to decide whether the
risk to the applicant's life expectancy created by his removal
disclosed a breach of Article 2 (art. 2).  It considered that it would
be more appropriate to deal globally with this allegation when
examining his related complaints under Article 3 (art. 3).

59.   The Court for its part shares the views of the Government and the
Commission that the complaints raised by the applicant under
Article 2 (art. 2) are indissociable from the substance of his
complaint under Article 3 (art. 3) in respect of the consequences of
the impugned decision for his life, health and welfare.  It notes in
this respect that the applicant stated before the Court that he was
content to base his case under Article 3 (art. 3).

      Having regard to its finding that the removal of the applicant
to St Kitts would give rise to a violation of Article 3 (art. 3)
(see paragraph 54 above), the Court considers that it is not necessary
to examine his complaint under Article 2 (art. 2).


60.   The applicant also alleged that his proposed removal to St Kitts
would violate his right to respect for his private life, as guaranteed
by Article 8 of the Convention (art. 8).  Article 8 (art. 8) provides:

      "1. Everyone has the right to respect for his private and family
      life, his home and his correspondence.

      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."

61.   In support of this argument the applicant maintained that his
removal would amount to a disproportionate interference with his right
to respect for his private life, and in particular his right to respect
for his physical integrity.  While readily accepting that the offence
he had committed was a very serious one, he requested the Court to
consider the impact which his removal to St Kitts would entail for him,
a terminally ill person with no family or close relatives in the
receiving country, no moral or social support and no adequate medical
treatment to stave off infection to his already weakened immune system.
His continued presence in the United Kingdom could not be considered
a burden on the domestic health resources and, furthermore, there were
no indications that he would reoffend.

62.   The Government maintained that the applicant could not rely on
Article 8 (art. 8) to challenge the impact of the impugned decision on
his right to private life since his private life was constituted in the
receiving country where he had lived most of his life.  Any links which
the applicant had with the United Kingdom were the direct result of the
offence for which he had been sentenced.  Even if Article 8 (art. 8)
were to be regarded as applicable, the interference with his medical
interests by removing him to St Kitts was justified, given the
seriousness of the offence he had committed, for reasons of the
prevention of crime and in the interests of the economic well-being of
the United Kingdom.

63.   Although the Commission found that no separate issue arose under
Article 8 (art. 8) in view of its findings under Article 3 (art. 3),
the Delegate invited the Court to find a violation of Article 8
(art. 8) in the event of a conclusion that the applicant's removal to
St Kitts would not violate Article 3 (art. 3).

64.   Having regard to its finding under Article 3 (art. 3)
(see paragraph 54 above), the Court concludes that the applicant's
complaints under Article 8 (art. 8) raise no separate issue.


65.   The applicant complained that he had no effective remedy in
English law in respect of his complaints under Articles 2, 3 and 8 of
the Convention (art. 2, art. 3, art. 8).  He contended that this gave
rise to a breach of Article 13 of the Convention (art. 13), which

      "Everyone whose rights and freedoms as set forth in [the]
      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 pointed to the limitations which circumscribed an
effective review by courts in the United Kingdom of the decisions
reached by the authorities in expulsion cases.  When reviewing the
legality of administrative decisions the courts did not treat the
Convention and the principles developed by the Court as a relevant
consideration; nor was the decision-maker obliged to take account of
the Convention and the case-law of the Convention institutions when
exercising the powers conferred by legislation such as the
Immigration Act 1971.  Admittedly, the domestic courts will review
decisions with a greater rigour when they have an impact on
human rights, but even in such cases they do not take a
Convention-based approach.  Thus, in the case in issue, the
Court of Appeal did not seek to satisfy itself whether the removal of
the applicant would expose him to inhuman and degrading treatment but
merely examined whether the decision-maker had taken this factor into
account.  This, he maintained, fell short of the test of "independent
scrutiny" of a claim that there exist substantial grounds for fearing
a real risk of treatment proscribed by Article 3 (art. 3) which the
Court in its Chahal judgment (loc. cit., p. 1871, para. 151) had
considered to be a crucial aspect of an effective remedy.  Furthermore,
the Court of Appeal had regarded the seriousness of the applicant's
offence as a paramount consideration in deciding that the impugned
decision was not an irrational one and had failed also to take adequate
account of the Convention's requirements when dealing with his
complaints under Articles 2 and 8 (art. 2, art. 8).  For these reasons
it could not be said that the judicial review proceedings afforded him
an effective remedy within the meaning of Article 13 (art. 13).

67.   The Government disputed this argument and invited the Court to
confirm the conclusion which it had reached in certain earlier
judgments that judicial review proceedings afforded an effective remedy
to challenge the legality of a decision to expel or deport an
individual.  The courts in the United Kingdom applied a "most anxious
scrutiny" test when reviewing administrative decisions which affect the
fundamental rights of individuals.  The Court of Appeal applied such
a test in this case when assessing the merits of the decision to remove
the applicant and took due account of the hardship which the
implementation of the decision would cause the applicant.  The
applicant cannot therefore argue that he was denied an effective

68.   The Commission agreed with the Government.  The Court of Appeal
examined the substance of the applicant's complaint, including the
hardship which would result from his removal.  Although the
Court of Appeal did not quash the decision to remove him, it had the
power to do so.  The remedy afforded by judicial review was therefore
an effective one.

69.   The Court observes that Article 13 of the Convention (art. 13)
guarantees the availability at national level of a remedy to enforce
the substance of the Convention rights and freedoms in whatever form
they might happen to be secured in the domestic legal order.  The
effect of this Article (art. 13) is thus to require the provision of
a domestic remedy allowing the competent national authority both to
deal with the substance of the relevant Convention complaint and to
grant appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they conform to their obligations
under this provision (art. 13) (see, among other authorities, the
Soering v. the United Kingdom judgment of 7 July 1989, Series A
no. 161, p. 47, para. 120; and the Vilvarajah and Others
v. the United Kingdom judgment of 30 October 1991, Series A no. 215,
p. 39, para. 122).

