COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
The Honourable Mr Justice Collins
The Honourable Mr Justice Gibbs
The Honourable Mr Justice Charles
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE JACOB
| The Secretary of State for the Home Department
|- and -
|(1) Wayoka Limbuela
(2) Binyam Tefera Tesema
(3) Yusif Adam
Mr John Paul Waite (instructed by Treasury Solicitors ) for the Secretary of State
Ms Kate Grange (instructed by Treasury Solicitors ) for the Secretary of State
Mr Christopher Jacobs (instructed by
White Ryland) for the 1st and 2nd Respondents Limbuela and Tesema
Ms Susan Monaghan (instructed by Hanne & Co) for the 3rd Respondent Adam
Mr Stephen Knafler (acting pro bono) for Shelter as Intervener
Hearing dates : 23 & 24 March 2004
Crown Copyright ©
Lord Justice Laws:
THE STATUTORY MATERIALS
"(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, 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."
There is a statutory definition of "asylum-seeker", but I need not set it out. There is no contest but that the three respondents to these appeals are asylum-seekers within the meaning of the statute. The same will almost certainly be true of all or the overwhelming majority of the other claimants whose cases are in the pipeline. I should add that by force of other legislation, subject to certain qualifications and exceptions an asylum-seeker has no access to State support or provision other than through s.95 of the 1999 Act. The provision of accommodation pursuant to s.95 is administered by the National Asylum Support Service ("NASS"), which is effectively an agency of the Secretary of State.
"(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, andb. 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) [section]… 95… of [the 1999 Act]
(5) This section shall not prevent –a) the exercise of a power by the Secretary of State for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998)
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
It is unnecessary to set out any of the measures in the Human Rights Act 1998, save to recall that s.6 renders it unlawful for any public authority (which includes the Secretary of State and the courts) to act incompatibly with a Convention right. Consistently with that provision, s.55(5) of the Act of 2002 lifts the prohibition imposed by s.55(1) if in any given case it is necessary to exercise the power given by s.95(1) of the 1999 Act to avoid a breach of the asylum-seeker's right guaranteed by Article 3. There are other statutory powers mentioned in s.55(2) (and so implicitly the subject of the reference to "a power" in s.55(5)), and there are other Convention rights which might be engaged by s.55(5). S.95(1) and Article 3 are the material provisions for the purpose of these appeals.
"… [W]e consider that the primary object of section 55 can properly be treated as preventing (1) those who are not genuine asylum seekers and (2) those who are not in fact in need of state support from obtaining assistance. The section assumes that genuine asylum seekers can be expected to seek asylum on arriving in this country, not to go off and do something else before seeking support. Furthermore, those who do not claim asylum and support on arrival, but do so later, will ordinarily have demonstrated an ability to subsist without support in the interim. Section 55 is designed to ensure that the circumstances in which support is sought will be circumstances in which support is likely to be needed."
"[Tesema] further reported to Dr Steadman ongoing, frequent, recurrent, intrusive and distressing thoughts of his experiences in his country… Dr Steadman … did not feel that [he] presented with the full syndrome of clinical depression. He did, however, present with some anxiety."
Dr Steadman concluded that Tesema "would benefit from being under the care of a local Community Health Team" and should be registered with a general practitioner.
"Mr Adam feels physically well but psychologically depressed. He has poor concentration and he does not sleep well. He cannot get to sleep easily then wakes with nightmares. He has been prescribed anti-depressants by his GP but did not collect the prescription because he did not know he was exempt from charges and could not afford the tablets."
MR SULLIVAN'S EVIDENCE
"DESTITUTION BY DESIGN"
"7.1… With an estimated total of more than 500 community-based organisations, London's asylum seekers and refugees have developed self-organisation and self-help to an exceptional degree… 7.4… Since 2000 many tens of thousands of asylum seekers – up to 29,000 at a time – have chosen to stay in London on subsistence-only support rather than undergo NASS dispersal…
7.8 The level of need created by Section 55 has however proved too much for households to absorb entirely. They have not been able to save a substantial minority of these destitute newcomers from sleeping rough…"
OBSERVATIONS ON THE BACKGROUND FACTS
THE LEARNING: Q AND T
"56 In our judgment 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. Our reasoning is as follows. Treatment, as the Attorney General has pointed out, implies something more than passivity on the part of the state; but here, it seems to us, there is more than passivity. Asylum seekers who are here without a right or leave to enter cannot lawfully be removed until their claims have been determined because, in accordance with the UK's obligations under article 33 of the Refugee Convention, Parliament has expressly forbidden their removal by what is now section 15 of the 1999 Act. But while they remain here, as they must do if they are to press their claims, asylum seekers cannot work (section 8 of the Asylum and Immigration Act 1996) unless the Secretary of State gives them special permission to do so: see the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225).
