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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    73.  The point has been made on behalf of the Secretary of State that the policy that state benefits should not be provided to asylum seekers who do not promptly on arrival in this country make their asylum applications is a lawful policy that should not be frustrated by over-indulgent judicial decisions. The policy in question, however, is only a lawful policy if it does not lead to breaches of article 3 rights of asylum seekers. If and to the extent that it does lead to those breaches it is not a lawful policy. The legislative policy to which expression is given in section 55 requires subsections (1) and (5) to be read together. It was not the legislative policy that the regime imposed on asylum seekers should lead to breaches of their human rights. The legislature expected the Secretary of State to intervene before that state was reached. There is, therefore, no question that your Lordships' decision to dismiss this appeal constitutes a failure to uphold the implementation of a lawful policy.

    74.  I would, for the reasons given more fully by my noble and learned friends, dismiss these appeals.

BARONESS HALE OF RICHMOND

My Lords,

    75.  I also agree that these appeals should be dismissed. Two points deserve emphasis. The first is that we are respecting, rather than challenging, the will of Parliament. Section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 makes it clear that Parliament did not intend, when depriving the Secretary of State of power to provide support for a late claiming asylum seeker, that he should act in breach of that person's Convention rights. Quite the contrary. Parliament expressly provided that the duty to refuse support to such a person does not prevent the exercise of a power by the Secretary of State to the extent necessary to avoid a breach of a person's Convention rights. Thus was the duty of any public authority, under section 6 of the Human Rights Act 1998, to refrain from acting in a way which is incompatible with a Convention right, deliberately preserved. The only question for us, therefore, is whether the provision of some support for these respondents was necessary to avoid a breach of their Convention rights.

    76.  The Convention right in question is the right under article 3, not to be subjected to torture or to inhuman or degrading treatment or punishment. Along with article 2, the right to life, this is the most important of the Convention rights. It reflects the fundamental values of a decent society, which respects the dignity of each individual human being, no matter how unpopular or unworthy she may be. The only question for the Secretary of State, and for us, is whether that right is breached.

    77.  Secondly, in common with my noble and learned friend, Lord Hope of Craighead, I am uneasy with the 'spectrum' analysis developed by Laws LJ in this case and the later case of R (Gezer) v Secretary of State for the Home Department [2004] EWCA Civ 1730. It invites fine distinctions which have no basis in the Convention jurisprudence. That jurisprudence is quite clear in recognising two situations in which the state can be held responsible for somebody's suffering. The first is when the state has itself subjected that person to such suffering. The second is when the state should have intervened to protect a person from suffering inflicted by others. Quite clearly, different considerations arise in the second type of case, and I notice that my noble and learned friend, Lord Brown of Eaton-under-Heywood, has excluded them from his analysis in paragraph 92. The cases before us clearly fall within the first category. The state has taken the Poor Law policy of 'less eligibility' to an extreme which the Poor Law itself did not contemplate, in denying not only all forms of state relief but all forms of self sufficiency, save family and philanthropic aid, to a particular class of people lawfully here. We can all understand the reasons for doing so. But it is of the essence of the state's obligation not to subject any person to suffering which contravenes article 3 that the ends cannot justify the means.

    78.  The only question, therefore, is whether the degree of suffering endured or imminently to be endured by these people reaches the degree of severity prohibited by article 3. It is well known that a high threshold is set but it will vary with the context and the particular facts of the case. There are many factors to be taken into account. Sleeping rough in some circumstances might not qualify. As my noble and learned friend, Lord Scott of Foscote says, no doubt sometimes it can be fun. But this is not a country in which it is generally possible to live off the land, in an indefinite state of rooflessness and cashlessness. It might be possible to endure rooflessness for some time without degradation if one had enough to eat and somewhere to wash oneself and one's clothing. It might be possible to endure cashlessness for some time if one had a roof and basic meals and hygiene facilities provided. But to have to endure the indefinite prospect of both, unless one is in a place where it is both possible and legal to live off the land, is in today's society both inhuman and degrading. We have to judge matters by the standards of our own society in the modern world, not by the standards of a third world society or a bygone age. If a woman of Mr Adam's age had been expected to live indefinitely in a London car park, without access to the basic sanitary products which any woman of that age needs and exposed to the risks which any defenceless woman faces on the streets at night, would we have been in any doubt that her suffering would very soon reach the minimum degree of severity required under article 3? I think not.

