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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    47.  The fact that an act of a positive nature is required to prevent the treatment from attaining the minimum level of severity which engages the prohibition does not alter the essential nature of the article. The injunction which it contains is prohibitive and the prohibition is absolute. If the effect of what the state or the public authority is doing is to breach the prohibition, it has no option but to refrain from the treatment which results in the breach. This may mean that it has to do something in order to bring that about. In some contexts rights which are not expressly stated in the Convention may have to be read into it as implied rights: see Brown v Stott [2003] 1 AC 681, 703D-G, 719E-H. But the right not to be subjected to inhuman or degrading treatment or punishment is not an implied right. Treatment of that kind is expressly prohibited by the article.

    48.  Issues of proportionality may arise where it is argued, as it was in R(Pretty) v Director of Public Prosecutions (Secretary of State for the Home Department intervening) [2002] 1 AC 800, that the public authority - in that case, the Director - is under an implied obligation to do something to avoid an incompatibility with the article for which he is not directly responsible. One of the questions which arose in that case was whether the Director's refusal to give the undertaking that Mrs Pretty's husband would not be prosecuted if he assisted her in her wish to commit suicide was incompatible with the article because it was disproportionate. But the situation in that case was entirely different from that which arises in this case, where the public authority which created the regime that surrounds the section 55 asylum-seeker is directly responsible for the treatment which is said to breach the Convention right. It was not suggested in Pretty that the Director had done anything which was directly prohibited by the article. Where the public authority is directly responsible for the treatment the express prohibition in the article applies, and it is absolute.

Laws LJ's spectrum analysis

    49.  In the Court of Appeal Laws LJ drew a distinction between what he described as breaches of article 3 which consist in violence by state servants and breaches which consists in acts or omissions by the state which expose the claimant to suffering inflicted by third parties or by circumstances: [2004] QB 1440, 1464, para 59. He recognised that the distinction which he was drawing was not the same as that which exists between positive and negative obligations: p 1466, para 63. But at p 1469, para 68 he said that, whereas state violence other than in the limited and specific cases allowed by the law is always unjustified, acts or omissions of the state which expose persons to suffering other than violence, even suffering which may in some instances be as grave from the victim's point of view as acts of violence which would breach article 3, are not categorically unjustifiable. They may, he said, be capable of justification if they arise in the administration or execution of government policy.

    50.  At p 1469, para 70 he drew the following conclusions from this analysis:

    "In my judgment the legal reality may be seen as a spectrum. At one end there lies violence authorised by the state but unauthorised by law. This is the worst case of category (a) and is absolutely forbidden. In the British state, I am sure, it is not a reality, only a nightmare. At the other end of the spectrum lies a decision in the exercise of lawful policy, which however may expose the individual to a marked degree of suffering, not caused by violence but by the circumstances in which he finds himself in consequence of the decision. In that case the decision is lawful unless the degree of suffering which it inflicts (albeit indirectly) reaches so high a degree of severity that the court is bound to limit the state's right to implement the policy on article 3 grounds."

    51.  In the following paragraph he said that the point upon the spectrum which marked the dividing line was at the place between cases where government action is justified notwithstanding the individual's suffering and cases where it is not. He said that a person is not degraded in the particular, telling sense, if his misfortune is no more - and, of course, no less - than to be suffering (not violence) by the application of government policy:

    "I do not mean to sideline such a person's hardships, which may be very great. I say only that there is a qualitative difference, important for the reach of article 3, between such a case and one where the state, by the application of unlawful violence, treats an individual as a thing and not a person." (p 1470, para 71)

    52.  In his conclusions of principle on article 3 at p 1473, para 77 he said that where article 3 is deployed to challenge the circumstances of lawful government policy whose application consigns an individual to circumstances of serious hardship, the article is no more nor less than the law's last word. It operated as a safety net, confining the state's freedom of action only in exceptional or extreme cases. This was the approach which led him to conclude at p 1474, para 81 that on the proved or admitted facts none of these case exhibited exceptional features so as to require the Secretary of State to act under section 55(5)(a). Carnwath and Jacob LJJ said that they agreed with Laws LJ's spectrum analysis: pp 1484, 1490, paras 118 and 140. But they reached a different conclusion on the facts.

