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|Session 2005 - 06|
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Regina v. Secretary of State for the Home Department (Appellant) ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent) (Conjoined Appeals)
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LORD BINGHAM OF CORNHILL
1. In what circumstances does the Secretary of State become entitled and obliged, pursuant to section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002, to provide or arrange for the provision of support to an applicant for asylum where the Secretary of State is not satisfied that the claim for asylum was made as soon as reasonably practicable after the applicant's arrival in the United Kingdom? That is the issue in these appeals. In answering it I adopt with gratitude the summary given by my noble and learned friend Lord Hope of Craighead of the facts, so far as material, and the relevant legislation.
2. It is well known that the very sharp rise in the number of applications for asylum over the last decade or so has given rise to a number of administrative and other problems. The legislative response of successive governments has been founded on two premises in particular: that while some of the applications are made by genuine refugees, having a well-founded fear of persecution in their home countries, a majority are not but are made by so-called economic migrants, applicants seeking a higher standard of living than is available in their home countries; and that the UK is an attractive destination for such migrants because it treats, or is widely believed to treat, such applicants more generously than other countries. Thus provisions have been enacted with the object, first, of encouraging applicants to claim asylum very promptly. This is because it is thought that claims made promptly are more likely to be genuine, because such claims are easier to investigate, and because if claims are made promptly and are judged to be ill-founded, the return of the unsuccessful applicant to his country of origin is facilitated. It has also been sought, secondly, to restrict the access of asylum applicants to public funds. The object is to reduce the burden on the public purse; to restrict public support, so far as possible, to those who both need and deserve it; to mitigate the resentment widely felt towards unmeritorious applicants perceived as battening on the British taxpayer; and to discourage the arrival here of economic migrants by dispelling the international belief that applicants for asylum are generously treated. The policy and purposes underlying and expressed in a series of enactments are not in issue in these appeals. They represent a legislative choice, and the issue between the parties turns on the application of the parliamentary enactments now current.
3. Section 95 of the Immigration and Asylum Act 1999 authorises the Secretary of State to provide or arrange for the provision of support for asylum-seekers and their dependants who appear to the Secretary of State to be destitute, as defined, or likely to become so within a prescribed period. That authority is revoked by section 55(1) of the Nationality, Immigration and Asylum Act 2002 where a person makes a recorded claim for asylum but the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the UK. Each of the three respondents made recorded claims for asylum on the day of arrival in the UK or the day after, but the Secretary of State was not satisfied that any of them had made the claim as soon as practicable, and his conclusions on that point give rise to no live issue. If the legislation ended there, it would be plain that the Secretary of State could not provide or arrange for support of the respondents, even if he wished, and however dire their plight.
4. But the legislation does not end there. The prohibition in section 55(1) is qualified by section 55(5). Paragraphs (b) and (c) of subsection (5) are not immediately pertinent to these appeals, since each of the respondents is a single adult, but they show a clear parliamentary intention that the prohibition in subsection (1) should not subject children and young persons to deleterious privation. In paragraph (a) of subsection (5) Parliament recognised that the prohibition in subsection (1) could lead to a breach of an applicant's rights under the European Convention on Human Rights, which public authorities including the Secretary of State and the courts are obliged to respect by section 6 of the Human Rights Act 1998.
5. Thus 55(5)(a) authorised the Secretary of State to provide or arrange for the provision of support to a late applicant for asylum to the extent necessary for the purpose of avoiding a breach of that person's Convention rights. But the Secretary of State's freedom of action is closely confined. He may only exercise his power to provide or arrange support where it is necessary to do so to avoid a breach and to the extent necessary for that purpose. He may not exercise his power where it is not necessary to do so to avoid a breach or to an extent greater than necessary for that purpose. Where (and to the extent) that exercise of the power is necessary, the Secretary of State is subject to a duty, and has no choice, since it is unlawful for him under section 6 of the 1998 Act to act incompatibly with a Convention right. Where (and to the extent) that exercise of the power is not necessary, the Secretary of State is subject to a statutory prohibition, and again has no choice. Thus the Secretary of State (in practice, of course, officials acting on his behalf) must make a judgment on the situation of the individual applicant matched against what the Convention requires or proscribes, but he has, in the strict sense, no discretion.
6. Article 3 of the European Convention prohibits member states from subjecting persons within their jurisdiction to torture or inhuman or degrading treatment or punishment. Since these appeals do not concern torture or punishment, the focus is on inhuman and degrading treatment. Does the regime imposed on late applicants amount to "treatment" within the meaning of article 3? I think it plain that it does. Section 55(1) prohibits the Secretary of State from providing or arranging for the provision of accommodation and even the barest necessities of life for such an applicant. But the applicant may not work to earn the wherewithal to support himself, since section 8 of the Asylum and Immigration Act 1996, the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225) and standard conditions included in the applicant's notice of temporary admission (breach of which may lead to his detention or prosecution) combine to prevent his undertaking any work, paid or unpaid, without permission, which is not given unless his application has been the subject of consideration for 12 months or more. This question was addressed by the Court of Appeal (Lord Phillips of Worth Matravers MR, Clarke and Sedley LJJ) in R (Q) v Secretary of State for the Home Department  EWCA Civ 364,  QB 36, 69, paras 56-57 and I am in complete agreement with their conclusion.
7. May such treatment be inhuman or degrading? Section 55(5)(a) assumes that it may, and that assumption is plainly correct. In Pretty v United Kingdom (2002) 35 EHRR 1, the European Court was addressing a case far removed on its facts from the present, but it took the opportunity in para 52 of its judgment (which Lord Hope has quoted, and which I need not repeat) to describe the general nature of treatment falling, otherwise than as torture or punishment, within article 3. That description is in close accord with the meaning one would naturally ascribe to the expression. Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. 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. It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to "your mountainish inhumanity".
8. When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
9. 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. I do not regard O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001 as authority to the contrary: had his predicament been the result of state action rather than his own volition, and had he been ineligible for public support (which he was not), the Court's conclusion that his suffering did not attain the requisite level of severity to engage article 3 would be very hard to accept.
10. I agree with the majority of the Court of Appeal  QB 1440 that the first instance judges who found in favour of these respondents are not shown to have erred. For the reasons given by each of my noble and learned friends, and for these reasons of my own, I would dismiss these appeals with costs.
LORD HOPE OF CRAIGHEAD
11. Each of three cases which are before the House in these appeals raises the same question. The respondents were all, at the time when their applications were heard in the Administrative Court, asylum-seekers. The Secretary of State decided that they did not make their claims for asylum as soon as reasonably practicable after their arrival in the United Kingdom. So they were excluded from conventional support by the National Asylum Support Service ("NASS") under Part VI of the Immigration and Asylum Act 1999 ("the 1999 Act") by section 55(1) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). No challenge is now being made in any of these cases to the Secretary of State's decision that asylum was not claimed as soon as reasonably practicable. The question is whether he was nevertheless obliged by section 55(5)(a) of the 2002 Act to provide support for the respondents under Part VI of the 1999 Act ("asylum support") for the purpose of avoiding a breach of their Convention rights within the meaning of the Human Rights Act 1998.
12. In each case the respondents were successful in their applications for relief by way of judicial review against the Secretary of State's decision against them on this point. Permission to appeal was granted in each case to the Secretary of State by the judge in the Administrative Court. But on 21 May 2004 the Court of Appeal (Carnwath and Jacob LJJ, Laws LJ dissenting) dismissed all three appeals:  EWCA Civ 540;  QB 1440.
13. The question whether, and if so in what circumstances, support should be given at the expense of the state to asylum-seekers is, of course, an intensely political issue. No-one can be in any doubt about the scale of the problem caused by the huge rise in the numbers of asylum-seekers that has occurred during the past decade due to the fact that more and more people are in need of international protection. There is a legitimate public concern that this country should not make its resources too readily available to such persons while their right to remain in this country remains undetermined. There are sound reasons of policy for wishing to take a firm line on the need for applications for asylum to be made promptly and for wishing to limit the level of support until the right to remain has been determined, if and when support has to be made available.
14. It is important to stress at the outset, however, that engagement in this political debate forms no part of the judicial function. The function which your Lordships are being asked to perform is confined to that which has been given to the judges by Parliament. It is to construe the provisions of section 55(5)(a) of the 2002 Act and to apply that subsection, so construed, to the facts of each case. However, as the application of the subsection is no longer a live issue in any of these three cases for reasons that I shall explain, the judicial function that is to be performed here can be expressed more broadly. It is to provide as much guidance as we can to the Secretary of State as to the legal framework within which he must decide whether support must be made available.
15. As Laws LJ said in the Court of Appeal  QB 1440, 1463, para 57, the fact that judges of the Administrative Court felt driven to take contrasting positions as to the right test for the engagement of section 55(5)(a) of the 2002 Act, notwithstanding the attention given to the subsection in two previous decisions of the Court of Appeal (R (Q) v Secretary of State for the Home Department  QB 36 and R (T) v Secretary of State for the Home Department (2003) 7 CCLR 53), shows that the law in this area has got into difficulty. The problem has not been eased by the fact that, because of differences in their approach to the facts, the decision of the judges in the Court of Appeal in this case was not unanimous. So it is on a search for a solution to this problem that I propose to concentrate. Proper attention to the legal framework is the best means of ensuring that decisions are arrived at fairly and consistently in accordance with the legislation that has been enacted by Parliament.
16. The material which has been laid before us by Parliament for this purpose consists of the following: section 95 of the 1999 Act, section 55 of the 2002 Act, sections 2 and 6 of the Human Rights Act 1998 and article 3 of the European Convention on Human Rights. But it is first necessary to set out the facts of the three cases which are before us, as they provide the context for the examination of this material.
17. I propose first to summarise the facts of each of the three cases as disclosed by the judgments at first instance and by the Agreed Statement of Facts and Issues. The account which each of the appellants gave as to how and when they arrived in the United Kingdom was not accepted by the Secretary of State, but nothing turns on this now as the issue is confined to the questions raised by section 55(5) of the 2002 Act. I shall then mention some of the additional material which was before the Court of Appeal.