    79.  While there can be no hard and fast rules, I would entirely support the practical guidance given in paragraph 7 by my noble and learned friend, Lord Bingham of Cornhill. Accordingly, I too would dismiss these appeals.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    80.  At the start of these proceedings the respondents were three asylum seekers, young men respectively from Angola, Ethiopia and the Sudan, each suffering (or, in Mr Tesema's case, facing) a life of extreme deprivation, sleeping rough on the streets of London, not permitted to work and denied all support. Did the imposition of that regime upon them breach their article 3 right not to be subjected to inhuman or degrading treatment? That ultimately is the question for your Lordships' decision.

    81.  Although the outcome of these appeals will not affect the respondents themselves—Mr Tesema and Mr Adam because both have now been recognised as refugees and Mr Limbuela because his claim has finally failed (since the Court of Appeal's judgment)—their importance has not diminished. Jacob LJ in the Court of Appeal recorded that there were then 666 similar cases (all, like these three, already the subject of interim relief orders) awaiting determination in the Administrative Court, a high proportion of its caseload; although apparently only some 100 of those cases still remain in the list (the other applicants' asylum claims having by now been finally disposed of one way or the other), were these appeals to succeed and the section 55 ban (substantially in abeyance since the Court of Appeal's judgment) to be re-imposed, the number of challenges would again mount up. Ideally, therefore, your Lordships should provide for the benefit of all concerned as much help as possible.

    82.  My noble and learned friend Lord Hope of Craighead has set out all the basic material necessary for the determination of these appeals and I gratefully adopt rather than repeat it.

    83.  Section 95 of the Immigration and Asylum Act 1999 provides for the accommodation and support of destitute asylum seekers generally, destitution for this purpose being defined as not having adequate accommodation or the means of obtaining it and/or the inability to meet other essential living needs. Section 55 of the Nationality, Immigration and Asylum Act 2002, however, introduced a disqualification from assistance for a large number of asylum seekers, namely those who failed to make their asylum claim "as soon as reasonably practicable after [their] arrival in the United Kingdom" (section 55 (1)), probably the majority of all asylum-seekers, save "to the extent necessary for the purpose of avoiding a breach of [their Convention rights]" (section 55 (5)), in which event assistance must be provided.

    84.  Parliament's purpose in enacting section 55 is thus plain: the Secretary of State is not to assist late claimants (as I shall call them) unless that is necessary to avoid a breach of their Convention rights—in effect their right under article 3 not to be "subjected . . . to inhuman or degrading treatment . . .", in which event assistance is mandatory. The Secretary of State has no discretion in the matter: rather he must determine the facts and then make a judgment. In particular he must make a judgment as to just what level of deprivation engages article 3.

    85.  There is no reason to doubt that Parliament was just as intent upon ensuring that the United Kingdom fully complies with its Convention obligations as on depriving late claimants of support. The provision of benefit is either mandatory or prohibited. It follows from all this that there can be no question here of the court by its decision thwarting the will of Parliament. Rather your Lordships' task on these appeals is to guide the Secretary of State in the discharge of his own difficult duty of deciding when in any particular case the statutory prohibition on support becomes instead a mandatory duty to support.

    86.  There was much argument before your Lordships, advanced both orally by the parties and in their and the various interveners' extensive printed cases, as to the correct approach to take to article 3.

    87.  The rival arguments are essentially these. The respondents and the interveners point out that article 3 is often analysed as including both negative and positive obligations, the state being not merely prohibited from itself mistreating individuals but also on occasion required to take positive steps to prevent individuals suffering at the hands of others (or, indeed, from natural causes). The state's negative obligation is said to be absolute, its positive obligation not so. State activity causing suffering of sufficient severity is categorically forbidden; state passivity may be justified. Given the finding of the Court of Appeal in R (Q) v Secretary of State for the Home Department [2004] QB 36, 69, para 57 that the legislative regime imposed on late claimants "amounts to positive action directed against asylum seekers and not to mere inaction", it is contended that their suffering is of sufficient severity to involve without more a breach of article 3: the policy considerations underlying section 55 (1) are said to be immaterial.

    88.  Mr Giffin QC for the Secretary of State submits that this is too mechanistic an approach. He supports instead the spectrum analysis suggested by Laws LJ in the Court of Appeal (paras 57-77) (later carried further in R (Gezer) v Secretary of State for the Home Department [2004] EWCA Civ 1730 (paras 24-29)), an approach which requires that in all but extreme cases a wide range of factors must be considered to decide where on the spectrum a particular case lies and whether, therefore, article 3 liability is engaged.