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."
"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."
"61 The passages from the judgment of Collins J to which we have referred above suggest that he considered that there will be a breach of article 3 if the Secretary of State refuses permission to an asylum seeker where there is a real risk that, because he will receive no support from any alternative source, he will decline into the kind of state described in Pretty v United Kingdom. The 'real risk' test is one that the Strasbourg court has applied in the case of removal to a country in circumstances where the removing state will no longer be in a position to influence events. We do not believe that it is an appropriate test in the present context.
62 Some who claim asylum may already be in a condition which verges on the degree of severity capable of engaging article 3 described in Pretty v United Kingdom. For those section 55(5) of the 2002 Act will permit and section 6 of the Human Rights Act 1998 will oblige the Secretary of State to provide or arrange for the provision of support. What of the others? Their fate will be uncertain. Those who have been in-country long enough to demonstrate that they have found other means of subsistence may be able to fend for themselves. But it is manifest that some recent arrivals who have no recourse to work, to funds or to help may also be caught by section 55(1). The Attorney General submitted that one cannot discount the possibility that charitable bodies or individuals will come to their assistance. This must be a possibility. But equally there must be a possibility that some will be brought so low that they will be driven to resort to crime or to prostitution in order to survive.
63 Unlike Collins J we do not consider that the fact that there is a real risk that an individual 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. That is what section 55(1) requires him to do. He must, however, be prepared to entertain further applications from those to whom he has refused support who have not been able to find any charitable support or other lawful means of fending for themselves. The Attorney General indicated that is always open to asylum seekers who have been refused support to reapply for this."
I should finally set out this sub-paragraph from the court's conclusions in Q at paragraph 119 (though in truth it replicates what had been said in paragraph 62), in particular because of the echo it finds in the later case of T:
"(vii) Where the condition of a claimant verges on that described in Pretty…, section 55(5)… permits and section 6 of the Human Rights Act 1998 obliges the Secretary of State to arrange for the provision of support."
"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,… 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 claimant. 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."
Then at paragraph 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."
At paragraph 19 the court said:
"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 [counsel for the Secretary of State] 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."
"impossible to find that T's condition on 24th 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."
The concept of "verging on" Article 3 mistreatment is clearly important for the reasoning in both Q and T.
AFTER Q AND T: THE LATER DECISIONS AT FIRST INSTANCE
ZARDASHT – NEWMAN J
"7 But such special circumstances aside, it is, in my judgment, essential for practitioners to realise that simply to state what could be regarded as the obvious, namely that the applicant is homeless, sleeping rough, has no money, and is lonely and vulnerable, will not be likely to be regarded, in the normal run of things, as sufficient..."
"9 In my judgment, the principled working out of this legislation leads to the conclusion that Parliament must be taken to have intended that, even if all the circumstances which I have listed above in paragraph 5 are present, a case will not necessarily have been made out for support…
12… [B]eing destitute for weeks will not necessarily verge on a breach of Article 3. This is because of the obligation on an applicant to establish, so that it is clear, that charitable support has not been provided and that the individual is incapable of fending for himself. By way of example, the claimant in this case is apparently a fit and healthy man of 20. If, despite being homeless… he can obtain food from charities during the day, or other sources, and has some access to washing and sanitary facilities in the course of the day, it is possible that he could live for an extended period under such conditions without severe adverse consequences reducing his condition to the Pretty level…
13 Within the concept of fending for himself falls the assistance or support which he might be able to obtain from friends, whether new or old, and family, as well as simply 'fending for himself'. For the legislation contemplates that from such efforts a palliative measure may ensue which will prevent the seriousness of his condition sinking to the Pretty level. It follows that these factors must be eliminated by evidence, or covered in as much detail as makes the position clear."
