R (on the application of Q) v. Secretary of State for the Home Department

[2003] All ER (D) 409 (Oct); [2003] EWHC 2507 (Admin); [2004] QB 36 [2003]; EWCA Civ 364, [2003] 2 All ER 905
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F, M, D, B, J and Q were six asylum-seekers who had sought assistance from the Secretary of State under the Nationality, Immigration and Asylum Act, 2002. As per section 55 of the Act, the Secretary of State may not provide support to an asylum-seeker, if the Secretary “is not satisfied that the claim was made as soon as reasonably practicable after the person’s arrival in the United Kingdom.” Prior to section 55, any asylum-seeker who lacked adequate accommodation or could not provide for their essential living needs could receive assistance from the Secretary of State. Section 55(5) of the Act grants an exemption for when not providing assistance would violate the asylum-seekers rights under the European Convention of Human Rights. The Secretary refused the claims made by the six asylum-seekers on the ground mentioned under section 55 of the Act.

The asylum-seekers filed an application for judicial review. The High Court allowed the application and quashed the decisions primarily on the grounds that the procedure adopted in each case was not fair. The Secretary of State appealed this decision to this Court.

The Court upheld the High Court’s quashing of the decisions finding that the Secretary of State hadn’t used a fair process.

The Court construed the regulatory requirement to mean “could the asylum seeker reasonably have been expected to claim asylum earlier than he or she did?” The resolution of the question depended on the person’s personal circumstances, including their state of mind. Because of this interpretation, the Court accepted that whether an asylum-seeker was misled or misinformed is applicable to deciding whether they acted reasonably, in contrast to the Attorney General’s interpretation.

The Court applied the principle of fairness to the asylum seeking process. Using this principle, the Court held that the system used by the Secretary of State was not a fair one. This was because (i) the applicant was not explained the purpose of the interview in clear terms, (ii) the caseworkers were not directed to the meaning of ‘reasonably practicable’ (iii) the Secretary of State did not have regard for the applicant’s state of mind on arrival (iv) the interviewer failed to ascertain the reason as to why the applicant failed to claim support on arrival (v) the interviewer and the decision maker were not the same person and (vi) the applicant was not provided with an opportunity to rebut the suggestion of incredibility when the decision maker felt that the applicant was not telling the truth.

The Court found that Article 3 (freedom from torture), and potentially Article 8 (right to private and family life), could be violated by not providing assistance to an asylum-seeker. The legislative imposition that limits asylum-seekers from supporting themselves and now includes a deprivation of assistance qualifies as a positive action, and thus treatment, under Article 3. Charity is not sufficient protection against possible destitution to relieve the obligation from the government. The Court notes that Article 8 may also be violated, but it’s less likely than Article 3. There was no evidence that the situation of any of the six asylum-seekers rose to the level of a violation of a Convention right.

The Court held that the lack of an appeal in section 55 violated Article 6 of the Covenant (right to due process).

Two of the applicants, J and Q, were set aside as they were granted second interviews and either were awaiting the outcome or were found to have claimed asylum as soon as reasonably practicable.

“The imposition by the legislature of a regime which prohibits asylum-seekers from working and further prohibits the grant to them, when they [*923] are destitute, of support amounts to positive action directed against asylum-seekers and not to mere inaction [and thus qualifies as treatment under Article 3 of the Convention].” (Para. 57)

“The importance of ensuring that the system is fair to applicants, as well of course as to the public interest, seems to us to be of particular importance in the circumstances with which s 55 is concerned. Section 55(1) is or is potentially of draconian effect because, subject to s 55(5), it prevents the Secretary of State from providing benefit to applicants who are destitute, since its whole purpose is to disapply s 95 of the 1999 Act, which of course only applies to applicants who are destitute as defined in that section.” (Para. 71)

“The Strasbourg jurisprudence establishes that where the initial decision as to civil rights is taken by a person or persons who cannot be described as ‘an independent and impartial tribunal', the fact that the decision is subject to judicial review can satisfy art 6. At the end of the day, however, the process as a whole must be capable of fairly determining the civil rights that are in play. The inadequacies of the procedure, which we and Collins J have identified, rendered it impossible for the officials of the Secretary of State to make an informed determination of matters central to the asylum-seekers’ civil rights. The consequence of this is that the court conducting the judicial review was equally unable to do so. All that the court could do was to quash the decisions. In these circumstances Collins J held that the requirements of art 6 were not satisfied. We agree with his conclusion.” (Para. 116)