    53.  I must confess to a feeling of unease about this analysis. It has no foundation in anything of the judgments that have been delivered by the European Court, and it is hard to find a sound basis for it in the language of article 3. The only classification that exists in the European Court's jurisprudence is the result of its recognition that article 3 may require states to provide protection against inhuman or degrading treatment or punishment for which they themselves are not directly responsible, including cases where such treatment is administered by private individuals: Pretty v United Kingdom 35 EHRR 1, 32-33, para 51. Where the inhuman or degrading treatment or punishment results from acts or omissions for which the state is directly responsible there is no escape from the negative obligation on states to refrain from such conduct, which is absolute. In most cases, of course, it will be quite unnecessary to consider whether the obligation is positive or negative. The real issue, as my noble and learned friend Lord Brown of Eaton-under-Heywood has indicated, is whether the state is properly to be regarded as responsible for the conduct that is prohibited by the article.

    54.  But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

    "As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases 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, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3.

    55.  So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity. It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied. 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.

Section 55(5)(a) in practice

    56.  The first question that needs to be addressed is whether the case engages the express prohibition in article 3. It seems to me that there can only be one answer to this question if the case is one where the Secretary of State has withdrawn support from an asylum-seeker under section 55(1) of the 2002 Act. The decision to withdraw support from someone who would otherwise qualify for support under section 95 of the 1999 Act because he is or is likely to become, within the meaning of that section, destitute is an intentionally inflicted act for which the Secretary of State is directly responsible. He is directly responsible also for all the consequences that flow from it, bearing in mind the nature of the regime which removes from asylum-seekers the ability to fend for themselves by earning money while they remain in that category. They cannot seek employment for at least 12 months, and resort to self-employment too is prohibited. As the Court of Appeal said in R (Q) v Secretary of State for the Home Department [2004] QB 36, 69, para 57, the imposition by the legislature of a regime which prohibits asylum-seekers from working and further prohibits the grant to them, when they are destitute, of support amounts to positive action directed against asylum-seekers and not to mere inaction. This constitutes "treatment" within the meaning of the article.

    57.  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. This is the background to the second question which is whether, if nothing is done to avoid it, the condition of the asylum-seeker is likely to reach the required minimum level of severity. The answer to this question provides the key to the final question, which is whether the time has come for the Secretary of State to exercise his power under section 55(5)(a) to avoid the breach of the article.

    58.  The test of when the margin is crossed for the purposes of section 55(5)(a) of the 2002 Act is a different one from that which is used to determine whether for the purposes of section 95 of the 1999 Act the asylum-seeker is destitute. By prescribing a different regime for late claims for asylum, the legislation assumes that destitution, as defined in section 95(3), is not in itself enough to engage section 55(5)(a). I think that it is necessary therefore to stick to the adjectives used by article 3, and to ask whether the treatment to which the asylum-seeker is being subjected by the entire package of restrictions and deprivations that surround him is so severe that it can properly be described as inhuman or degrading treatment within the meaning of the article.

    59.  It is possible to derive from the cases which are before us some idea of the various factors that will come into play in this assessment: whether the asylum-seeker is male or female, for example, or is elderly or in poor health, the extent to which he or she has explored all avenues of assistance that might be expected to be available and the length of time that has been spent and is likely to be spent without the required means of support. The exposure to the elements that results from rough-sleeping, the risks to health and safety that it gives rise to, the effects of lack of access to toilet and washing facilities and the humiliation and sense of despair that attaches to those who suffer from deprivations of that kind are all relevant. Mr Giffin QC for the Secretary of State accepted that there will always in practice be some cases where support would be required - for example those cases where the asylum-seeker could only survive by resorting to begging in the streets or to prostitution. But the safety net which section 55(5)(a) creates has a wider reach, capable of embracing all sorts of circumstances where the inhumanity or degradation to which the asylum-seeker is exposed attracts the absolute protection of the article.

    60.  It was submitted for the Secretary of State that rough sleeping of itself could not take a case over the threshold. This submission was based on the decision in O'Rourke v United Kingdom, (Application No 39022/97) (unreported) 26 June 2001. In that case the applicant's complaint that his eviction from local authority accommodation in consequence of which he was forced to sleep rough on the streets was a breach of article 3 was held to be inadmissible. The court said that it did not consider that the applicant's suffering following his eviction attained the requisite level to engage article 3, and that even if it had done so the applicant, who was unwilling to accept temporary accommodation and had refused two specific offers of permanent accommodation in the meantime, was largely responsible for the deterioration in his health following his eviction. As Jacob LJ said in the Court of Appeal [2004] QB 1440, 1491, para 145, however, the situation in that case is miles way from that which confronts section 55 asylum-seekers who are not only forced to sleep rough but are not allowed to work to earn money and have no access to financial support by the state. The rough sleeping which they are forced to endure cannot be detached from the degradation and humiliation that results from the circumstances that give rise to it.

    61.  As for the final question, the wording of section 55(5)(a) shows that its purpose is to prevent a breach from taking place, not to wait until there is a breach and then address its consequences. A difference of view has been expressed as to whether the responsibility of the state is simply to wait and see what will happen until the threshold is crossed or whether it must take preventative action before that stage is reached. In R (Q) v Secretary of State for the Home Department [2004] QB 36 the court said that the fact that there was a real risk that the asylum-seeker would be reduced to the necessary state of degradation did not of itself engage article 3, as section 55(1) required the Secretary of State to decline to provide support unless and until it was clear that charitable support had not been provided and the individual was incapable of fending for himself: p 70, para 63. But it would be necessary for the Secretary of State to provide benefit where the asylum-seeker was so patently vulnerable that to refuse support carried a high risk of an almost immediate breach of article 3: p 71, para 68. In R (Zardasht) v Secretary of State for the Home Department [2004] EWHC 91 (Admin) Newman J asked himself whether the evidence showed that the threshold of severity had been reached. In R (T) v Secretary of State for the Home Department 7 CCLR 53 the test which was applied both by Maurice Kay J in the Administrative Court and by the Court of Appeal was whether T's condition had reached or was verging on the degree of severity described in Pretty v United Kingdom 35 EHRR 1.

    62.  The best guide to the test that is to be applied is, as I have said, to be found in the use of the word "avoiding" in section 55(5)(a). It may be, of course, that the degree of severity which amounts to a breach of article 3 has already been reached by the time the condition of the asylum-seeker has been drawn to his attention. But it is not necessary for the condition to have reached that stage before the power in section 55(5)(a) is capable of being exercised. It is not just a question of "wait and see". The power has been given to enable the Secretary of State to avoid the breach. 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.

Conclusion

    63.  For the reasons already mentioned, the respondents no longer have any claim for asylum support by virtue of section 55(5)(a) of the 2002 Act. But it is right nevertheless that we should dispose of these appeals. I agree with the majority in the Court of Appeal that there are no grounds for interfering with the conclusions of the judges who heard these applications. In each case there was sufficient evidence to justify the conclusion that there was an imminent prospect that the way they were being treated by the Secretary of State, in the context of the entire regime to which they were being subjected by the state, would lead to a condition that was inhuman or degrading. I would dismiss the appeals.

LORD SCOTT OF FOSCOTE

My Lords,

    64.  I have had the advantage of reading in advance the opinions on these appeals of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood and am in agreement with them that for the reasons they give these appeals should be dismissed. There is very little that I wish to add.

    65.  An issue that troubled me initially was whether for the purposes of article 3 of the European Convention on Human Rights there had been any relevant "treatment" of the respondents by the Secretary of State or the officials for whom he is responsible. The article declares that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. No question arises in these three cases as to either "torture" or "punishment". It is, however, in issue whether the respondents were the recipients of "treatment".

    66.  It was submitted by Mr Giffin QC, counsel for the Secretary of State, that a failure by the state to provide an individual within its jurisdiction with accommodation and the wherewithal to acquire food and the other necessities of life could not by itself constitute "treatment" for article 3 purposes. I agree with that submission, whether the individual in question is an asylum seeker or anyone else. It is not the function of article 3 to prescribe a minimum standard of social support for those in need (c/f Chapman v United Kingdom (2001) 33 EHRR 399). That is a matter for the social legislation of each signatory state. If individuals find themselves destitute to a degree apt to be described as degrading the state's failure to give them the minimum support necessary to avoid that degradation may well be a shameful reproach to the humanity of the state and its institutions but, in my opinion, does not without more engage article 3. Just as there is no ECHR right to be provided by the state with a home, so too there is no ECHR right to be provided by the state with a minimum standard of living: "treatment" requires something more than mere failure.

    67.  The situation seems to me, however, to be quite different if a statutory regime is imposed on an individual, or on a class to which the individual belongs, barring that individual from basic social security and other state benefits to which he or she would, were it not for that statutory regime, be entitled. The social legislation in this country does make provision for accommodation and welfare benefits to be made available to asylum seekers who would otherwise be destitute. As Lord Bingham has explained, section 95 of the Immigration and Asylum Act 1999 does so (see para 3 of his opinion). It was necessary for provision of that sort to be made because asylum seekers are, by the conditions on which they are permitted temporary residence in this country, barred from working. So they cannot by their own efforts obtain the funds by means of which to support themselves.