    89.  For my part I find much of Laws LJ's analysis useful, not because I think it helpful to try to place each article 3 complaint on a spectrum (an exercise which invites needless comparisons with other cases) but rather because it highlights the many different considerations in play and the need in all but the clearest cases "to look at the problem in the round", as I put it in N v Secretary of State for the Home Department (Terrence Higgins Trust intervening) [2005] 2 AC 296, 329, para 88.

    90.  Of course, any case involving torture will without more violate article 3—certainly torture as defined by article 1(1) of the United Nations Convention Against Torture: "severe pain or suffering, whether physical or mental … inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity [excluding] pain or suffering arising only from, inherent in or incidental to lawful sanctions." There can be no room there for any policy justification: prohibition against such action is absolute and unqualified. But insofar as the respondents and/or interveners contend for the need in every article 3 case first to categorise the state's obligation as either negative or positive, only in the latter cases having regard to proportionality or indeed anything other than whether the victims' suffering is sufficiently severe to meet the article 3 threshold, I cannot agree.

    91.  Take the case of N itself where the question whether the UK could lawfully deport the AIDS-afflicted complainant realistically involved deciding whether the state was obliged to continue her expensive treatment here. Or, indeed, take the present case which could similarly be analysed as a complaint of failure to take positive action by way of support. True it is that the legislative regime here in force not only denies support but also prohibits asylum seekers from working, an important factor in the Court of Appeal's decision in Q to regard the case as one of "positive action … not … mere inaction." But assume the ban on working were to be lifted and a complaint then made by someone obviously unemployable. Surely the approach would not be fundamentally different.

    92.  I repeat, it seems to me generally unhelpful to attempt to analyse obligations arising under article 3 as negative or positive, and the state's conduct as active or passive. Time and again these are shown to be false dichotomies. The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim. (This analysis leaves aside those cases where special duties are found to arise, for example the duty to hold an effective official investigation into allegations of torture by state agents: Aydin v Turkey (1998) 25 EHRR 251 and Assenov v Bulgaria (1998) 28 EHRR 652; the duty to enact effective criminal laws to protect the vulnerable from article 3 ill-treatment by private individuals: A v United Kingdom (1998) 27 EHRR 611; and the duty to take effective operational steps to guard against such ill-treatment: Z v United Kingdom (2001) 34 EHRR 97.)

    93.  In particular this seems to me the better approach in cases like the present where the essence of the complaint is that the victims have been subjected to degrading treatment, a concept authoritatively explained in the judgment of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1, 33, para 52:

    "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 …"

    94.  In cases of alleged degrading treatment the subjective intention of those responsible for the treatment (whether by action or inaction) will often be relevant. What was the motivation for the treatment? Was its object to humiliate or debase? For example, as long ago as 1973 the European Commission of Human Rights in East African Asians v United Kingdom, (1973) 3 EHRR 76, 86, para 207, held that "publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity," a decision applied very recently in Moldovan v Romania (Application Nos 41138/98 and 64320/01) (unreported) 12 July 2005, where the ECtHR upheld the claim of a number of Roma, referring, at para 113, to their "living conditions and the racial discrimination to which they had been publicly subjected by the way in which their grievances were dealt with by the various authorities."

    95.  Degrading treatment was also recently found by the ECtHR in Iwanczuk v Poland (2001) 38 EHRR 148, where a remand prisoner, wishing to exercise his right to vote in parliamentary elections, was made to strip naked in front of a group of prison guards so as to cause him feelings of humiliation and inferiority (a finding to be contrasted with the court's rejection of the article 3 complaint in Raninen v Finland (1997) 26 EHRR 563, where the complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity).

