Case study

The applicant, Ms B., was born in Burundi in 1960. She currently lives in Reading (United Kingdom). The applicant entered the United Kingdom on 28 March 1998 under an assumed name. She was seriously ill, and was admitted to hospital, where she was diagnosed as HIV positive with "considerable immunosuppression and ... disseminated mycobacterium TB".

On 31 March 1998 solicitors lodged an asylum application on her behalf, claiming that she needed medical treatment which was not available in Burundi. In August 1998 the applicant developed a second AIDS defining illness, Kaposi's sarcoma. Her CD4 count was down to 10 (that of a healthy person is over 500). After treatment with antiretroviral drugs and frequent monitoring her condition began to stabilize so that by 2005, when the House of Lords examined the case, her CD4 count had risen to 414.

In March 2001 a consultant physician prepared an expert report, at the request of the applicant's solicitor, which expressed the viewthat without continuing regular antiretroviral treatment to improve and maintain her CD4 count, and monitoring to ensure that the correct combination of drugs was used, the applicant's life expectancy would be less than one year, due to the disseminated Kaposi's sarcoma and the risk of infections. The medication she needed would be available in Burundi, but only at considerable expense, and in limited supply in the applicant's home town. Moreover, the author of the report pointed out that in Burundi there was no provision for publicly funded blood monitoring, basic nursing care, social security, food or housing.

The Secretary of State refused the asylum claim on 28 March 2001.

The applicant, lodged a complaint with the European Court of Human Rights under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms

Questions

1. What would be legal basis of the applicant's claim? Please, explain why this right has been violated.

1. What would be the likely decision of the Eur. Court Human Rights and its reasoning? Please, refer to relevant case law when necessary.

1. Some may argue that extending the scope of the applicable treaty provision in this way has the potential for opening up "the floodgates to medical immigration and making Europe vulnerable to becoming the "sick bay" of the world".

Please, comment