LIMBUELA – COLLINS J
"… [W]hen a person without such access [sc. to private or charitable funds or support] is refused asylum support and must wait for a protracted but indefinite period of time for the determination of his asylum application it will often happen that, denied access to employment and other benefits, he will soon be reduced to a state of destitution (not in the section 95 sense). Without accommodation, food or the means to obtain them, he will have little alternative but to beg or resort to crime. Many… will have little choice but to beg and sleep rough. In those circumstances and with uncertainty as to the duration of their predicament, the humiliation and diminution of their human dignity with the consequences referred to in Pretty will often follow within a short period of time."
Then in paragraph 32 Collins J struck a theme which has echoed loud in the to and fro of argument on these appeals. He said:
"I find it distasteful to require that a wait and see policy is adopted, that is to say, it is not possible to be sure that he will suffer as he says he will, so remove his support, let us see whether he does descend into the state which is indicated in that paragraph from Maurice Kay's judgment, let us see whether his health does deteriorate, and then if it does, he can make an application."
"38 Treatment, as I say, which causes someone to sleep rough, in particular in winter, to have to beg or hope for the possibility that he might find someone prepared to provide him with food, to be required to live in the same clothes for days on end, which clothes may or may not be adequate to protect him from the English climate, will, as it seems to me, in most cases be sufficient to cross the relevant threshold. In winter, the imminence of serious injury to health, which is likely to result from sleeping rough, is all too obvious and, in my judgment, it needs no medical or other specific evidence to establish what, after all, is a matter of common sense.
41… [I]t seems to me that, on the facts of this case, this claimant has established that, were he to be deprived of support, he would have no access to overnight accommodation and his chances of obtaining food and other necessary facilities during the day would be remote. He would be, as it seems to me, reduced to begging or to traipsing around London in the hope of finding somewhere which might provide him, perhaps irregularly, with some degree of assistance. That, in my judgment, as I repeat, particularly in winter time, is quite sufficient to reach the Pretty threshold…"
TESEMA – GIBBS J; ADAM – CHARLES J
"59 On the question of whether Article 3 can be infringed where the treatment in question is imminent, I adopt the approach of Collins J. It seems to me that to hold otherwise would be contrary to any reasonable concept of justice. In a situation where the evidence before [the] decision-maker is that without intervention the person concerned will imminently experience inhuman and degrading treatment, it would not be reasonable or sensible to say, 'I require you to put it to the test just in case things do not turn out as I expect, but when they do, you can reapply'.
68 The question whether or not Article 3 is infringed has to be determined on the basis of what a reasonable person, objectively applying the standards of a civilised society, would find to be acceptable or otherwise upon application of the test described in Pretty to the facts of the particular case. Applying that standard, I agree with the reasoning of Collins J in Limbuela. I consider that a decision which compels a person to sleep on the streets, or elsewhere in the open, without basic shelter and without any funds, is normally inhuman and degrading…"
WHERE ARE WE NOW?
THE DISTINCTION BETWEEN CATEGORY (A) AND CATEGORY (B): STATE VIOLENCE AND OTHER CASES
"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."
THE DISTINCTION BETWEEN NEGATIVE AND POSITIVE OBLIGATIONS
"In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. In striking this balance the aims mentioned in the second paragraph of article 8 may be of a certain relevance, although this provision refers in terms only to 'interferences' with the right protected by the first paragraph—in other words it is concerned with the negative obligations flowing therefrom."
Lord Bingham in Pretty continued:
"That was an article 8 case, dealing with a very different subject matter from the present, but the court's observations were of more general import. It stands to reason that while states may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from state to state, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction."
"… 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,… A v United Kingdom (1998) 27 EHRR 611, 629, para 22 where the child applicant had been caned by his stepfather, and Z v United Kingdom (2001) 34 EHRR 97, 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."
