COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon. Mr Justice Collins
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE SEDLEY
| The Queen on the Application of 'Q' & Others
|- and -
|Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Lord Goldsmith AG, QC, Mr David Pannick QC, Mr Clive Lewis and Miss Samantha Broadfoot (instructed by The Treasury Solicitor for the Appellant)
Mr Rabinder Singh QC and Mr Raza Husain (instructed by Joint Council for the Welfare of Immigrants and Liberty as Intervenors)
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Legislative History 6-12
The Issues raised by Section 55 13-16
'As soon as reasonably practicable' 17-36
The Test 37-43
Article 3 of the Convention 44-51
Positive and Negative Obligations 52-63
Article 8 64
Procedure : The Questions 65-68
The Principle of Fairness 69-73
The System 74-79
Is the System Fair? 80-102
The Individual Cases 103-109
Section 55(10) and Article 6 110-117
Lord Phillips, MR :
This is the judgment of the Court to which all members have contributed.
"After all, the Act of 1993 confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Either that, or the Regulations necessarily contemplate for some a life so destitute that to my mind no civilised nation can tolerate it. So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention on Human Rights to take note of their violation. Nearly 200 years ago Lord Ellenborough C.J in Reg v Inhabitants of Eastbourne (1803) 4 East 103, 107 said:
'As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving; '
True, no obligation arises under Article 24 of the Convention of 1951 until asylum seekers are recognised as refugees. But that is not to say that up to that point their fundamental needs can properly be ignored. I do not accept they can. Rather I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. If and when that status is recognised, refugees become entitled under Article 24 to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to that time their rights are remotely the same; only that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims."
He concluded his judgment at p293:
"Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs."
"The destitute condition to which asylum seekers can be reduced as a result of the 1996 Act coupled with the period of time which, despite the Secretary of State's best efforts, elapses before their applications are disposed of means inevitably that they can fall within a class who local authorities can properly regard as being persons whose needs they have a responsibility to meet by the provision of accommodation under section 21(1)(a). The longer the asylum seekers remain in this condition the more compelling their case becomes to receive assistance under the subsection."
Lord Woolf added at p95:
"Asylum seekers are not entitled merely because they lack money and accommodation to claim they automatically qualify under section 21(1)(a). What they are entitled to claim (and this is the result of the 1996 Act) is that they can as a result of their predicament after they arrive in this country reach a state where they qualify under the subsection because of the effect upon them of the problems under which they are labouring. In addition to the lack of food and accommodation is to be added their inability to speak the language, their ignorance of this country and the fact they have been subject to the stress of coming to this country in circumstances which at least involve their contending to be refugees. Inevitably the combined effect of these factors with the passage of time will produce one or more of the conditions specifically referred to in section 21(1)(a). It is for the authority to decide whether they qualify. In making their decision, they can bear in mind the wide terms of the Direction to which reference has already been made, as contrary to Mr Beloff's submission the direction is not ultra vires and gives a useful introduction to the application of the subsection. In particular the authorities can anticipate the deterioration which would otherwise take place in the asylum seekers condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged."
This passage has particular relevance to one of the issues with which we have to grapple is it compatible with Article 3 of the Convention to provide no assistance to those who are destitute on the basis that Article 3 will not be engaged unless and until that destitution results in ill-health or some other similarly severe adverse consequence?
"A person [subject to immigration control (which includes asylum seekers)] may not be provided with residential accommodation under subsection 1(a) if his need for care and attention has arisen solely
(a) because he is destitute, or
(b) because of the physical effects, or anticipated physical effects, of being destitute"
"95 Persons for whom support may be provided
(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."
"Late claim for asylum: refusal of support
(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 & Asylum Act 1999 (c.33) (support for asylum-seeker &c), 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 under a provision 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),
(b) the provision of support under section 95 of the Immigration & 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 & 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.
(9) For the purposes of this section "claim for asylum" has the same meaning as in section 18.
(10) A decision of the Secretary of State that this section prevents him from providing or arranging for the provision of support to a person is not a decision that the person does not qualify for support for the purpose of section 103 of the Immigration & Asylum Act 1999 (appeals)."
The Issues raised by Section 55
i) Is he satisfied that the asylum seeker claimed asylum 'as soon as reasonably practicable'? If not:
ii) Is it necessary to afford the asylum seeker support in order to avoid a breach of his Convention rights?
The immediate issue raised by this appeal is whether the Secretary of State followed a fair procedure in order to decide these matters. Collins J decided that he did not. If he was correct that was sufficient reason to quash the decisions.
'As soon as reasonably practicable'
"4.1 The burden of proof is on the applicant for support to show that it was not reasonably practicable to have made their asylum claim sooner. Those who apply for asylum immediately on arrival to an Immigration Officer will be able to access asylum support, provided they otherwise qualify. If the person fails, without good reason, to make an asylum claim immediately at the port of arrival then the expectation is that support will be refused.
4.2 There may however be a number of cases where a person has been given temporary admission by an Immigration Officer and then subsequently applies for asylum to the Immigration Officer at a port. In such circumstances NASS must consider whether the individual had good reason for not applying as soon as reasonably practicable.
4.3 Those who claim asylum in country following a significant change in circumstances in their country of origin (such as a military coup) will be supported by NASS provided they make their asylum claim at the earliest possible opportunity following that change of circumstance. Case-workers must decide whether a reason put forward for the timing of an asylum application is indeed a significant change of circumstance."
"exemption from penalties according to Article 31(1) may not be claimed if the refugee has chosen to stay in a country of refuge for a protracted period without presenting himself to the authorities. If he eventually learns that he is about to be discovered and for that reason gives himself up, he cannot rely on the provisions of Article 31(1)."
He went on to quote from the previous page:
"A person crossing the frontier illegally may have reasons for not giving himself up at the nearest frontier control point or to a local authority in the border zone. If he succeeds in finding his way to the capital or to another major city and presents himself to the authorities there, he must be deemed to have complied with the requirement, and the same ought to apply if he was unsuccessful, but could show that such was his intention."
Simon Brown LJ went on to conclude:
"If Mr Adimi's intention was to claim asylum within a short time of his arrival even had he successfully secured entry on his false documents, then I would not think it right to regard him as having breached this condition."
"The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:
- the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible";
- what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time;
- to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk."
The question is how reasonable we are regarding people who come here but do not claim asylum at the port of entry. We need to be reasonable and to take into account the trauma that people experience."
The written statement on section 55 issued by Ms Beverley Hughes on 28 November 2002 included the following passage:
"It will not be acceptable for an asylum seeker wanting NASS support to postpone making an asylum claim unless there is a very good reason for doing so. And even if there is a good reason for not claiming asylum immediately on arrival at the port, the person must claim asylum as soon as possible thereafter."
"I would venture to take the simple test given by the majority in Dedman's case  ICR 53, 61. It is simply to ask this question: Had the man just cause or excuse for not presenting his complaint within the prescribed time? Ignorance of his rights or ignorance of the time limit is not just cause or excuse, unless it appears that he or his advisers could not reasonably be expected to have been aware of them. If he or his advisers could reasonably have been so expected, it was his or their fault, and he must take the consequences. That was the view adopted by the Employment Appeal Tribunal in Scotland in House of Clydesdale Ltd v Foy  IRLR 391 and in England in Times Newspapers Ltd v O'Regan  IRLR 101 decisions with which I agree.
The present case is not one where the man was ignorant of his rights or of the time limit. He was aware of them, but he thought quite naturally that his claim was already lodged and was being processed before the appropriate tribunal. He continued in that state of mind until he was told on December 9, 1976 after the three months had expired by the local insurance tribunal that he had to lodge a complaint with the industrial tribunal. That seems to me to afford just cause or excuse: such that it was open to the industrial tribunal to hold that it was not "reasonably practicable" to present it within the three months."
At p59 Shaw LJ said:
"I turn to the situation where a dismissed employee does know of his right to present his claim but does not realise that there is a time limit and delays his attempt to claim until that time limit is passed. I do not regard this situation as being one which of itself makes it not reasonably practicable to present a claim before the limitation has expired. There may be other factors which effectively impede the presentation of the claim in time. Some have been adverted to, such as illness; but in this context mere ignorance is not among them. Apart from extraneous considerations, such as illness or incapacity, once an ex-employee is aware of his rights it is practicable for him to pursue them from the day that he becomes aware of them."
Finally at pp60-61 Brandon LJ added:
"Looking at the matter first without reference to the authorities, I should have thought that the meaning of the expression concerned, in the context in which it is used, was fairly clear. The performance of an act, in this case the presentation of a complaint, is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance the illness of the complainant or a postal strike; or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, it itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such inquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him."
Article 3 of the Convention
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"I find the question whether a failure to support destitute asylum seekers constitutes a violation of Article 3 a difficult one. I do not think it is necessary for me to answer it and I do not propose to do so. The question in the present case is whether the withdrawal of support from destitute asylum seekers, who by definition lack the means of obtaining adequate accommodation or cannot meet their essential living needs, in consequence of their misconduct, may constitute inhuman punishment or treatment and so violate Article 3. The judgment of the Court of Appeal in the JCWI case indicates that other means of support principally by charities, are scarce. In my judgment, unless other means of support are available when support is withdrawn, there will be a violation of Article 3".
"It is clear that there is no duty on a State to provide a home. It may even be that there is no duty to provide any form of social security. But the situation here is different since asylum seekers are forbidden to work and so cannot provide for themselves. Unless they can find friends or charitable bodies or persons, they will indeed be destitute. They will suffer at least damage to their health. I therefore agree with Stanley Burnton J."
"a State puts into effect a measure which results in treatment which can properly be described as inhuman or degrading by adversely affecting his mental or physical health to a sufficiently serious extent"
"It is not necessary to wait until damage of a sufficient severity occurs provided there is a real risk that it will occur."
Positive and Negative Obligations
"49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe. 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 of the Convention.
50. An examination of the Court's case law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities. It 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. However, in light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise.
51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals. A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example, the above-cited A v United Kingdom (1998) 27 EHRR 611, §22, where the child applicant had been caned by his stepfather, and Z and others v United Kingdom (2001) 34 EHRR 3, where four child applicants were severely abused and neglected by their parents. It also imposes requirements on State authorities to protect the health of persons deprived of liberty." (Pretty v United Kingdom (2002) 35 EHRR 1)
"52. 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 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."
The Principle of Fairness
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"I will write down what you tell me and this form will then be passed to officers in the Asylum Directorate of the Home Office. This form will also be passed to officers in the National Asylum Support Service (NASS) if you are a person to whom Section 55 of the Nationality, Immigration and Asylum Act 2002 applies, so that a decision can be made on whether or not you are eligible to be considered for NASS support. NASS officers may also request to interview you in respect of the information you have supplied on this form."
"It is VITAL that all relevant information you possess in connection with when, how and where you arrived in the UK, and how you travelled here today is given to us today even if you are not directly asked a question about it. Otherwise you may be refused support on the basis that you have given inadequate information to satisfy the Secretary of State that you made your asylum claim as soon as practicable after arrival in the UK. Do you understand? " (Record answer).
"1.25a Explain why you did not immediately apply for asylum to an [IO] at the port of entry?
1.25b What evidence do you have to support your previous answer?
1.25c [If there is a delay between the date the interviewee arrived in the UK and the date of his/her application for asylum]. Explain why there is a delay between the date you arrived in the UK and the date you applied for asylum
1.25d What evidence do you have to support your previous answer?
1.26 Country of embark.
1.26a What evidence do you have to show when you were last in the country you claim to have arrived from?"
"It is vital that you tell us everything you know which is relevant to the questions I have asked you or to which you think you should tell us. It may affect your entitlement to support if you fail to provide full details."
Once filled in the form is passed to NASS where it is considered by an executive officer (an 'EO') or an IO and a decision made.
Is the System Fair?
"19. It is an unfortunate element of the system, although I understand why it is considered necessary, that the person at NASS who decides whether to refuse or allow support under s.55 relies entirely on the answers recorded on the form. He does not see nor does he question the Claimant. This means that it is important that all necessary information is obtained so that a fair decision can be made and all relevant circumstances can be taken into account. It is to be noted that there is no guidance provided as to how human rights issues should be investigated and no questions in the form give much, if any, assistance in that respect.
20. The decision is not appealable. Steps must be taken to ensure that the decision-making process is fair; so much will always be implied. In the circumstances, it is the more important that the Claimant should have a reasonable opportunity to deal with and to explain any matter, which is to be relied on against him. I recognise that Mr Garnham has stated that the Secretary of State will always be prepared to reconsider an adverse decision if further representations are made or evidence produced. That is to be welcomed. But it is not a substitute for proper and fair primary decision-making. I am satisfied that in port arrivals cases further detail must be asked about reliance on advice and, if an account of what happened at the airport is considered incredible, an opportunity should be given for further explanation. In lorry cases, vagueness about the nature of the lorry or the journey should again be investigated, particularly if, as has been the case in these and I gather in many claims, it is to be said that such vagueness means that the Secretary of State is not satisfied that the Claimant arrived when he said he did. I do not suggest any extra questioning need be at all lengthy. What is needed will depend on the circumstances, but the reasonableness of the delay in claiming asylum can only be properly decided on if sufficient information is provided. At the very least, the Claimant must be given the chance to rebut a suggestion of incredibility and to explain himself if he can. All that may be needed is a warning that the account is too vague or is incredible having regard to known practices at ports or it was not reasonable to rely on advice or to obey instructions. In those latter cases, it is not uncommon that threats are made that the Claimant's family will be made to suffer if instructions are not obeyed. Equally, I am well aware from my position as President of the Immigration Appeal Tribunal (the "IAT") that in some countries to claim asylum at a port will result in immediate refusal to enter and removal by the police. This has led some to believe that it is essential to gain entry before claiming asylum.
21. It is accepted that reasons should be given for an adverse decision. Suffice it to say that they [ie the reasons] need not be at all lengthy but they must enable the Claimant to know why his claim has been refused."
"All that may be needed is a warning that the account is too vague or is incredible having regard to known practices at ports or it was not reasonable to rely on advice or to obey instructions."
The fact that the burden rests on the applicant makes such a warning more, not less, necessary.
The Individual Cases
i) absent duress or some other exceptional circumstance, the Secretary of State is entitled to take the approach that the person could claim asylum at the airport and, by failing to do so, he failed to make his claim as soon as reasonably practicable;
ii) in particular, simply relying on the statements of the agent does not generally offer any reasonable explanation as to why it was not reasonably practicable to make the claim;
iii) the Secretary of State did make enquires because he asked the person why he did not claim asylum at the airport so that he had every opportunity to explain why it was not reasonably practicable to do so;
iv) on the basis of Mr Roberts' first statement the story that an applicant was able to by-pass the IO at the airport was not credible;
v) in the case of some applicants, notably M, several different accounts have been advanced which shows that the applicant's story is not credible; and
vi) in the case of section 55(5) the Judge applied the wrong test.
Section 55(10) and Article 6
"In the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time before an independent and impartial tribunal."
"35. An English lawyer can view with equanimity the extension of the scope of art. 6 because the English conception of the rule of law requires the legality of virtually all governmental decisions affecting the individual to be subject to the scrutiny of the ordinary courts . But this breadth of scope is accompanied by an approach to the grounds of review which requires that regard be had to democratic accountability, efficient administration and the sovereignty of Parliament. As will appear, I think that the Strasbourg jurisprudence gives adequate recognition to all three of these factors.
47 .. In any case, the gap between judicial review and a full right of appeal is seldom in practice very wide. Even with a full right of appeal it is not easy for an appellate tribunal which has not itself seen the witnesses to differ from the decision-maker on questions of primary fact and, more especially relevant to this case, on questions of credibility.
48. Mr Sales drew attention to the expanding scope of judicial review which, he said, may in a suitable case allow a court to quash a decision on the grounds of misunderstanding or ignorance of an established and relevant fact . or, at least in cases in which convention rights were engaged, on the ground of lack of proportionality He said that this should be taken into account in deciding whether the jurisdiction of the county court was adequate.
49. I do not think that it is necessary to discuss the implications of these developments. No doubt it is open to a court exercising the review jurisdiction under s.204 to adopt a more intensive scrutiny of the rationality of the reviewing officer's conclusions of fact, but this is not the occasion to enter into the question of when it should do so. When one is dealing with a welfare scheme which, in the particular case, does not engage human rights (does not, for example, require consideration of Article 8) then the intensity of review must depend upon what one considers to be most consistent with the statutory scheme ."
i) The test whether an asylum seeker has claimed asylum 'as soon as reasonably practicable' under section 55(1) may be framed in this way: 'On the premise that the purpose of coming to this country was to claim asylum and having regard both to the practical opportunity of claiming asylum and to the asylum seeker's personal circumstances, could the asylum seeker reasonably have been expected to claim asylum earlier than he or she did?'
ii) The burden of satisfying the Secretary of State that he or she claimed asylum as soon as reasonably practicable after his or her arrival in the United Kingdom, applying the above test, is on the applicant.
iii) If the Secretary of State is not so satisfied, it remains open to the applicant to claim support on the basis that it is necessary for the purpose of avoiding a breach of his or her Convention rights under Article 3 or 8 of the Convention.
iv) The burden of satisfying the Secretary of State that such support is necessary is on the applicant. Under Article 3 the applicant must satisfy the Secretary of State that such support is necessary to avoid his or her being subjected to 'inhuman or degrading treatment'. The threshold is a high one.
v) The regime imposed on asylum seekers who are denied support by reason of section 55(1) constitutes 'treatment' within Article 3 because, although treatment implies something more than passivity on the part of the State, there is here more than passivity. Asylum seekers cannot lawfully be removed but, while they remain, which they must do if they are to press their claims, they cannot lawfully work unless the Secretary of State gives them special permission to do so.
vi) The threshold is a high one but the ECHR said in paragraph 52 of its judgment in Pretty:
"52. 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 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 treatment, 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."
vii) Where the condition of an applicant verges on that described in Pretty, section 55(5) permits and section 6 of the Human Rights Act obliges the Secretary of State to arrange for the provision of support.
viii) We do not agree with Collins J that the fact that there is a 'real risk' that an asylum seeker will be reduced to this state of degradation of itself engages Article 3. It is not unlawful for the Secretary of State to decline to provide support unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself such that his condition verges on the degree of severity described in Pretty.
ix) Article 8 is capable of being engaged but adds little to Article 3.
x) It is common ground that the burden of proof throughout is on the applicant.
xi) In deciding whether the applicant has discharged the burden of proof the Secretary of State must act fairly. He must lay down a fair system and operate it fairly.
xii) The system was not fair or fairly operated. In essence:
(a) the purpose of the interview was not explained to the applicant in clear terms;
(b) the caseworkers were not properly directed as to the relevant test, with regard either to 'reasonably practicable' or Article 3;
(c) the Secretary of State should have had regard to the applicants' state of mind on arrival;
(d) fairness required the interviewer to try to ascertain the precise reason that the applicant did not claim asylum on arrival, which called for interviewing skills and a more flexible approach than simply completing a standard form questionnaire. The questions to ask will vary from case to case and be a matter for the interviewer;
(e) since it is likely that the credibility of the individual applicant will or may be important, it is desirable that the interviewer and the decision maker should be the same person (which we understand is to happen in the future);
(f) where the decision maker concludes that the applicant is not telling the truth the applicant should be given the opportunity of rebutting the suggestion of incredibility and of explaining himself if he can; the system which has operated to date does not provide that opportunity.
xiii) The Judge was right to hold that in each of the individual cases the applicant had been treated unfairly initially, although the case of J has now been resolved and Q awaits a decision.
xiv) The appeals should be dismissed.
xv) Article 6 was not satisfied by the right to apply for judicial review given the system which was operated by the Secretary of State. If the Secretary of State takes the appropriate steps to remedy the deficiencies in procedure the combination of his decision-making process and judicial review of the decision reached by that process will satisfy the requirements of Article 6. It follows that the provisions of section 55(10) are not incompatible with Article 6.