England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAURICE KAY J

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd September 2003

Lord Justice Kennedy:

1. This is the judgment of the court in an appeal by the Secretary of State from a decision of Maurice Kay J who, on the 31^st July 2003, in the Administrative Court, gave judgment in favour of three applicants for asylum S, D and T, all of whom had been refused support by the Secretary of State in reliance upon section 55 of the Nationality, Immigration and Asylum Act 2002. That section, so far as material for present purposes, provides -

"(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in sub section (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 is reasonably practicable after the person's arrival in the United Kingdom.

(2) The provisions are -

(a) Sections .. 95 .. of the Immigration and Asylum Act 1999 (support for asylum-seeker, etc)

(b)

(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)."

2. The applicants came from different countries, and were in no way connected, but they were all refused support on the ground that -

(1) the Secretary of State was not satisfied that their claims were made as soon as reasonably practicable after their arrival in the United Kingdom - sub section 1(b) - and,

(2) their circumstances were not such as to require the Secretary of State to act pursuant to sub section 5 when read together with Article 3 of the European Convention on Human Rights.

3. Article 3 provides that 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment.'

The Judge's Findings, and the scope of this appeal.

4. In relation to section 55(1) the judge upheld the findings of the Secretary of State so far as two of the applicants were concerned, but the finding of the Secretary of State in relation to the applicant D was held to be flawed and was quashed. There is no appeal against that part of the judge's decision.
5. In relation to section 55(5) the judge found in favour of all three applicants. His finding in relation to D is of no consequence so long as that applicant continues to have the advantage of the judge's finding in relation to section 55(1), and the Secretary of State does not now seek to challenge the judge's finding in relation to S. In consequence we are concerned only with T, and with the judge's findings in his case as to the effect of section 55(5) and Article 3.

Legislative Background.

6. As Mr Eadie for the Secretary of State pointed out, the problem of how to provide minimal but adequate support for asylum-seekers who are waiting for their claims to be determined is one which has attracted the attention of Parliament on many occasions in recent years, and each step taken by Parliament has led to litigation. Initially impecunious asylum-seekers could seek income support and housing benefit, but as their numbers grew Parliament in 1996 sought to reduce the financial burden, and to discourage unmeritorious claims for asylum, by restricting entitlement to those who claimed asylum at the time of entry into the United Kingdom. The legislation also restricted the obligations of housing authorities under Part III of the Housing Act 1985, but the duties of local authorities under section 21(1) of the National Assistance Act 1948 were not curtailed. That subsection, so far as material, provides that local authorities may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -

"(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."

By section 21(5) of the 1948 Act the accommodation can include board and other services. In R v Westminster City Council and others ex parte M,P,A and X [1997] 1 CCLR 85 it was held in this court that destitute asylum-seekers could derive benefit from section 21. Lord Woolf MR said at 94(F) -

"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)."

At that stage the burden on some local authorities of meeting the needs of destitute asylum-seekers was heavy, so in the Immigration and Asylum Act 1999 Parliament relieved local authorities of a substantial part of that burden. By section 116 of the 1999 Act there was added to section 21 of the 1948 Act subsection 1A, which reads -

"A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub section (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 his being destitute."

Section 115 applies to persons subject to immigration control, and they are defined as including non-nationals of EEA states who require leave to enter or remain in the United Kingdom but do not have it. The use of the word 'solely' in the new section 21(1A) left the local authority with a responsibility for those whose need for care and attention was attributable to a combination of factors, and not simply to destitution and its effects (see R v Wandsworth BC ex parte O [2000] 1 WLR 2539). But for all others, the able-bodied destitute, it was provided by section 95 of the 1999 Act that the Secretary of State would assume responsibility. That section, so far as material, reads -

"(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.

(3) For the purposes of this section, the 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."