The judgment in Q continues:
"54 As the Attorney General pointed out, decisions of the Strasbourg court, typically O'Rourke v United Kingdom (Application No 39022/97)…, make it clear that the state's failure to provide shelter does not by itself amount to inhuman or degrading treatment. But, as he himself accepted, it does not follow that in a case of sufficiently acute individual need… no positive obligation can arise; and such cases as D v United Kingdom (1997) 24 EHRR 423 clearly establish that a breach of the constant negative obligation can occur where an affirmative act of the state is such as to result, indirectly, in inhuman or degrading consequences for the individual.
55 The distance between positive and negative obligation is thus not necessarily great. But the distinction is still real, not least because of its potential consequences for state policy."
THE DISTINCTIONS COMPARED
THE SCOPE OF EXECUTIVE JUDGMENT
THE SCOPE OF EXECUTIVE JUDGMENT LIMITED BY ARTICLE 3
"38 I am bound to declare, with great respect, that as a matter of principle I have much difficulty with the case of D [to which I have already referred: (1997) 24 EHRR 423] … The elaboration of immigration policy, with all that implies for the constituency of persons for whom within its territory a civilised State will undertake many social obligations, is a paradigm of the responsibility of elected government. One readily understands that such a responsibility may be qualified by a supervening legal obligation arising under ECHR where the person in question claims to be protected from torture or other mistreatment in his home country in violation of the Article 3 standards, especially if it would be meted out to him at the hands of the State. But a claim to be protected from the harsh effects of a want of resources, albeit made harsher by its contrast with facilities available in the host country, is to my mind something else altogether. The idea of the "living instrument", which is a well accepted characterisation of ECHR (and some other international texts dealing with rights), no doubt gives the Convention a necessary elastic quality, so that its application is never too distant from the spirit of the time. I have difficulty in seeing that it should stretch so far as to impose on the signatory States forms of obligation wholly different in kind from anything contemplated in the scope of their agreement.
40 But I am no less clear that D should be very strictly confined. I do not say that its confinement is to deathbed cases; that would be a coarse rule and an unwise one: there may be other instances which press with equal force. That said, in light of the considerations I have described I would hold that the application of Article 3 where the complaint in essence is of want of resources in the applicant's home country (in contrast to what has been available to him in the country from which he is to be removed) is only justified where the humanitarian appeal of the case is so powerful that it could not in reason be resisted by the authorities of a civilised State. This does not, I acknowledge, amount to a sharp legal test; there are no sharp legal tests in this area. I intend only to emphasise that an Article 3 case of this kind must be based on facts which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) demand one's sympathy on pressing grounds. On its facts, D was such a case. I consider that any broader view distorts the balance between the demands of the general interest of the community, whose service is conspicuously the duty of elected government, and the requirements of the protection of the individual's fundamental rights. It is a balance inherent in the whole of the Convention: see, for example, Soering paragraph 89."
In that case Dyson LJ concurred with myself in dismissing the appeal, and Carnwath LJ dissented. I mean no disrespect if I do not set out their reasoning.
"The Court recalls that, in order to fall within the scope of Article 3, mistreatment must attain a minimum level of severity… 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… contrary to the advice he was given… He also indicated an unwillingness to accept temporary accommodation… The applicant was therefore largely responsible for his own deterioration following his eviction."
I would accept Mr Giffin's submission that this passage shows that the Strasbourg court would not regard an act or omission by the State whose consequence is that an individual is then and there put on the streets without support as necessarily constituting a violation of Article 3. However unlike asylum seekers affected by s.55(1) Mr O'Rourke was not (as I understand it) barred access to ordinary State welfare payments.
CONCLUSIONS OF PRINCIPLE ON ARTICLE 3
CONSEQUENCES FOR THESE CASES
THE TRUE CONSTRUCTION OF s.55(5) OF THE ACT OF 2002
THE INDIVIDUAL APPEALS
Lord Justice Carnwath:
The Article 3 threshold
"It is quite impossible by a simple definition to embrace all human conditions that will engage Article 3." (para 60)
Although the Judges in the present cases purported faithfully to follow this guidance, all found some difficulty in using it to arrive at a principled decision on the facts of the individual cases.