70.   In its Vilvarajah and Others judgment (loc. cit., p. 39,
para. 123) and its Soering judgment (loc. cit., pp. 47-48,
paras. 121-24) the Court considered judicial review proceedings to be
an effective remedy in relation to the complaints raised under
Article 3 (art. 3) in the contexts of deportation and extradition.  It
was satisfied that English courts could effectively control the
legality of executive discretion on substantive and procedural grounds
and quash decisions as appropriate.  It was also accepted that a court
in the exercise of its powers of judicial review would have power to
quash a decision to expel or deport an individual to a country where
it was established that there was a serious risk of inhuman or
degrading treatment, on the ground that in all the circumstances of the
case the decision was one that no reasonable Secretary of State could

71.   While it is true that the source of the risk of the prohibited
treatment to which the applicant will be exposed and the impugned
measure are different from those in the above cases there is no reason
to depart from the conclusion reached in those cases in respect of the
effectiveness of judicial review proceedings for the purposes of
Article 13 (art. 13).  Indeed the Court of Appeal had regard to
domestic case-law which required it to submit the applicant's plight
to the most anxious scrutiny on account of the established risk to his
life expectancy.  It did so against the background of the criteria
which need to be satisfied before an administrative decision can be
challenged on the grounds of its irrationality.  The substance of the
applicant's complaint was therefore examined by the Court of Appeal.
That court had the power to afford him the relief he sought.  The fact
that it did not do so is not a material consideration since the
effectiveness of a remedy for the purposes of Article 13 (art. 13) does
not depend on the certainty of a favourable outcome for an applicant
(see the Vilvarajah and Others judgment, loc. cit., p. 39, para. 122).

72.   The applicant maintained that the effectiveness of the remedy
invoked first before the High Court and subsequently before the
Court of Appeal was undermined on account of their failure to conduct
an independent scrutiny of the facts in order to determine whether they
disclosed a real risk that he would be exposed to inhuman and degrading
treatment.  He relied on the reasoning in the Chahal judgment
(loc. cit., p. 1871, para. 151).  However the Court notes that in that
case the domestic courts were precluded from reviewing the factual
basis underlying the national-security considerations invoked by the
Home Secretary to justify the expulsion of Mr Chahal.  No such
considerations arise in the case in issue.

73.   The applicant thus had available to him an effective remedy in
relation to his complaints under Articles 2, 3 and 8 of the Convention
(art. 2, art. 3, art. 8).  Accordingly there has been no breach of
Article 13 (art. 13).


74.   Article 50 of the Convention (art. 50) provides:

      "If the Court finds that a decision or a measure taken by a legal
      authority or any other authority of a High Contracting Party is
      completely or partially in conflict with the obligations arising
      from the ... Convention, and if the internal law of the said
      Party allows only partial reparation to be made for the
      consequences of this decision or measure, the decision of the
      Court shall, if necessary, afford just satisfaction to the
      injured party."

    A.     Costs and expenses

75.   The applicant did not seek damages.  He claimed reimbursement of
GBP 49,443 and 13,811 French francs (FRF) incurred by way of costs and
expenses in respect of the proceedings brought before the Convention

76.   The Government requested the Court to reduce the amount, mainly
because the time billed in respect of the preparation of certain parts
of the case was excessive and the number of lawyers engaged to work on
the case unreasonable.  They proposed the sum of GBP 29,313.16 and
FRF 9,194.

77.   The applicant defended the amount claimed on account of,
inter alia, the complexity of the issues involved and the speed with
which the case had been treated by both the Commission and the Court.

78.   Making an assessment on an equitable basis, the Court awards the
applicant GBP 35,000 plus any value-added tax that may be chargeable
under this head, less the FRF 33,216 already paid in legal aid by the
Council of Europe.

    B.     Default interest

79.   According to the information available to the Court, the
statutory rate of interest applicable in the United Kingdom at the date
of adoption of the present judgment is 8% per annum.


1.    Holds that the implementation of the decision to remove the
      applicant to St Kitts would violate Article 3 of the Convention
      (art. 3);

2.    Holds that having regard to its conclusion under Article 3
      (art. 3) it is not necessary to examine the applicant's complaint
      under Article 2 of the Convention (art. 2);

3.    Holds that the applicant's complaint under Article 8 of the
      Convention (art. 8) gives rise to no separate issue;

4.    Holds that there has been no violation of Article 13 of the
      Convention (art. 13);

5.    Holds

      (a) that the respondent State is to pay the applicant, within
      three months, 35,000 (thirty-five thousand) pounds sterling in
      respect of costs and expenses less 33,216 (thirty-three thousand
      two hundred and sixteen) French francs to be converted into
      pounds sterling at the rate applicable at the date of delivery
      of the present judgment;

      (b) that simple interest at an annual rate of 8% shall be payable
      from the expiry of the above-mentioned three months until

      Done in English and in French, and delivered at a public hearing
in the Human Rights Building, Strasbourg, on 2 May 1997*.

For the President
Signed: Jan De Meyer

For the Registrar
Signed: Michael O'Boyle
        Head of Division
        in the registry of the Court


* Note by the Registry: Judge Pettiti, who was a substitute judge in 
the present case and who did not participate in the final vote, wrote a 
concurring opinion  which was mistakenly appended to the copy of the 
judgment which was given to the parties.  This opinion was immediately
withdrawn and does not form part of the judgment in the case.