SN (Zimbabwe) v Secretary of State for the Home Department

Lord Justice Moses:

1. This is an application for permission to appeal against the refusal of a senior immigration judge who described any appeal as doomed to fail; but there are two problems, as it seems to me. Firstly his record is described as appalling. Well, in the sense of frequency that is certainly so, but the Secretary of State, who appeared to think, incorrectly, that this applicant came from Zambia, in fact only refers to two in the letter dated 12 September 2006; there clearly was one serious one,18 months, from 2 November 1998. But the one that triggered the Deportation Order was driving under the influence of alcohol, for which he received a 3 month prison sentence.

2. That is clearly serious, but that has to be weighed against the one consideration that does trigger my granting permission to appeal: this applicant has HIV. The original determination, which was found to be in legal error, spoke of the difficulties of obtaining treatment in Zimbabwe -- the correct country -- at paragraph 38 and the absence of any evidence as to whether he could obtain treatment. The revised hearing makes, as far as I can see, no real reference to the fact that he is HIV positive, and, as he says in his grounds, he would have great difficulty in receiving the treatment he now receives in the United Kingdom in Zimbabwe.

3. At paragraph 26 Judge Lucas merely asserts that he has considered the fact that he is HIV positive. He says absolutely nothing else about it at all. The ground of appeal says that scant consideration was given to that and the medical evidence and the lack of availability of treatment on the objective evidence. That, as far as I can see, is simply not dealt with at all in the grounds for refusing permission to appeal.

4. On that one ground, therefore, relating to the applicant’s medical condition and the prospect of obtaining treatment in Zimbabwe, I would give permission to appeal. It is vital that this applicant obtains legal advice and representation for the hearing of the appeal. But having said that, on that one ground I shall grant permission. The case will last 2 ½ hours at most; three judges, one who can be a High Court judge. Order: Application granted