7. That brings us back to section 55 of the 2002 Act, which, by subsection 1, requires the Secretary of State not to use section 95 of the 1999 Act to provide support for destitute asylum-seekers, or those likely to become destitute, where he is not satisfied that the claim for asylum was made as soon as was reasonably practicable after the person's arrival in the United Kingdom.
8. That, however, is qualified by section 55(5) which empowers the Secretary of State to provide support to the extent necessary to avoid a breach of a person's rights under the European Convention, and the requirement in section 6 of the Human Rights Act 1998 to act compatibly with the Convention converts the power in section 55(5) into an obligation. Thus the issues which arise in this appeal concern the extent to which an asylum-seeker can rely upon Article 3 of the Convention - that being in this case the only relevant article - and whether, in relation to this particular asylum-seeker, the Secretary of State was entitled to decide as he did.

Article 3 and R (Q) v Secretary of State [2003] 2 All ER 905.

9. This case is not concerned with torture or punishment, so Article 3 can be reduced to read 'no one shall be subjected to .. inhuman or degrading treatment ..'. In Q it was held, at paragraph 56, that the regime that is imposed on asylum-seekers who are denied support by reason of section 55(1) constitutes 'treatment' within the meaning of Article 3. That was accepted before us. That gives rise to the question posed in paragraph 58 in Q, as to the point at which such treatment becomes inhuman or degrading. As was pointed out in paragraph 59 English statutory definitions, such as that to be found in section 95(3) of the 1999 Act, do not help. As the court said -

"The degree of degradation that must be demonstrated to engage Article 3 falls significantly below this definition of destitution."

The court then referred to the decision of the European Court in O'Rourke v UK 26^th June 2001 unreported. That decision was relied upon by Mr Eadie before us, so it is worth closer examination. The applicant was a sex offender who on his release from prison had secured temporary local authority accommodation from which he had been evicted for pestering female residents. He ignored advice to go to a night shelter whilst a decision on permanent re-housing was taken. He proceeded to turn down a series of apparently reasonably offers of permanent accommodation. Having finally been offered and accepted a council tenancy he sued the local authority for damages. The House of Lords in 1997 decided that the County Court judge had been right to strike out his action on the ground that no private law right of his had been infringed. His solicitors then petitioned the European Court of Human Rights alleging breaches of Articles 3, 8 and 13. In rejecting Mr O'Rourke's case under Article 3 as inadmissible, the court said:

"The court does not consider that the applicant's suffering following his eviction attained the requisite level of severity to engage Article 3. Even if it had done, the court notes that the applicant failed to attend a night shelter pending a decision on permanent housing, contrary to the advice he was given .. following his eviction. He also indicated an unwillingness to accept temporary accommodation and refused two specific offers of accommodation prior to his acceptance of temporary accommodation .. The applicant was therefore largely responsible for his own deterioration following his eviction."

The particular facts of O'Rourke were therefore unusual, and do not support the suggestion that homelessness is not capable of being a relevant factor for the purposes of Article 3. In paragraph 60 of Q this court said -

"It is quite impossible by a simple definition to embrace all human conditions that will engage Article 3. In Pretty v UK [2002] 2 FCR 97 at 131 the Strasbourg Court provided the following guidance:

'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."

10. It seemed to us at times that what we were being asked to do by both sides in this case was precisely that which was said in Q to be impossible, namely to provide a simple way of deciding when Article 3 will be engaged. As to that we agree with the court in Q. There is no simple solution, beyond what was said in Pretty. But, as was made clear in Q, even where there is a real risk that Article 3 will become engaged the Secretary of State is not obliged to act. At paragraph 63 the court said -

"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."

At the end of the judgment in Q, where the court was considering not only Article 3 but also section 55(1) Article 8 and the fairness of the system then in operation, the court said in paragraph 119 that the burden of satisfying the Secretary of State that support is necessary to avoid a breach of Article 3 lies upon the applicant. He has to show that the support is necessary to avoid his being subjected to inhuman or degrading treatment, and the threshold is a high one. Where the condition of an applicant verges on the degree of severity described in Pretty then the Secretary of State must act.

Practicalities.

11. Mr Eadie submits that where the state does have to act positively in order to avoid a breach of Article 3 that inevitably means that funds have to be expended, and because the allocation of resources is normally a matter exclusively for the executive courts must be careful not to set too low the threshold at which the duty to act does arise. We agree. He reminded us that in East African Asians v UK [1973] 3 EHRR 76 the European Commission of Human Rights considered the meaning of degrading treatment in Article 3 and said at paragraph 189 of its opinion -

"As a general definition of the term 'degrading treatment' the applicants submit that the treatment of a person is degrading 'if it lowers him in rank, position, reputation or character, whether in his own eyes or in the eyes of other people.' The Commission finds this broad interpretation of the ordinary meaning useful when defining the term 'degrading treatment' in Article 3 of the Convention. In view of the particular context in which the term is used in Article 3, the Commission considers, however, that the above interpretation must be narrowed.

Article 3 states that no one shall be subjected to 'torture or to inhuman or degrading treatment or punishment'. The term 'degrading treatment' in this context indicates that the general purpose of the provision is to prevent interferences with the dignity of man of a particularly serious nature. It follows that an action, which lowers a person in rank, position, reputation or character, can only be regarded as 'degrading treatment, in the sense of Article 3, where it reaches a certain level of severity."

At paragraph 195 the Commission recalled its statement at an earlier case that-

"treatment of an individual may be said to be 'degrading' in the sense of Article 3 'if it grossly humiliates him before others or drives him to act against his will or conscience.' This definition is similar to the interpretation reached above; in particular, the word 'grossly' indicates that Article 3 is only concerned with 'degrading treatment' which reaches a certain level of severity."

12. So Mr Eadie submits, and we accept, that it is not enough for a claimant to feel that he has suffered a loss of dignity. How he sees himself and how he is seen by others are matters which may be relevant, but they are not determinative. As was said by the European Court in Lorsé v Netherlands [2003] 37 EHRR 3 at paragraph 59-

"Ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim."

That case was concerned with a serving prisoner and the following paragraphs of the judgment reflect that fact. So they are of limited assistance in the present case. It will naturally be relevant, but it is not in any sense requisite that the purpose of the treatment is to debase or humiliate and Mr Eadie is entitled to point out that in relation to asylum-seekers the treatment (i.e. forbidding them to work while their claims are being considered) has no such purpose. What matters more is its effect. Mr Eadie further submits, and we accept, that even if the treatment causes the claimant emotional distress that, of itself, is not enough, but it is clearly a factor when considering the Pretty test.