"… 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…"
"… arising from the situation in which the claimant found himself (including being evicted, having to sleep rough and being confused over who was acting for him)…"
which made it unjust to allow the decision to stand. Thus almost a year after the application it remains undetermined, much of the delay being directly attributable to the fact that the applicant was without any support.
i. What part of their resources it is reasonable to expect charities to devote in supporting those whom they (or their funders) may fairly regard as a state responsibility.
ii. Even assuming the willingness of charities to help, much will depend on the extent of resources available to them, and how they order their priorities, but above all on the competition for those resources from others in a similar position. A small number of destitute asylum-seekers may be able to obtain adequate support from the charities dedicated to that purpose, but there is no evidence of any existing organisations able to cope with a sudden influx of several hundred new clients with no resources of their own and no state support of any kind.
"Many (asylum-seekers) sleep outside our offices, in doorways, in the gardens of a local church and sometimes in telephone boxes (the only place where they are able to keep dry). They do not have enough blankets and clothing to keep them warm. They are often lonely, frightened and feel humiliated and distressed…. Staff have seen the condition of asylum-seekers visibly deteriorating after periods of rough sleeping…. On one occasion I had to tell a group of three homeless asylum-seekers to leave the building on a Friday evening during a torrential downpour with nothing more than a blanket each, a food parcel… and (a) a list of day centres. When I saw them the following Monday their condition had deteriorated considerably, their clothes were filthy, they had started to smell, and they had been unable to find any of the centres listed. Other clients have become depressed and have threatened suicide; one was sectioned after she was found lying across a railway track. Their story is not exceptional – we see people in this situation on a daily basis."
Wait and see?
"… 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?" (para 7)
Taken to extremes such an approach would, as Gibbs J said lead to a legal adviser having to say to a destitute refugee, sleeping on the streets: "You are not ill enough; go away and come back when you are really suffering." (Tesema para 59-61). He understandably described such an approach as "abhorrent".
"… where there is a real risk that, because he will receive no support from any alternative source, he will decline into the kind of state described in Pretty." (para 61-3)
The Court commented:
"… 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. That is what section 55(1) requires him to do. He must, however, be prepared to entertain further applications from those to whom he has refused support who have not been able to find any charitable support or other lawful means of fending for themselves. The Attorney-General indicated that is always open to asylum-seekers who have been refused support to re-apply for this." (para 63, emphasis added)
"It is not inevitable that anyone refused asylum support will be able to rely on Article 3. For one thing, they may have access to private or charitable funds or support such that Article 3 will simply not arise. Some are more resilient or resourceful than others. However, when a person without such access is refused asylum support and must wait for a protracted but indefinite period of time for the determination of his asylum application it will often happen that, denied access to employment and other benefits, he will soon be reduced to a state of destitution (not in the section 95 sense). Without accommodation, food or the means to obtain them, he will have little alternative but to beg or resort to crime. Many, like the claimants in the present case, will have little choice but to beg and sleep rough. In those circumstances and with uncertainty as to the duration of their predicament, the humiliation and diminution of their human dignity with the consequences referred to in Pretty will often follow within a short period of time." (para 33)
In my view, that is not undermined by anything in the decision of the Court of Appeal in that case (confined to T's case – see below).
"The extent to which these circumstances are shown to affect an individual claimant, will be central to the question whether the threshold of severity has been reached. It may have been reached in respect of that individual, but whether it has or not will be a matter of evidence in connection with that individual's particular position. Of course, in individual cases, special circumstances outside those I have listed may exist, such as: bad physical health, disability, age, or mental disease or disorder. Their existence undoubtedly can significantly affect the position of an individual claimant. Where they do, they must be clearly stated in evidence and where possible supported by independent evidence." (para 6, emphasis added)
If by "threshold of severity", Newman J intended to indicate that there must be evidence of the actual onset of severe illness or suffering, I would respectfully disagree. I agree of course that section 55 is "not intended to be a piece of benevolent legislation" (para 10). If we are to give effect to the intention of Parliament we may have to accept (harsh as it may seem) that, in Newman J's words:
"… simply to state… that the applicant is homeless, sleeping rough, has no money, and is lonely and vulnerable, will not be likely to be regarded in the normal run of things as sufficient." (para 6)
However, we must also give effect to Parliament's intention to abide by the Convention, as explained in Q. Where there is clear evidence that charitable or other support are simply not available, one does not need much imagination or evidence to conclude that the effect of such conditions, prolonged over a significant period will produce severe illness or suffering, under one or other of the Pretty tests.