    96.  So much for the approach to be taken generally in article 3 cases and in particular those where the principal complaint is of degrading treatment. What, on that approach, should be the outcome of these appeals? Mr Giffin urges upon your Lordships a number of considerations. First, the justification of the various policies underlying section 55(1), essentially to deter unmeritorious asylum claims, to encourage those claiming asylum to do so promptly, and to save public money (all as more fully explained by my noble and learned friends Lord Bingham of Cornhill and Lord Hope of Craighead respectively at paragraphs 2 and 13 above). These policies, I understand Mr Giffin to submit, necessarily contemplate that those disqualified from support under section 55(1) may suffer street homelessness: why else, he asks rhetorically, would anyone offer them accommodation if not to avoid that? An asylum seeker falling within section 55(1), Mr Giffin points out, could by definition (see the Court of Appeal's decision in Q [2004] QB 36 as to what is meant by "as soon as reasonably practicable") reasonably have been expected to claim asylum earlier than he had, regard being had to his state of mind at the time including the effect of anything said to him by an agent facilitating his entry. In further support of the legitimacy of the policy Mr Giffin draws our attention to article 16(2) of Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers:

    "Member States may refuse conditions [defined by article 13.2 as provisions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence] in cases where an asylum seeker has failed to demonstrate that the asylum claim was made as soon as reasonably practicable after arrival in that Member State."

    97.  Secondly, Mr Giffin relies on the statement by the ECtHR in O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001, that the applicant's suffering, notwithstanding that he had remained on the streets for 14 months to the detriment of his health, had not "attained the requisite level of severity to engage article 3". Indeed, he submits, the jurisprudence of the ECtHR goes further than this. In Chapman v United Kingdom (2001) 33 EHRR 399, para 99 echoing earlier case law, the court said:

    "It is important to recall that article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the contracting states many persons who have no home. Whether the state provides funds to enable everyone to have a home is a matter for political not judicial decision."

    98.  Referring back to that paragraph the court in O'Rourke, said: "it considers therefore that the scope of any positive obligation to house the homeless must be limited." How much less scope, Mr Giffin might have suggested, is there for imposing a positive obligation on the state to house, not their own indigenous homeless but late asylum seekers whom there are good policy reasons for not housing.

    99.  Powerful though I recognise these arguments to be, in common with the other Members of the Committee I too would reject them. It seems to me one thing to say, as the ECtHR did in Chapman, that within the contracting states there are unfortunately many homeless people and whether to provide funds for them is a political, not judicial, issue; quite another for a comparatively rich (not to say northerly) country like the UK to single out a particular group to be left utterly destitute on the streets as a matter of policy. In 1999, in a foreword to a government paper, "Coming in from the cold: the Government's strategy on rough sleeping", the Prime Minister wrote:

    "On the eve of the 21st century, it is a scandal that there are still people sleeping rough on our streets. This is not a situation that we can continue to tolerate in a modern and civilised society."

    100.  The paper, of course, was directed rather to the indigenous population, and in particular groups such as careleavers, ex-servicemen and ex-offenders, than to asylum seekers (who were not mentioned). But asylum seekers, it should be remembered, are exercising their vital right to claim refugee status and meantime are entitled to be here. Critically, moreover, unlike UK nationals, they have no entitlement whatever to other state benefits.

    101.  I do not wish to minimise the advantages which the government seek to gain from their policy towards late claimants. But nor should these be overstated. It is in reality unlikely that many claims will be made earlier as a result of it. Nor do the statistics suggest that late claimants make a disproportionate number of the unmeritorious claims. But more important to my mind is that, as Mr Giffin recognises, the policy's necessary consequence is that some asylum seekers will be reduced to street penury. This consequence must therefore be regarded either as intended, in which case it can readily be characterised as involving degrading treatment (see paras 95 and 96 above), or unintended, involving hardship to a degree recognised as disproportionate to the policy's intended aims. Either way, in my opinion, street homelessness would cross the threshold into article 3 degrading treatment.

    102.  I recognise, of course, the difficulty in providing any simple test to be applied in all section 55 cases. Generally speaking I would suggest that imminent street homelessness would of itself trigger the Secretary of State's requirement under section 6 of the Human Rights Act 1998 to provide support (if only by way of night shelters and basic sustenance; I acknowledge that degrading treatment could be avoided by the provision of less even than the modest support made available under section 95). I am content, however, to adopt the approach indicated by Lord Bingham in paragraph 9 of his opinion. On this approach I have some difficulty in accepting the correctness of the Court of Appeal's decision in R (T) v Secretary of State for the Home Department (2003) 7 CCLR 53 (the facts of which are set out in para 100 of Carnwath LJ's judgment below [2004] QB 1440, 1480): true, T was 'living' at Heathrow, but plainly that was unlawful and, even supposing his existence there was not sufficiently degrading, realistically street homelessness was imminent. Whatever the position in T however, I have no doubt that the judgment of the first instance judges and of the majority of the Court of Appeal in the present case was correct.

    

 
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