Regina v. Secretary of State for the Home Department, ex parte Adam; Regina v. Secretary of State for the Home Department, ex parte Limbuela; Regina v. Secretary of State for the Home Department, ex parte Tesema

[2005] UKHL 66
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Section 95 of the Immigration and Asylum Act 1999 (‘the Act’) authorized the Home Secretary to provide or arrange for the provision of support for asylum-seekers and their dependents who appeared to be destitute, as defined, or likely to become so within a prescribed period. L, A and T, from Angola, Ethiopia and the Sudan respectively, claimed asylum upon their arrival. They were duly provided with emergency accommodation by the National Asylum Support Service (NASS).

However, shortly after each of their respective arrivals, the Home Secretary decided that none of them had claimed asylum as soon as had been reasonably practicable and withdrew support from them, exercising powers under Part VI of the Act by virtue of section 55(1) of the Nationality, Immigration and Asylum Act 2002 (‘the Nationality Act’). They were thus evicted from NASS accommodation and forced to make other arrangements for accommodation and subsistence; for two of them this meant sleeping rough on the streets. None of the three had any funds of their own at their disposal with which to obtain accommodation and they were prevented from finding a means to pay for basic necessities through finding employment due to s 8 of the Immigration Rules: Asylum and Immigration Act 1996 (‘the Rules’) and Schedule, Part 1, para 3 of the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225) (‘the Order’). Under the Rules employers were liable to prosecution if they employed persons who had not been granted leave to enter or remain in the country and for the first 12 months of their stay asylum-seekers and their dependants were prohibited by these restrictions from earning the money they needed to maintain themselves.

Consequently L, A and T, claiming that they had been forced into a life of destitution, successfully applied for permission for judicial review of the Home Secretary’s decision on the grounds that he was obliged by s 55(5)(a) of the Nationality Act to provide support for the respondents under Part VI of the Act in order to prevent them suffering inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights (‘the ECHR’). The Home Secretary, having unsuccessfully appealed to the Court of Appeal, appealed to the House of Lords on the grounds that the treatment suffered by L, A and T, including rough sleeping, was insufficient to meet the threshold of Article 3 of the ECHR.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the appeals, the House of Lords held that:

(1) Inhuman or degrading treatment within the meaning of Article 3 of the ECHR humiliated or debased an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance. The suffering which flowed from naturally occurring illness, physical or mental, may be covered by Article 3, where it was, or risked being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible (Pretty v United Kingdom 35 EHRR 1, 33 applied; Ireland v United Kingdom (1978) 2 EHRR 25; A v United Kingdom (1998) 27 EHRR 611 and V v United Kingdom (1999) 30 EHRR 121 considered).

(2) The prohibition was absolute and it would be wrong to maintain that the severity test was more exacting where the treatment or punishment which would otherwise be found to be inhuman or degrading was the result of legitimate government policy. That would be to introduce into the absolute prohibition, by the back door, considerations of proportionality. They were relevant when an obligation to do something was implied into the ECHR. In that case the obligation of the state was not absolute and unqualified. But proportionality, which gave a margin of appreciation to states, had no part to play when conduct for which it was directly responsible resulted in inhuman or degrading treatment or punishment.

(3) The test of when the margin was crossed for the purposes of section 55(5)(a) of the Nationality Act was a different one from that which was used to determine whether for the purposes of s 95 of the Act the asylum-seeker was destitute. By prescribing a different regime for late claims for asylum, the legislation assumed that destitution, as defined in section 95(3), was not in itself enough to engage section 55(5)(a). Instead, it was necessary to ask whether the treatment to which the asylum-seeker was being subjected by the entire package of restrictions and deprivations that surrounded him was so severe that it could properly be described as inhuman or degrading treatment within the meaning of Article 3.

(4) Relevant factors included: whether the asylum-seeker was male or female, was elderly or in poor health, the extent to which he or she had explored all avenues of assistance that might be expected to be available and the length of time that had been spent and was likely to be spent without the required means of support. The exposure to the elements that resulted from rough sleeping, the risks to health and safety that it gave rise to, the effects of lack of access to toilet and washing facilities and the humiliation and sense of despair that attached to those who suffered from deprivations of that kind were all relevant.

(5) In this case the degree of suffering endured or imminently to be endured by L, A and T due to the removal of entitlement to benefits and the prohibition on their engaging in employment had reached the degree of severity prohibited by Article 3. Whilst being forced to sleep rough may on its own be insufficient to engage Article 3, although this again would depend upon the particular facts, this was significantly different from being additionally denied the ability to support oneself by earning money through work or having access to any state benefits (O’Rourke v United Kingdom (Application No 39022/97) (unreported), 26 June 2001 distinguished).

(6) The key to understanding s 55(5)(a) of the Nationality Act was avoidance of a breach. Therefore, the Home Secretary, in exercising his powers to provide support under ss 4, 95 and 98 of the Immigration Act and accommodation under ss. 17 and 24 of the Nationality Act was under a duty to prevent the ultimate state of inhuman or degrading treatment being reached. The statutory reference to ‘avoiding’, rather than to ‘remedying’ or ‘remedying as soon as practicable’ or other like words, indicated that the Home Secretary was expected to take action before a breach of the Convention right had occurred. In this respect, information that a particular asylum-seeker was having to sleep out of doors would be a very strong indication that the threshold had been reached. Here, L, A and T had made it clear that there was an imminent prospect of a breach owing to conditions being imposed by the Home Secretary arising from an imminent state of homelessness. This was sufficient to require the Home Secretary to provide support using his avoidance power under s 55(5)(a).

(7) Moreover, the Home Secretary was directly responsible for the consequences that flowed from the decision to withdraw that support, particularly when the regime imposed removes from asylum-seekers the ability to fend for themselves by earning money while they remain in that category and thereby have no means to support themselves. The statutory imposition of a regime which prohibited asylum seekers from working and/or receiving grants when they were destitute amounted to positive action directed against them and not to mere inaction, thereby constituting ‘treatment’ within the meaning of Article 3 (R(Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 applied).

[Adapted from INTERIGHTS summary, with permission]

"A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life." Para. 7.

"It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed." Para. 9.

"But it would be wrong to lend any encouragement to the idea that the test is more exacting where the treatment or punishment which would otherwise be found to be inhuman or degrading is the result of what Laws LJ refers to as legitimate government policy. That would be to introduce into the absolute prohibition, by the backdoor, considerations of proportionality. They are relevant when an obligation to do something is implied into the Convention. In that case the obligation of the state is not absolute and unqualified. But proportionality, which gives a margin of appreciation to states, has no part to play when conduct for which it is directly responsible results in inhuman or degrading treatment or punishment. The obligation to refrain from such conduct is absolute." Para 55.

"Withdrawal of support will not in itself amount to treatment which is inhuman or degrading in breach of the asylum-seeker's article 3 Convention right. But it will do so once the margin is crossed between destitution within the meaning of section 95(3) of the 1999 Act and the condition that results from inhuman or degrading treatment within the meaning of the article." Para. 57.

"A state of destitution that qualifies the asylum-seeker for support under section 95 of the 1999 Act will not be enough. But as soon as the asylum seeker makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity the Secretary of State has the power under section 55(5)(a), and the duty under section 6(1) of the Human Rights Act 1998, to act to avoid it." Para. 59.

Judges: Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under Heywood Lawyers: For the Appellants: Nigel Giffin QC, John-Paul Waite and Kate Grange instructed by Treasury Solicitor. For the Respondents: Nicholas Blake QC and Christopher Jacobs instructed by: White Ryland (Limbuela and Tesema) and H C L Hanne & Co (Adam)
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