"… 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." (para 16)
It is instructive therefore to contrast the two sets of facts.
"He arrived in the United Kingdom by air on 7th January 2003…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… 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."
"… 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 20th 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. His is a state of destitution which, to use the words of Q, 'results in ill health or some other similarly severe adverse consequence'." (para 29)
The Court of Appeal agreed, describing that conclusion as "inexorable".
In T the relevant facts as found by the Judge (quoted by Kennedy LJ at para 19) were as follows:
"He was… accommodated by NASS until 15th 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 24th April…. 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. … (T's solicitors) 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…."
Maurice Kay J (para 5) recorded that the accommodation made available on 24th April was offered for 7 days and then continued "on a pragmatic basis ' to avert the costs incurred by the application to court for an injunction'". Interim relief was ordered by the Court on 15th May and continued until the hearing on 31st July.
"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." (para 32)
"…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 24th 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…." (para 19)
Although the appeal was allowed, Kennedy LJ noted that T appeared to be mentally ill (although denying it himself), and suggested that his case should be looked at again to see if he would qualify for help on that basis (whether under section 55(5) of the 2002 Act, or section 21 of the National Assistance Act 1948) (para 20). On the facts, therefore, it was an unusual case.
"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 [for the Secretary of State] 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."
A continuing problem
"In an area in which such a large number of claimants are being granted interim relief because they have at least an arguable case, it is incumbent on the Secretary of State to establish an adequate and efficient decision-making procedure which applies the law as set out by the Court of Appeal, which does so within a timescale appropriate to self-evidently urgent issues and which does not give rise to the need for so many applications to this Court." (para 17).
"… it remains the position that a very large number of cases are outstanding, and that there continues to be a steady stream of new judicial review applications."
In these circumstances, he says, "further guidance from the Court of Appeal is urgently required".
The offending "treatment"
"The imposition by the legislature of a regime which prohibits asylum-seekers from working and further prohibits a grant to them, when they are destitute, of support amounts to positive action directed against asylum-seekers and not to mere inaction." (para 57).
Thus the "treatment" in question was the refusal of support combined with the denial of the right to work.
" In (D) the state was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life. The proposed deportation could fairly be regarded as 'treatment'." ( 1AC 800 para 14)"
The same could not be said in Q. Indeed the basis of the Court's decision was that Article 3 suffering was not the "inevitable result" of the state's "treatment", but would only arise if and when charities or other agencies were shown to be unable to provide support.
The responsibility of the State
"….The Court has held that the obligation on the high contracting parties under Article 1 of the Convention to secure to everyone within the jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, require states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment…" (emphasis added).
"The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performances of administrative functions."
"It is lawful for the Secretary of State to refuse 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."
It says that the cases show that there is no simple way of deciding when Article 3 will be engaged, but adds:-
"In this regard it will be relevant to consider, for instance, whether the applicant is 'street homeless' or has access to shelter on a temporary or intermittent basis, access to food and sanitary facilities, and his/her state of health. The onus is on the applicant to provide sufficient evidence to show that s/he is verging on the high threshold described in Pretty; mere assertions are not sufficient for this purpose. Cases where the asylum seeker or a dependant is pregnant should be handled with sensitivity and care." (para 6.10-12).
The role of the Courts
"… the more substantial the interference with human rights, the more the Court will require by way of justification before it is satisfied that the decision is reasonable".
"I therefore conclude that the domestic court's obligation on an irrationality challenge in an Article 3 case is to subject the Secretary of State's decision to rigorous examination, and this it does by considering the underlying factual material for itself to see whether or not it compels a different conclusion to that arrived at by the Secretary of State. Only if it does will the challenge succeed.