13. Before Maurice Kay J it was submitted on behalf of the Secretary of State, and was accepted with some reservations by the judge, that a claimant seeking relief in reliance on Article 3 must establish his case beyond reasonable doubt. Before us Mr Eadie was content to put his case on the basis that the burden of proof being on the claimant he must establish his case to the extent that his right to relief is clear. Mr Knafler for the respondent was content with that formulation, and we proceed upon that basis.
14. But what does that all amount to when it comes to dealing with any individual claimant? Mr Eadie submits that it is not enough for him to assert that he has no money, no friends and no accommodation, or the situation would become unworkable. A mass of claimants would be able to make such assertions. Before an asylum-seeker can present a realistic claim under Article 3 Mr Eadie submits that he must show that he has taken all available steps to help himself. His physical condition is likely to be important in considering whether he has reached the requisite degree of distress. Medical evidence in terms of a formal report may not be easy to obtain, and the evidence filed on behalf of the respondent clearly demonstrates that, but if the asylum-seeker has had more than a minor complaint he will be likely to have sought treatment from a general practitioner or a hospital, and evidence of such treatment should be available. Furthermore he should be able to demonstrate by independent evidence what steps he has taken to obtain food and shelter. As to T, it is accepted that his case has to be judged as at 24^th April 2003, immediately before he was granted emergency relief. Up to then the history of his time in the United Kingdom does not indicate that he had reached a condition verging on that described in Pretty and the judge was wrong to decide otherwise. If he was vulnerable for reasons other than destitution, and that can perhaps be inferred, then he may have been eligible for relief under section 21 of the 1948 Act, but that avenue had not been explored. These were the submissions made on behalf of the Secretary of State.
15. Mr Knafler submitted that T was vulnerable, and indeed that any asylum-seeker who is homeless and without means is verging on the condition described in Pretty. Mr Knafler pointed out that it is the duty of the Secretary of State to prevent a breach of Article 3, not to act only after one has taken place, and that asylum-seekers who are looking for assistance will inevitably find it difficult to produce independent evidence to substantiate their assertions of distress. They are by definition strangers in a strange land. Often they do not speak English, and their contacts are few. The charities which try to help them are overwhelmed, and they have only limited access to medical help, even if they know how to seek it, so, Mr Knafler submits, the most that the Secretary of State can expect of anyone claiming assistance is his evidence that he, or his legal advisor if he has one, has contacted one relevant charity and followed up any advice he received and, secondly, has contacted and sought help from any friends or family he may have, but that nevertheless he is or is about to become without shelter and without means of support. Mr Knafler submits that the judge adopted the right approach in the present case, and that his decision in relation to T should stand.
16. As we have already said, we are not prepared to attempt to lay down any simple test which can be applied in every case. The reality is that each case has to be judged in relation to all the circumstances which are relevant to it. They include factors such as those which have been canvassed before us, but we do consider that a comparison of the facts of S and T may be of assistance to those who have to decide where the line is to be drawn if the obligations imposed by the Convention are to be met.

The facts of S.

17. S is a Somali who, although generally in good health, had no friends or family and no resources here. He arrived in the United Kingdom by air on 7^th January 2003, and, although he claimed asylum the next day (the first operative day of section 55), he was held not to have made his claim as soon as was reasonably practicable. Until the National Asylum Support Service (NASS) gave him interim support through the charity Migrant Help Line, he slept rough on the streets. The charity arranged for him to see a doctor, who reported symptoms of psychological disturbance and considerable malnutrition. The report was submitted to the Home Office, who on 12^th June sent a negative reply apparently directed to a different case. Migrant Help Line eventually gave S his bus fare from Dover, where he was being accommodated, to London, where he slept rough again. He had to beg for money in order to eat, but received very little. He begged for shelter, but without success. His physical condition deteriorated, and a further medical report from the hospital where he had gone because of abdominal pains confirmed his loss of weight. He became unable to eat more than a few mouthfuls of food when it was available. Maurice Kay J concluded in relation to S -

"In my judgment it was clear beyond all doubt that S had no access to charitable support and could not fend for himself from mid June. Indeed, he had been forced to beg for food for a considerable time before that and the medical report of 20^th May provided evidence of psychological disturbance and significant weight loss at that time. His condition was verging on the degree of severity described in Pretty at the time when he commenced these proceedings. To refuse or fail to provide him with support at that stage debased him and diminished his human dignity in the manner described in Pretty. His is a state of destitution which, to use the words of Q, 'results in ill health or some other similarly severe adverse consequence'. Although he failed under section 55(1) his application for judicial review by reference to Article 3 must succeed."

18. It seems to us, and is now accepted by the Secretary of State, that this conclusion was inexorable in S's case. This does not mean that other cases have to reach the same or a similar degree of severity in order to engage Article 3. But when one turns, as we now do, to T's case, which we have concluded falls outside the scope of Article 3, it is relevant to have in mind that the boundary - which is not a fixed or a bright line - lies somewhere between the two.

The facts of T.

19. T arrived in this country by air from Malaysia on 4^th March 2003 and failed without any good reason to apply for asylum until 10^th March. He has not even now been interviewed in relation to his asylum claim, but he was interviewed and refused asylum support by letter dated 7^th April. He was at that point in temporary accommodation, but from 18^th April he began to sleep and spend his days at Heathrow Airport. This continued until interim accommodation was provided pending the judicial review application. In dealing with T the judge said -

"In T's case I ignore the period between 4^th March and 10^th March during which time any privation was substantially self-inflicted. He was then accommodated by NASS until 15^th April. Apart from some unsuccessful attempts to plead for shelter in churches, T then 'lived' at Heathrow until the Secretary of State provided him with accommodation on a without prejudice basis on 24^th April. On 9^th May the Secretary of State confirmed that he stood by his original decision to refuse support. T commenced proceedings on 13^th May and obtained interim relief by order of Owen J two days later.

T's Article 3 claim is based on his circumstances when 'living' at Heathrow. He found it difficult to rest or sleep because of the noise and the light and because he would be moved on by the police. Any ablutions were confined to public lavatories and he was unable to wash his hair or his clothes or to bathe or shower. He developed a problem with his left eye and also a cough. He carried his belongings around with him in holdalls and became increasingly worried. When T's solicitors wrote to the Treasury Solicitor on 23^rd April they stated that T had been sleeping rough at Heathrow since 15^th April. They referred to difficulties there and to T's health being affected. They referred to his becoming increasingly demoralised and humiliated. They also referred to his fear of sleeping on the streets lest he might be attacked and have his papers stolen. Notwithstanding his unusual personality and history, I see no reason to doubt his factual account of his life since he came to this country. In his case, too, I find that he has no access to charitable support and is incapable of fending for himself. I am satisfied that his condition verges on the degree of severity described in Pretty. The refusal or withdrawal of support is debasing him and showing a lack of respect for his human dignity with the consequences referred to in Pretty. In my judgment his application in relation to Article 3 must also succeed."

The question whether the effect of the State's treatment of an asylum-seeker is inhuman or degrading is a mixed question of fact and law. The element of law is complex because it depends on the meaning and effect of Article 3. Once the facts are known, the question of whether they bring the applicant actually or imminently within the protection of Article 3 is one which Mr Eadie accepts can be answered by the court - assuming that viable grounds of challenge have been shown - without deference to the initial decision-maker. Equally, he submits and we would accept, this court is as well placed as the judge at first instance to answer the question. Adopting this approach, we accept the submission of Mr Eadie that the judge's conclusion in T's case does not follow from the facts he sets out. It is impossible to find that T's condition on 24^th April had reached or was verging on the inhuman or the degrading. He had shelter, sanitary facilities and some money for food. He was not entirely well physically, but not so unwell as to need immediate treatment. We therefore allow this appeal.

20. But we must also draw attention to the fact that the evidence of T does suggest that he may be mentally ill, and has no insight into his condition. In short, he recounts that he was sentenced to death by Chinese gangsters because he found Australian girls more attractive than Chinese ones; that he has been surreptitiously drugged so as to control his mind and body, and has been sexually assaulted in the bathroom; that he became a recluse because of the orchestrated hostility of the outside world, and that even indoors he was besieged by loud noise from chainsaws and helicopters; that his water supply has been tainted and that his acts and thoughts are constantly watched. T's denial of any mental illness has placed those representing him in a very difficult position: they can advance the material which demonstrates his condition, but they cannot predicate his case under section 55(5) upon it. It consequently finds no part in Maurice Kay J's decision. What does arise, in our view, is whether T's case under section 55(5), although not apt for relief in the Administrative Court proceedings, ought to be looked at again by the authorities in the light of what has emerged before this court about his mental condition, whether under section 55(5) or, as has been briefly considered in argument before us under section 21(1) of the 1948 Act. It is also relevant to ask why, instead of becoming involved in the present convoluted dispute about benefits, nobody seems to have confronted the fact that, at least so far as the evidence before us goes, T does not seem to have a viable asylum claim. The fears which have driven him here seem likely to be delusional and not to relate to any form of persecution within the 1951 Convention. There are fast-track procedures which might have been used to deal with his case.