    68.  The problem that has led to this litigation arises, however, because section 55(1) of the 2002 Act forbade the Secretary of State from providing support to those asylum seekers who in his opinion had failed to make their claim for asylum as soon as practicable after their arrival in the United Kingdom. These asylum seekers were removed by section 55(1) from those destitute asylum seekers for whom the Secretary of State was able to provide under the various statutory powers that would otherwise have been available for that purpose. This removal, coupled with the bar on their supporting themselves by their own labour, plainly, in my opinion, constitutes "treatment" of them for article 3 purposes.

    69.  An analogy would, I think, be a bar from medical treatment under the NHS. The ECHR does not require signatory states to have a national health scheme free at the point of need. In this country we have such a scheme. Asylum seekers are entitled to make use of it whether or not they have applied for asylum as soon as practicable after arrival here. The section 55(1) bar on provision of support does not extend to a ban on medical treatment under the NHS. But suppose that it did. It could not, in my opinion, sensibly be argued that a statutory bar preventing asylum seekers, or a particular class of asylum seekers, from obtaining NHS treatment would not be treatment of them for article 3 purposes.

    70.  Each of these appellants was caught by the section 55(1) bar, subject only to the long-stop relief provided by section 55(5). That sub-section, coupled with section 6 of the Human Rights Act 1998, placed the Secretary of State under a mandatory obligation to them - and to any other destitute asylum seeker caught by section 55(1) - to exercise his various powers to make provision for them "for the purpose of avoiding a breach of [their] Convention rights (within the meaning of the Human Rights Act 1998)" (s 55(5) of the 2002 Act). The Convention right in play is their right not to be subjected to "inhuman or degrading treatment" (article 3). So the question is whether their respective states of destitution, brought about by the combination of the removal of entitlement to benefits (other than necessary medical assistance) and the bar on their engaging in any money earning activity, had reached the degree of severity necessary to constitute a state of degradation for article 3 purposes.

    71.  My Lords I have no doubt that, in the cases of Mr Adam and Mr Limbuela, the Court of Appeal was correct in concluding that it had. And, in my opinion, the same conclusion would have been justifiable in the case of Mr Tesema. None of the three had any funds of his own with which to obtain accommodation. Mr Adam had to sleep rough, out of doors, for about a month. Mr Giffin submitted on behalf of the Secretary of State that being obliged to sleep out of doors did not necessarily reach the requisite standard of severity as to constitute degradation. As a general proposition I can agree with that. Most of us will have slept out of doors on occasion; sometimes for fun and occasionally out of necessity. But these occasions lack the features of sleeping rough that these respondents had to endure under the statutory regime imposed on them. Not only did they have to face up to the physical discomfort of sleeping rough, with a gradual but inexorable deterioration in their cleanliness, their appearance and their health, but they had also to face up to the prospect of that state of affairs continuing indefinitely. People can put up with a good deal of discomfort and privation if they know its duration is reasonably short-lived and finite. Asylum seekers caught by section 55(1) do not have that comfort. Growing despair and a loss of self-respect are the likely consequences of the privation to which destitute asylum seekers, with no money of their own, no ability to seek state support and barred from providing for themselves by their own labour are exposed.

    72.  The combination of section 55(1) and section 55(5) places the Secretary of State in a difficult and unenviable position. Subsection (1) makes it positively unlawful for him to provide support to any asylum seeker who has not made his asylum claim "as soon as reasonably practicable". But subsection (5), in conjunction with section 6 of the 1998 Act, requires him to provide that support "to the extent necessary for the purpose of avoiding …" (emphasis added) a breach of the asylum seeker's article 3 right not to be subjected to inhuman or degrading treatment. The statutory reference to "avoiding", rather than to "remedying" or "remedying as soon as practicable" or to other like words, indicate that the Secretary of State is expected to take action before a breach of the Convention right has occurred. A literal approach to subsections (1) and (5) would create for the Secretary of State an impossible tightrope to tread. He would be bound to fall off one side or the other in almost every case. But he cannot be expected to take action to relieve the destitution of an asylum seeker until he knows of it. And he must be allowed some judgmental latitude in deciding whether the destitute state of a particular asylum seeker is imminently approaching the severity threshold, or has crossed the threshold, of article 3 degradation. For my part, 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. Subject to that I agree that each case would have to be judged on its own facts.

 
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