Duncan Lewis win landmark case involving the rights of children to access medical treatment.

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SQ (Pakistan) & Anor, R (on the application of) v The Upper Tribunal Immigration and Asylum Chamber & Anor [2013] EWCA Civ 1251 (22 October 2013)

We welcome the Court of Appeal’s judgment in this case and its wider impact on children and the application of Article 3 in health cases. Duncan Lewis will continue to fight for the most vulnerable people in society.

Duncan Lewis achieved success on a landmark case involving a child suffering from a severe medical condition requiring blood transfusions. The Court of Appeal allowed the child’s appeal and held that there will be circumstances in which the high Article 3 threshold will be reached in relation to a child where it would not be reached in relation to an adult.

The case involved a child from Pakistan (SQ) who suffers from a serious medical condition: beta thalassaemia, for which they had been receiving treatment in Pakistan.The child moved to the United Kingdom with an immediate relation in 2012.

Due to the quality of the medical treatment the child required, which includes chelation therapy, being significantly lower quality in their country of origin in comparison to the level of treatment that they have received from the National Health Service in the UK, the child’s immediate relation made an application for leave to remain in the UK on asylum and human rights grounds, on their behalf. The applications were refused by the Secretary of State and their appeals to the First-Tier Tribunal (FTT) were dismissed.

The Tribunal decision was appealed on human rights grounds only, namely Article 3 and 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). It was argued that to return the child to Pakistan would have subjected him to inhumane treatment, or would have interfered with his right to respect for his private life.

The case was that, if returned, the child would probably die in his late teens or early twenties, whereas in the United Kingdom he would have a higher quality of life.The Court of Appeal held that the client of Duncan Lewis’ appeal be allowed under the verdict that there will be circumstances in which the high Article 3 threshold will be reached in relation to a child where it would not be reached in relation to an adult.

Lord Justice Maurice Kay held:

“Article 3 confers an unqualified right. Ultimately the question is whether what is likely to befall the claimant crosses the high threshold and the test of exceptionality. Whether or not the required level of severity is reached in a particular case depends on all the circumstances of that case. I accept that there are circumstances in which the threshold will be reached in relation to a child where it would not be reached in the case of an adult.”

Following this the case has now been remitted back to the Upper Tribunal for a further hearing.
Duncan Lewis Immigration Director, Toufique Hossain said of the outcome:

“The decision by the Court of Appeal is important for human rights cases involving children. Our client suffers from serious health problems. We welcome the Court of Appeal’s judgment in this case and its wider impact on children and the application of Article 3 in health cases. Duncan Lewis will continue to fight for the most vulnerable people in society”.

Duncan Lewis solicitor within the Immigration Team, acted for the appellant, and barristers Stephen Knafler QC and Mark Symes, both of Garden Court Chambers were both instructed by Duncan Lewis.

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