All that said, however, this is not an area in which the Court will pay any especial deference to the Secretary of State's conclusion on the facts. In the first place, the human right involved here - the right not to be exposed to a real risk of Article 3 ill-treatment - is both absolute and fundamental: it is not a qualified right requiring a balance to be struck with some competing social need. Secondly, the Court here is hardly less well placed than the Secretary of State himself to evaluate the risk once the relevant material is placed before it. Thirdly, whilst I would reject the applicant's contention that the Secretary of State has knowingly misrepresented the evidence or shut his eyes to the true position, we must, I think, recognise at least the possibility that he has (even if unconsciously) tended to depreciate the evidence of risk and, throughout the protracted decision-making process, may have tended also to rationalise the further material adduced so as to maintain his pre-existing stance rather than reassess the position with an open mind. In circumstances such as these, what has been called the "discretionary area of judgment" - the area of judgment within which the Court should defer to the Secretary of State as the person primarily entrusted with the decision on the applicant's removal (see Lord Hope of Craighead's speech in R v DPP ex parte Kebilene  3 WLR 972 at 993 - 994) - is a decidedly narrow one." (p 729)
The present cases
"In the circumstances, and applying the law as I believe it to be, it seems to me that, on the facts of this case, this claimant has established that, were he to be deprived of support, he would have no access to overnight accommodation and his chances of obtaining food and other necessary facilities during the day would be remote. He would be, as it seems to me, reduced to begging or to traipsing around London in the hope of finding somewhere which might provide him, perhaps irregularly, with some degree of assistance. That, in my judgment, as I repeat, particularly in winter time, is quite sufficient to reach the Pretty threshold and, therefore, on the facts of this case, I take the view that this application must succeed." (para 41).
"(a) The claimant and his legal advisers have made all reasonable efforts to find accommodation for him both before the making of the interim order and recently.
(b) The claimant's medical condition, whether physical, psychological or psychiatric are not such, taken singly or as a whole, as would significantly impede reasonable function and activity, provided the claimant has basic shelter and support.
(c) As far as they go, the medical complaints, as reported by the claimant, are genuine and would exacerbate the effects of any privations which destitution might cause to the claimant.
(d) If the judicial review of the claimant's case fails and the claimant's interim support is terminated, it is clear that he will have to sleep rough. By "it is clear", I mean that the facts establish this as a strong probability. It is essentially impossible to prove a future event beyond reasonable doubt, even an imminent event. It remains possible, despite the failure hitherto to find accommodation, that something might turn up within a few days to allow the claimant to be accommodated.
(e) The claimant will have no roof over his head.
(f) He will have no money and no legitimate means to obtain money.
(g) He will have to endure these conditions as an alien with a limited command of English.
(h) He is in genuine fear of what may come of him and what others may do to him or think about him if he sleeps rough. These fears are justified since some hold rough sleepers in contempt and they are vulnerable to exploitation and assault.
(i) His physical condition will be affected by exposure to the elements during the winter nights, against which his protection will be the clothing he owns and any coverings he may beg or borrow.
(j) He may he able to acquire some kind of support. On a Tuesday he could go to the West Croydon Baptist Church for a free lunch; if he can find Night Watch in Queen's Gardens, and Night Watch is in operation, he may get some food there at night; he could beg; he could walk to other parts of London to try and find more promising sources of help as listed in Mr Sullivan's chart. On the other hand, he will have no money or resources either to travel or to purchase legitimately any provisions.
(k) He will be legally entitled, as the defendant's evidence confirms, to medical care if he can overcome the undoubted practical difficulties of gaining access to it.
(l) Having regard to the limited facilities available, he is, by inference, likely within a short time to become unkempt. Despite all efforts, his hygiene will suffer and he will thus tend to become physically repellent to those who approach. His health is likely to deteriorate."
On these facts he concluded:
"These features, however common or otherwise they are to destitute asylum seekers, in my judgment do cumulatively represent a situation so severe as to amount to a breach of Article 3." (para 69)
i. That it has no application because the conditions of the claimants were not the result of State "treatment";
ii. That its application is confined to the specially vulnerable (for example, pregnant woman or the old);
iii. That it is of general application provided the circumstances of an individual applicant are sufficiently serious.
By that decision (i) and (ii) were excluded. There was no appeal. As a consequence the State must be taken to have accepted responsibility for taking "measures" necessary to ensure that individuals who qualify for help under the test established by Q can obtain it.
Lord Justice Jacob: