Judgments - 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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    18.  Mr Wayoka Limbuela is a national of Angola, now aged 25. He maintains that he arrived in the United Kingdom at an unknown airport accompanied by an agent on 6 May 2003. On the same day he claimed asylum at the Asylum Screening Unit in Croydon. In the exercise of the Secretary of State's power to provide accommodation for people given temporary admission under section 4 of the 1999 Act, he was provided with emergency accommodation by NASS in Margate. But on 16 May 2003 the Secretary of State decided that he had not claimed asylum as soon as reasonably practicable. Conventional NASS support under section 95 of the1999 Act was withdrawn from him under section 55(1) of the 2002 Act. The Secretary of State also decided that there were no circumstances in Mr Limbuela's case to justify exempting him from the operation of that subsection, so on 22 July 2003 he was evicted from his NASS accommodation.

    19.  Mr Limbuela then spent two nights sleeping rough outside Croydon Police Station. During this time, he says, he had no money and no access to food or to washing facilities. He asked the police for a blanket, but none was provided to him. He begged for food from passers by, but he was not given anything. On 24 July 2003, having made contact with Migrant Helpline, he was able to obtain accommodation for four nights at the Lord Clyde night shelter in Kennington, where he was also provided with food. But on 28 July 2003 he was asked to leave the shelter. He was advised to contact a solicitor. He did so, and interim relief was applied for and granted by Eady J on the same day. Permission for judicial review of the Secretary of State's decision was then granted by Jackson J in relation to the issue raised by section 55(5) only.

    20.  When his application for judicial review came before Collins J the position was that Mr Limbuela had only had to sleep rough and been deprived of all support for two days. But Collins J was satisfied by the evidence that had been put before him that the support that he was getting from the charity in Kennington had come to an end on 28 July 2003, that thereafter he would have had nothing and that, had it not been for the granting of interim relief, he would have been obliged to sleep rough and to beg for food or find some other possible means of subsistence.

    21.  The evidence which was before Collins J mentioned a number of other difficulties. Mr Limbuela said that he had problems with his lower abdomen when he was interviewed on 16 May 2003. In witness statements prepared for the hearing in the Administrative Court he said that he was suffering from stomach pains for which he had been prescribed medication to take three times a day before meals. He also said that he suffered from problems with his testicles and had been in a great deal of pain. A letter from a GP was produced dated 2 February 2004 in which it was stated that Mr Limbuela had visited his surgery on three occasions since August 2003: once suffering from constipation, once suffering from a cough and once complaining of pain in the lower abdomen and testicles, dizziness and heartburn, for each of which appropriate medication had been prescribed. Mr Limbuela also stated that he was frightened to sleep outside because of his experience of the police in his own country, where he had been detained for one and a half months and beaten with sticks.

    22.  On 4 February Collins J granted Mr Limbuela's application for judicial review. He said that the claimant had established that, were he to be deprived of support, he would have no access to overnight accommodation and that his chances of obtaining food and other necessary facilities during the day would be remote. He would, as the judge put it, be reduced to begging or traipsing around London in the hope of finding somewhere which might provide him, perhaps irregularly, with some degree of assistance. That in his judgment, particularly in winter time, was quite sufficient to reach the threshold for what may be described as degrading treatment set by the European Court in Pretty v United Kingdom (2002) 35 EHRR 1, 33, para 52.

    23.  Mr Limbuela's claim for asylum was rejected on 10 June 2003. His appeal was dismissed by the adjudicator on 1 September 2003 and it was dismissed again on 26 July 2004 after it had been remitted back for reconsideration. Following further proceedings in the Immigration Appeal Tribunal his claim to asylum has been determined. He no longer has any claim to asylum support by virtue of section 55(5)(a) of the 2002 Act as he is no longer an asylum-seeker.

Tesema

    24.  Mr Binyam Tefera Tesema is a national of Ethiopia, of Oromo ethnic origin. He is now aged 28. He says that he arrived in the United Kingdom at an unknown airport accompanied by an agent on 13 August 2003. He spent that night in accommodation at an hotel which his agent had arranged for him. He claimed asylum at the Asylum Screening Unit in Croydon the next day when he was interviewed and was provided with emergency accommodation by NASS. He was interviewed again on 17 August 2003. On 20 August 2003 the Secretary of State decided that he had not claimed asylum as soon as reasonably practicable, so conventional NASS support was withdrawn from him under section 55(1) of the 2002 Act. The Secretary of State also decided that there were no circumstances to justify exempting him from the effects of that subsection.

    25.  On 2 September 2003, when he was on the point of being evicted from his emergency NASS accommodation and had no option other than to sleep on the street without shelter, Mr Tesema applied for interim relief and this was granted by Henriques J the same day. On 27 October 2003 Jackson J granted permission for judicial review in relation to the issue raised by section 55(5) only.

    26.  When his application for judicial review came before Gibbs J Mr Tesema's position was that he had never slept rough. But he maintained that if he were to be evicted from his accommodation he would require to sleep on the streets, that his health would suffer and that he would have no money for food and would be forced to beg. He referred to various medical problems when he was being interviewed in August 2003. He said that he suffered from earache, backache and pain in his left knee and that these were the result of beatings. Further details of his medical problems were provided in a report dated 1 January 2004 by Dr Philip Steadman, a consultant psychiatrist. He said that Mr Tesema presented with ongoing psychological difficulties consisting of a lowering of mood and anxiety symptoms. In his view the knee and back pain of which he complained and some loss of hearing in both ears could have been caused by beatings, as he alleged. In a later witness statement Mr Tesema stated that when he was evicted on 2 September 2003 he felt traumatised and distressed with constant headaches and that he felt that his health would deteriorate to the point where he would become suicidal.

    27.  Mr Tesema also gave details in his witness statements of various steps that he had taken to try to obtain support. He had made regular approaches to the Oromo Community in London asking for support, but they had been unable to provide it. He had also contacted the Ethiopian Community Centre and the Eritrean Communities in Hammersmith and in Haringey. But they too had stated that they were unable to provide him with support and accommodation.

    28.  On 16 February 2004 Gibbs J granted Mr Tesema's application for judicial review. He said that it was clear that the claimant would have no shelter if he were to be evicted, that he would have no money for food and that it was highly doubtful whether, other than in any public lavatories nearby, he would have sanitary facilities at night although he might have some access to intermittent services in the daytime. He concluded that it was not lawful for the Secretary of State to take a decision which compels a person to sleep on the streets with no financial support when he is in this country not as a citizen but as an applicant for asylum awaiting a decision on his claim.

    29.  Mr Tesema's claim for asylum was rejected on 20 August 2003. His appeal to the Adjudicator was allowed on 14 January 2004. The Secretary of State was given leave to appeal against that decision, but the appeal was decided in Mr Tesema's favour. He no longer has a claim for asylum support by virtue of section 55(5)(a) of the 2002 Act as he has now been recognised as a refugee.

Adam

    30.  Mr Yusif Adam claims that he is a Sudanese national. He is now aged 29. He says that he arrived in the United Kingdom by cargo ship at an unknown seaport accompanied by an agent on 15 October 2003. He claimed asylum at the Asylum Screening Unit in Croydon on 16 October 2003. On the same day the Secretary of State decided that he had not claimed asylum as soon as reasonably practicable, that he was thus excluded from conventional NASS support by section 55(1) of the 2002 Act and that the circumstances of his case were not such as to exempt him from the operation of that subsection.

    31.  From that day until 10 November 2003, when Ouseley J granted interim relief and permission for judicial review, Mr Adam had nowhere else to go, so he slept in a sleeping bag in a car park outside the Refugee Council in Brixton. He had access to the Refugee Council's premises during the day, when he was able to wash himself and his clothes, get tea and coffee in the morning, a hot meal at 1 pm and sometimes another meal in the evening. In his witness statement of 4 November 2003 Mr Adam said that there was no shelter in the car park and that when it rained he became cold and wet. He was unable to sleep properly at night because of the need to be vigilant. On one occasion he was awoken by a man who shouted abuse and threw a can at him. He had also been moved on by the police. He had lost weight, was developing a cough and felt that his mental and physical health had deteriorated. He felt totally humiliated at having to live in a car park. His solicitor, Sophia Linehan, said that whenever he came to see her Mr Adam appeared cold, bewildered and hungry and could not understand why he had to live in a car park.

    32.  On 17 February 2004 Charles J granted Mr Adam's application for judicial review. He noted that the assertion that he had been living rough for about a month was not challenged. He said that in his judgment this was a sufficient period to demonstrate that, if the claimant had access to funds or help when he arrived in this country, his funds were now exhausted and such help was no longer available. The claimant had established with sufficient clarity the extent of the charitable support that he had received and that it was unlikely that he would get more. In particular it was unlikely that he would get overnight accommodation other than from the Secretary of State. He concluded that the claimant's condition had reached or was verging on inhuman or degrading or, to adopt another formulation of the test, that he was actually or imminently within the protection of article 3 of the Convention.

    33.  Mr Adam has now been recognised as a refugee. He is no longer an asylum-seeker, so he no longer has a claim for asylum support by virtue of section 55(5)(a) of the 2002 Act.

Additional material

    34.  The background to the plight in which asylum-seekers without any other means of support find themselves is set by the fact that employers are liable to prosecution if they employ persons who have not been granted leave to enter or remain in the United Kingdom who have not been permitted to work under the Immigration Rules: Asylum and Immigration Act 1996, section 8; Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225), Schedule, Part I, para 3. The notification of temporary admission that is given to asylum-seekers states that they must not enter employment, paid or unpaid, or engage in any business or profession. Provision has been made in para 360 of the Immigration Rules for asylum-seekers who have been waiting for 12 months for an initial decision to apply for permission to take up employment: see Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers, article 11, to which that paragraph gives effect. But permission which is given to take up employment under this rule does not include permission to become self employed or to engage in a business or professional activity. For the first 12 months asylum-seekers and their dependants are prohibited by these restrictions from earning the money they need to maintain themselves.

    35.  Those who have no relatives or other contacts to whom they can turn are driven almost inevitably by this system in search of help to charity. The Secretary of State put in evidence a statement by Michael Sullivan, a caseworker in NASS, which contained a list of day centres in London which were said to offer practical help and advice on benefits and finding accommodation. But Adam Sampson, the Director of Shelter, said in his statement that Shelter's experience is that the section 55 asylum-seekers they see have not been able to gain access to charitable support, or if they have, that it has been limited in duration and extent. For example, there are only two free hostels in London, one for women only which has a capacity of 15, the other for men who must be at least 30 years old which has a capacity of 36. Shelter monitored the availability of bed spaces in these shelters for a period of two months from November 2003 to January 2004. Only two were available during this period in the women's hostel and none were available in the hostel for men.

    36.  As Laws LJ observed [2004] QB 1440, 1454, para 27, Shelter's experience is that there is no realistic prospect of a destitute asylum-seeker obtaining accommodation through a charity. Unless he has family or friends to provide him with accommodation or with funds, he will have to sleep rough. Clients in that situation who come to Shelter for advice are frequently cold, tired, and hungry and have not had access to washing facilities. They display varying degrees of desperation and humiliation as well as mental and physical illnesses. Mr Hugo Tristram of the Refugee Council described the facilities which are available in the council's day centre. Breakfast and a hot lunch are available on weekdays, except for Wednesdays when there are sandwiches. Four showers provide limited washing facilities. The centre is closed in the evenings and at weekends. Despite extensive inquiries the Council has had very limited success in obtaining accommodation for asylum-seekers. For the most part they sleep outside their offices, in doorways or telephone boxes with not enough blankets or clothing to keep them warm. They are often lonely and frightened and feel distressed and humiliated.

The legislation

    37.  Part VI of the1999 Act established a new scheme of support for asylum-seekers which was separate from the existing benefits system. The aim was to exclude asylum-seekers and their dependants from mainstream social security, housing and other assistance. It substituted an alternative system of support that was to be provided to those asylum-seekers and their dependants who were considered by the Secretary of State to be destitute. Support under this system was to be provided directly by the Secretary of State or through arrangements made with local authorities and others such as registered housing associations.

    38.  Section 95 defines the categories of persons to whom support may be provided under Part VI of the Act. Power is given to the Secretary of State to provide support to asylum-seekers and their dependants who appear to him to be destitute. The test of destitution for this purpose is based on the concepts of adequate accommodation and essential living needs. Subsections (1) to (3) of this section are in these terms:

    "(1)  The Secretary of State may provide, or arrange for the provision of, support for -

    (a)  asylum-seekers, or

    (b)  dependants of asylum-seekers,

    who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.

    (2)  In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.

    (3)  For the purposes of this section, a person is destitute if -

    (a)  he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or

    (b)  he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."

    Section 44(6) of the 2002 Act contains an amended definition of what constitutes destitution for the purposes of section 95 of the 1999 Act which substitutes "food and other essential items" for "essential living needs", but it has not yet been brought into force. Section 98 of the 1999 Act supplements the provisions of section 95 by giving power to the Secretary of State to provide temporary support to asylum-seekers or their dependants who it appears to him may be destitute until he is able to determine whether he has power to provide support to them under section 95.

    39.  The system of support that Part VI of the1999 Act laid down remains in force for those who can satisfy the Secretary of State that their claim for asylum was made as soon as reasonably practicable after their arrival in the United Kingdom. In practice a claim which is made to an immigration officer at the port of arrival will always satisfy this test. But their Lordships were provided with statistics which showed that the number of applications that were decided at the port of entry as opposed to those decided in country is relatively low (eg in 2003, 30% at the port and 70% in country). A claim made after the person has passed the point of immigration control is likely to be regarded as having been made too late, unless there are special circumstances. Asylum-seekers who fall into this category are now subject to the provisions of section 55 of the 2002 Act, the relevant provisions of which are as follows:

    "(1)  The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if -

    (a)  the person makes a claim for asylum which is recorded by the Secretary of State, and

    (b)  the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

    (2)  The provisions are -

    (a)  sections 4, 95 and 98 of the Immigration and Asylum Act 1999 (c 33) (support for asylum-seeker, etc), and

    (b)  sections 17 and 24 of this Act (accommodation centre).

    (3)  An authority may not provide or arrange for the provision of support to a person mentioned in subsection (4)  if -

    (a)  the person has made a claim for asylum, and

    (b)  the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.

    (4)  The provisions are -

    (a)  section 29(1)(b) of the Housing (Scotland) Act 1987 (c 26) (accommodation pending review),

    (b)  section 188(3) or 204(4) of the Housing Act 1996 (c 52) (accommodation pending review or appeal), and

    (c)  section 2 of the Local Government Act 2000 (c 22) (promotion of well-being).

    (5)  This section shall not prevent -

    (a)  the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998 (c 42),

    (b)  the provision of support under section 95 of the Immigration and Asylum Act 1999 (c 33) or section 17 of this Act in accordance with section 122 of that Act (children), or

    (c)  the provision of support under section 98 of the Immigration and Asylum Act 1999 or section 24 of this Act (provisional support) to a person under the age of 18 and the household of which he forms part.

    …."

    40.  Section 55(5)(a) of the 2002 Act, whose provisions lie at the heart of this case, must be read together with section 6(1) of the Human Rights Act 1998 which provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. The Secretary of State is, of course, a public authority for the purposes of that subsection. The purpose of section 55(5)(a) is to enable the Secretary of State to provide support where a failure to do so would result in a breach of section 6(1) of the Human Rights Act 1998 because he has acted in a way which is incompatible with a person's Convention rights. Section 55(5)(a) does not extend to local authorities. The Joint Committee on Human Rights said in para 8 of its 23rd Report of the Session 2001-2002 (HL Paper 176: HC 1255) that they found it difficult to imagine a case where a person could be destitute as defined by what is now section 44(6) of the 2002 Act without giving rise to a threat of a violation of articles 3 and/or 8 of the Convention. The same comment could be made under reference to the original definition of the word "destitute" in section 95(3) which, as I have already mentioned, remains in force.

    41.  The Convention right which is relied on in this case is that set out in article 3, which provides:

    "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

    42.  These provisions give rise to two basic questions. One of these is a question of domestic law: how is section 55(5)(a) of the 2002 Act to be construed and analysed? The other is a question of Convention law: in what circumstances will the situation in which asylum-seekers find themselves as a result of the refusal of support under section 55(1) of the 2002 Act amount to a breach of their article 3 Convention rights?

Section 55(5)(a) of the 2002 Act

    43.  The key to a proper understanding of section 55(5)(a) of the 2002 Act lies in its use of the word "avoid" in the phrase "avoiding a breach". The approach which it takes to the provision of support is, of course, different from that which is to be found in section 95 of the 1999 Act. Asylum-seekers who satisfy the Secretary of State that their claim for asylum was made as soon as reasonably practicable after their arrival in the United Kingdom will qualify for NASS support under section 95 if, within the meaning of that section, they are or appear likely to become destitute within 14 days beginning with the day on which this question falls to be determined: Asylum Support Regulations 2000 (SI 2000/704), reg 7. Those who fail to satisfy the Secretary of State on this point have, quite deliberately, been placed into a separate category. That is the effect of section 55(1) of the 2002 Act. The regime which was introduced by the 2002 Act adopts a different and more stringent test in order to identify the stage at which, if at all, asylum-seekers who fall within section 55(1) will qualify.

    44.  Nevertheless, stringent though this new test was no doubt intended to be, the application of section 6(1) of the Human Rights Act 1998 to the acts and omissions of the Secretary of State as a public authority had to be recognised. The purpose of section 55(5)(a), therefore, in this context is to enable the Secretary of State to exercise his powers to provide support under sections 4, 95 and 98 of the 1999 Act and accommodation under sections 17 and 24 of the 2002 Act before the ultimate state of inhuman or degrading treatment is reached. Once that stage is reached the Secretary of State will be at risk of being held to have acted in a way that is incompatible with the asylum-seeker's Convention rights, contrary to section 6(1) of the 1998 Act, with all the consequences that this gives rise to: see sections 7(1) and 8(1) of that Act. Section 55(5)(a) enables the Secretary of State to step in before this happens so that he can, as the subsection puts it, "avoid" being in breach.

Article 3 of the Convention

    45.  Two issues of Convention law require to be examined to complete this analysis. The first is directed to the absolute nature of the prohibition contained in article 3. The second is directed to the adjectives "inhuman or degrading" which identify the nature of the treatment against which the prohibition is directed.

    46.  The head-note to article 3 describes its contents in these terms: "prohibition of torture". But the prohibition that it contains goes further than that. The prohibition extends also to inhuman or degrading treatment or punishment. As the article puts it, "no one shall be subjected to" treatment of that kind. The European Court has repeatedly said that article 3 prohibits torture and inhuman and degrading treatment in terms that are absolute: Chahal v United Kingdom (1996) 23 EHRR 413, 456-457, para 79; D v United Kingdom (1997) 24 EHRR 423, 447-448, paras 47, 49. In contrast to the other provisions in the Convention, it is cast in absolute terms without exception or proviso or the possibility of derogation under article 15: Pretty v United Kingdom 35 EHRR 1, 32, para 49. As the court put it in Pretty, p 32, para 50, article 3 may be described in general terms as imposing a primarily negative obligation on states to refrain from inflicting serious harm on persons within their jurisdiction. The prohibition is in one sense negative in its effect, as it requires the state - or, in the domestic context, the public authority - to refrain from treatment of the kind it describes. But it may also require the state or the public authority to do something to prevent its deliberate acts which would otherwise be lawful from amounting to ill-treatment of the kind struck at by the article.

 
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