QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF S
THE QUEEN ON THE APPLICATION OF D
THE QUEEN ON THE APPLICATION OF T
- and -
|THE 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)
Shaheen Rahman (instructed by Treasury Solicitors ) for the Defendants
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Maurice Kay:
"(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 and Asylum Act 1999….., and
(b) Sections 17 and 24 of this Act…."
These provisions, together with sub-section (5) (to which I shall return later) were considered by the Court of Appeal in R (On the Application of Q and Others) v. Secretary of State for the Home Department  EWCA Civ 364. The judgment of the Court of Appeal contains a legislative history from the Social Security Act 1986 up to the 2002 Act. I gratefully adopt it here. The three principal issues in Q related to the meaning of "as soon as reasonably practicable", the procedure adopted by the Secretary of State for determining applications and the extent to which a refusal of asylum support may involve or precipitate a breach of Article 3 of the ECHR. There is no doubt that, following the dismissal of his appeal in Q, the Secretary of State took steps to remedy the shortcomings which had been identified in the judgment in Q. Nevertheless, difficulties remain. The three cases now before the Court have been identified as test cases and have been heard on an expedited basis in an attempt to resolve recurring issues in this difficult area.
The three decisions under challenge
"On the basis of the available evidence that you have provided, including all the information you gave during interview at the Asylum Screening Unit, the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.
You had the opportunity to claim asylum at the airport when you failed to do so. You alleged that you did not know that you could claim asylum at the airport. However, the Secretary of State does not consider this to be an adequate reason for not claiming asylum on arrival at the airport. He does not find it plausible that you would travel half way around the world without first ascertaining pertinent information concerning your intention to seek international protection. The importance of claiming asylum on arrival at the airport of entry in the United Kingdom is well advertised and generally understood. Therefore the Secretary of State considered that you could and should have claimed asylum at the earliest possible opportunity namely at immigration control on arrival in the United Kingdom.
Although the Secretary of State accepts that a genuine asylum applicant may find it necessary to use deception to facilitate departure from their own country, you entered the United Kingdom illegally, you made no attempt to bring yourself to the attention of the authorities and only claimed asylum after you had entered the United Kingdom. The Secretary of State is of the view that this further strengthens his belief that you did not claim asylum as soon as reasonably practicable after your arrival in the United Kingdom.
The Secretary of State noted that you were unsure of the nationality of the document you used to gain entry into the United Kingdom because the agent handed the passport to you just before you approached the immigration control desk. He noted that when asked in question 2.48 of your screening interview the name you travelled under, you said that you had travelled under the name of Mohamed Mahmoud and the passport you used was a blue British passport. The Secretary of State is aware that the British passport is not blue therefore he considers that you have concocted this aspect of your account in order to mislead him. Furthermore the Secretary of State also noted that you were unsure of the name of the airline you used to gain entry into the United Kingdom and your port of arrival. The Secretary of State has therefore concluded that you have calculatingly failed to provide this information so as to prevent him from establishing you true date of arrival in the United Kingdom.
The Secretary of State has noted that after you entered the United Kingdom, the agent took you to a café patronised by Somalis and left you there. You alleged that you believed that this was what he had contracted to do. You alleged that in the café you approached a Somali man and explained to him your problems. You claimed that he offered to put you up and that you stayed with him one month. The Secretary of State considers it highly unlikely that a total stranger would take you in merely because he felt sorry for you. He considers that you have fabricated this aspect of your account to conceal a pre-arrangement arrangement prior to your arrival in the United Kingdom."
From 6 March 2003 S was accommodated in various hotels by Migrant Helpline. On 21 May 2003 Migrant Helpline requested the Secretary of State to reconsider the application for asylum support. The request enclosed a medical report from a general practitioner in Margate. The report is dated 20 May 2003. Its author is highly experienced in the examination of refugees. The report states:
"……of considerable current concern is his dramatic loss in weight since his arrival in England. He does not have any physical symptoms to account for this loss of weight, but has had considerable psychological disturbance relating to the circumstances from which he fled Somalia and the uncertainty of his life in England. He states that on his arrival in England he weighed 66 kg. Today he weighs 52 kg and his height is 1.82 metres. Combining these two figures together he has a body mass index (BMI) of 16. A BMI of 19 or less is considered to be underweight and malnourished. A BMI of 16 is therefore evidence of quite considerable malnutrition. It is highly likely that if his support and accommodation is withdrawn then he will have insufficient funds to be able to gain access to food. His weight is thus likely to decline further and it would then be highly likely that he would develop some physical consequences from such a malnourished state."
The Secretary of State reconsidered the application for asylum support but refused it in a letter dated 12 June. The letter stated:
"You have claimed that your client is suffering from mental and physical stress caused by his imminent eviction. You have submitted a copy of a report from your client's general practitioner in support of this. Your client's general practitioner states that you client has developed an abdominal condition and as a result of which is suffering from abdominal pain, anorexia and weight loss. He also states that should your client be evicted from his hotel, your client will not be able to gain access to further medical investigations or medication. The Secretary of State finds this medical report extremely vague. Specifically it does not specify the medical condition your client is suffering from. The report also gives no details of the medication your client has previously been prescribed or the treatment and medication he is receiving at present….. although this report states that your client's eviction will prevent your client from obtaining medical treatment, the Secretary of State is aware that medical treatment is always available at the Accident and Emergency Department of any hospital. In the light of the above, the Secretary of State does not therefore consider on the information available to him that his decision to refuse support will engage a breach of article 3.
In relation to other support, you client says there are no charities available to help him but provides no information as to what steps he has taken to identify other support.
To conclude therefore, the Secretary of State has considered his original decision….and has also considered the further representations made in your letter of 21 May. He does not accept that your client arrived the United Kingdom when he says he did and, even if he did, he does not accept that he claimed asylum as soon as practicable thereafter. He has also considered whether support should be given to your client in order to avoid a breach his Convention rights and he has concluded that it should not. However, if he is able to provide further information about his alleged medical condition or if his situation otherwise changes the Secretary of State is always prepared to consider the matter afresh."
S's anticipated eviction occurred on 17 June, on which date his solicitors sent a letter before action to NASS requesting reconsideration. It referred to homelessness and total destitution. I shall return to the evidence of this later. S attended Charring Cross hospital on the evening of 23 June. He was seen in Accident and Emergency for a non-specific abdominal pain. A handwritten report from a hospital doctor refers to S's current homelessness and to his not eating well, together with a swelling on the left side of his neck "which he should see his GP about". S's application for judicial review was filed on 19 June. By a letter dated 11 July a Home Office official referred to the previous decision letter of 12 June. By then it had been observed that the references in the letter of 12 June to "abdominal pain and anorexia and weight loss" were not references to terms that had been used in the medical report which was under consideration. That had referred simply to weight loss. The letter of 11 July is in form a reconsideration because it states:
"In the circumstances and for the sake of clarity I have reviewed again (the medical) report and can confirm that the Secretary of State remains of the view that the evidence submitted was not sufficient so as to establish a breach of Article 3."
Although S was refused permission to apply for judicial review following a paper consideration on 19 June, he was granted permission at an oral hearing before Mr. Justice Richards on 27 June and has been the beneficiary of interim relief ever since.
"On the basis of the available evidence that you have provided, including all the information you gave during your interview at the Asylum Screening Unit, the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.
You had the opportunity to claim asylum at the airport but you failed to do so. The Secretary of State is not satisfied by your account of an agent telling you just to follow him. He does not consider this to be an adequate reason for not claiming asylum on arrival at the airport. The Secretary of State noted that when asked if you were aware that you could apply for asylum from an immigration officer at the port you said you did not know. When asked why you did not ask how to apply you said the agent told you to follow him. The Secretary of State has noted by your own admission you came to the United Kingdom specifically to seek asylum and therefore he considers that it would be reasonable to expect you to have ascertained pertinent information concerning your intention to seek international protection before travelling to the United Kingdom. He considers that you could and should have claimed at the earliest possible opportunity, namely immigration control on arrival in the United Kingdom. The importance of claiming asylum at the airport of entry in the United Kingdom is well advertised….
Although the Secretary of State accepts that a genuine asylum applicant may find it necessary to use deception to facilitate departure from his or her own country, you entered the United Kingdom illegally. You made no attempt to bring yourself to the attention of the authorities and only claimed asylum after you had entered the United Kingdom. This further enhances the Secretary of State's opinion that you did not claim asylum as soon as reasonably practicable after your arrival in the United Kingdom.
The Secretary of State is attentive to the fact that you did not know the details contained on the passport you used to gain entry into the United Kingdom. The Secretary of State considers it inconceivable that you would assume an identity and not know the details, particularly, as this could increase the likelihood of you and the agent being detected by the airport authorities. Therefore he concludes that you have calculatingly failed to provide this information in order to prevent him from establishing your true date of arrival in the United Kingdom.
In addition you stated that the immigration officer did ask you questions but you were given instructions by the agent and the agent replied on your behalf. The Secretary of State does not believe that this is true as he is fully aware of the procedure at immigration control and an immigration officer would not accept the scenario where a fellow passenger would answer on someone's behalf."
On 30 May D had gone to the Refugee Council. The Council arranged for him to have accommodation in a hostel where he remained until 16 June. On 16 June the Refugee Council and solicitors made further representations on D's behalf on the basis that he would now be sleeping rough without means of support. On 25 June the Hammersmith and Fulham Community Law Centre corresponded with the Treasury Solicitor and enclosed the earlier documents of 16 June. The application for permission to apply for judicial review was lodged later on 24 June. On 25 June the Treasury Solicitor responded stating an intention to advise the Secretary of State to stand by his decision letter of 5 June. On 25 June Mr. Justice Davis adjourned the application for permission into court for an oral hearing and at the same time made an order providing for interim accommodation and support. On 27 June, Mr. Justice Richards granted permission and continued the interim relief.
"On the basis of the available evidence that you have provided, including all the information you gave during interview at Croydon Asylum Screening Unit, the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.
You had the opportunity to claim asylum at the airport but you failed to do so. You claimed that you told the immigration officer that you were coming to the United Kingdom as a tourist for the duration of two and half weeks. The Secretary of State takes the view that you had ample opportunity to claim asylum at this point. He considers that your failure to do so casts considerable doubt upon the credibility of your account. Furthermore, you stated that you had been planning for two years to come to the United Kingdom and seek asylum. Therefore, the Secretary of State does not find it credible that you thought you would be turned away without having your asylum claim heard, having spent a considerable length of time planning your trip to the United Kingdom.
In addition you also claimed that you attempted to visit the Canadian Embassy on 5 and 6 March 2003 in order to secure a visa to Canada so that you could claim asylum there. The Secretary of State is satisfied that claiming asylum within a practicable time was therefore not your sole essential priority.
You claim that after you had passed through immigration control, you slept at the airport from 4 March until the morning of 10 March. The Secretary of State does not find your account plausible. He is of the opinion that, had this been the case, the police or security officers would have moved you for languishing at the airport in a destitute fashion. With regards to your alleged attempt at going to the Canadian Embassy, he finds your account contradictory as you claim that you were in the airport between the dates 4 to 10 March 2003. Therefore he does not accept your account to be true.
You also stated during interview at the Asylum Screening Unit in Croydon, that you did not see any posters informing you to claim asylum at the airport. However you later claimed that you were intent on claiming asylum in 'the city' due to alleged complexities of your asylum case. The Secretary of State is led to believe, therefore, that you never had any intentions of claiming asylum at the airport.
In the light of all the above, the Secretary of State cannot be satisfied that you have made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.
The Secretary of States notes that you do have access to limited funds and is therefore satisfied that you have a means of support available to you. "
The applications for judicial review
Section 55(1): "as soon as reasonably practicable"
"……the primary object of S 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."
The Court expressed the test of reasonable practicability in these terms (paragraph 37) :
"On the premise that the purpose of coming to this country was to claim asylum and having regard both to the practicable opportunity for 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?"
One of the matters specifically addressed by the Court of Appeal in Q was the possible relevance of agents or facilitators Thus, it stated (at paragraphs 40 and 42):
"It is also clear that some asylum seekers are so much under the influence of the agents who are shepherding them into the country that they cannot be criticised for accepting implicitly what they are told by them. There is no valid comparison between agents of this kind, whose interests at the point of entry may well be in serious conflict with those of the asylum seekers, and professional advisors. To disregard the effect that they may have on their charges would be both unrealistic and unjust…..
…..When deciding whether an asylum seeker claimed asylum as soon as reasonably practicable, it is right to have regard to the effect of anything that the asylum seeker may have been told by his or her facilitator."
The Court also referred to steps that were taken by the Home Office to draw to the attention of passengers arriving at airports that asylum must be claimed as soon as reasonably practicable. The Court stated (paragraph 41):
"Notices to this effect have been posted in a variety of languages. These steps, and possibly others, will make it increasingly difficult for an asylum seeker to claim ignorance of the requirement to claim asylum at the airport. There is a conflict of evidence, and the evidence continued to proliferate during the hearing before us, as to how easily an asylum seeker can pass through immigration without being subject to any questions. We cannot resolve that issue, but if evidence advanced on behalf of the Respondents is correct, there is scope for the immigration service to tighten entry formalities. It seems to us that it is likely to become increasingly difficult for asylum seekers to allege, credibly, that they have been led to believe that asylum cannot or should not be claimed at the airport. At the same time the risks posed by section 55 to those who do not claim at the airport are likely to become more widely appreciated."
And (paragraph 42):
"When appropriate procedures are in place, we consider that it will be very difficult for an asylum seeker who is not very recently arrived to discharge the burden of proving that it was not reasonably practicable for him or her to claim asylum any earlier."
Other parts of the judgment of the Court of Appeal in Q are concerned with "appropriate procedures". It was for the Secretary of State to lay down a fair system and operate it fairly. The summarised conclusion of the court was (paragraph 119 (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 case workers were not properly directed as to the relevant test, …..;(c) the Secretary of State should have had regard to the applicant's 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 of 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 explaining himself if he can; (g)the system which has operated to date does not provide that opportunity."
"As I understand it, all these matters have essentially been addressed by the Secretary of State since Q was decided and before the decision letters were written and, indeed, the interviews held in the present case."
He observed that the interviewing officer and the decision maker had been assimilated and that the forms used and the methods deployed in interview had been adapted. Turning to the question of agents or facilitators. Lord Justice Laws said (at paragraph 18) :
"Here, as it seems to me, there was no evidence emanating from the interviews to suggest that the applicants were in any way discouraged, far less forbidden, from seeking asylum at the airport. I consider that Mr. Justice Newman's conclusions relating to the part played by the agent were well justified and there is nothing in the suggestion that the Secretary of State should have, but failed to, address some distinct question whether the applicants might have been influenced by the conduct of the agent, short of duress."
In a passage dealing with notices, Lord Justices Laws said (at paragraph 23):
"It seems to me that if the Secretary of State is going to proceed on the footing that in the ordinary way (subject, no doubt, to any special facts) an applicant must make his claim at the airport or other point of entry if he is not to fall foul of section 55 (1)(b), the need to do so must be sufficiently well advertised that in the ordinary way the traveller arriving at the airport will see the poster. I think that can properly be done by notices of this kind, as indeed was contemplated by this court itself in Q. Of course it must always be remembered that every case has to examined on its own facts"
Finally, Lord Justice Laws commented (paragraph 26):
"I will add this. This application is, I think, affected by this vice: it seeks to deploy this court's decision in Q as a platform to justify a form of judicial review in cases like this which really amounts to an appeal on fact. There is, with respect, nothing in Q to vouchsafe anything like such an approach; quite the contrary. It seems to me to be clear, as I have said, that the important issues relating to section 55 which were addressed by this court in Q and the guidance there given by this court have in principle been confronted and accepted by the Secretary of State. In those circumstances, absent a true point based on irrationality or no evidence, it is very difficult to see what proper scope there is for a judicial review in a case such as this. I am clear that there is none in this application."
There has been some respectful debate before me as to the status of the decision in D and H. It seems to me that, as a decision on an application for permission to appeal, it is persuasive rather than binding: see Clark v. University of Lincolnshire and Humberside  1 WLR 1988 at para 33 (per Lord Woolf MR). It was undoubtedly appropriate for Miss Rahman to seek to rely on D and H, following Lord Justice Law's grant of permission to refer to it. In view of the fact that it was decided by a three judge constitution following adversarial argument, it should no doubt be viewed as persuasive authority of considerable weight. As Miss Rahman says, it is quite likely that if the court had granted permission they would have proceeded to deal with the matter substantively and have given judgment in precisely the same terms. Mr. Knafler does not dissent from this. His submission is that, as the judgment of Lord Justice Laws itself states, "every case has to be examined on its own facts" and the evidence in the present cases is different. Moreover, "the amplitude of modern judicial review" is what prevents section 55 from falling foul of article 6 of the ECHR (See Q, paragraph 115). Each application then has to be considered on the basis of the evidence and material before the court.
The evidence in the present cases
S's case is that he fled Somalia and travelled to this country with an agent. He had no knowledge of asylum procedures and did not know that he was required to claim asylum at the airport. He completely relied on the agent. The agent did not tell him that he should or could apply for asylum at the airport and, in any event, he would have been afraid to do so in case that led to his immediate return to Somalia. It was only after leaving the airport that the agent told him about claiming asylum. He did not see any posters in the airport. He was just following the agent and not looking around. He had travelled on a blue British passport in the name of Mahmoud Mahmood.
D is a well educated student from Ethiopia. Nevertheless, he had never previously travelled by air, held a passport or been outside Ethiopia. He knew that some fellow students had successfully fled to neighbouring countries but did not know about the practicalities of claiming asylum. When the opportunity arose to flee Ethiopia, he was told by his Uncle whom he trusted that an agent was being employed to take care of the process. He was told not to ask questions but just to follow the agent. Because he trusted his uncle he also trusted the agent. The agent told him to follow, not to ask questions, to keep an expressionless face and not to look at the documents. The documents had been handed to him just before departure. He was told that they contained his name and photograph. Upon arrival at Heathrow, D concentrated on following the agent's instructions. One of these was to involve the agent if he were asked any questions by the Immigration Officer. This he did. He was worried about being apprehended. He saw no posters about asylum. In his interviews he gave a detailed account of his journey including the appearance of the passport, the name of the airline, a description of the aeroplane and the uniforms of the aircrew, the duration of the flight, onboard food and announcements, transit in Rome, arrival at Heathrow and appropriate dates and times.
The evidence in T's case is very different. In his witness statement he says that he had been planning to leave Malaysia for two years to escape persecution from his family and their associates. He obtained his own passport and ticket. When he arrived at Heathrow on 4 March he had a return ticket and told the immigration officer that he was coming to this country as a tourist for two and a half weeks. He did not claim asylum at the airport because he was afraid that he would be returned forthwith to Malaysia. He based this on information obtained via the BBC World Service. Having stayed at Heathrow overnight, he went to the information desk on 5 May asking where the Canadian Embassy was. This is because he was thinking of seeking asylum in Canada where his godparents live. After one unsuccessful attempt to travel to the Canadian Embassy he tried again on 6 March and had some inconclusive conversations with staff before returning to Heathrow. Following various further toings and froings, T finally claimed asylum in Croydon on 10 March, some six days after his initial arrival.
Discussion and conclusions in relation to Section 55(1)
In relation to S, Mr. Knafler's submissions on section 55 (1) fall into two parts. His first submission is that the decision letter of 12 May includes two paragraphs of reasoning which are generic in their nature and reflect similarly expressed paragraphs in the case of (D). As such, they fail to address S's subjective state of mind in the way in which Q decided that fairness requires. His second submission relates to the Secretary of State's reasoning in relation to S's description of the passport and his inability to name the airline upon whose aircraft he had travelled. It will be recalled that the Secretary of State attached specific significance to the reference to a "blue British passport" and, being aware that the British passport is not blue, considered that S had "concocted this aspect of (his) account in order to mislead". That factor together with the inability to name the airline led to the conclusion that "you have calculatingly failed to provide this information so as to prevent (the Secretary of State) from establishing your true date of arrival in the United Kingdom. The Secretary of State also considered that S had fabricated his account of being taken in by a total stranger for a month following his arrival. In S's case I accept that the Secretary of State was not satisfied that S had arrived in the United Kingdom on the day he alleged. This is apparent from the wording of the letter of 12 May and is also stated in terms in the letter of 12 June.
Section 55(5) and Article 3
"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 and Asylum Act 1999 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 and 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."
In the present case, the claimants rely on section 55(5)(a) and the Convention right enshrined in Article 3 which states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
The reliance here is upon "inhuman or degrading treatment". The relationship between section 55 and Article 3 arose in Q where the Court of Appeal concluded (at paragraph 119, summarising paragraphs 44-63):
"(iii) If the Secretary of State is not so satisfied [under section 55 (1)], 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….
(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 European Court of Human Rights said in para 52 of its judgment in Pretty v. UK  2 FCR 97 at 131:
"As regards the types of 'treatment' which fall within the scope of art. 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 art. 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 v. UK, s. 55(5) permits and s. 6 of the 1998 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 art. 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 v. UK."
"Human rights are the rights essential to the life and dignity of the individual in a democratic society. The exact limits of such rights are debateable and, although there is not much trace of economic rights in the 50 – year old Convention, I think it is well arguable that human rights include a right to a minimum standard of living, without which many of the other rights would be a mockery."
He also submits that the approach for which he contends is supported by a passage in the judgment of Mr Justice Munby in R (A and others) v. East Sussex County Council  EWHC 167 (Admin) at paragraphs 86-87:
"True it is that the phrase [human dignity] is not used in the Convention but it is surely immanent in article 8, indeed in almost every one of the Convention's provisions. The recognition and protection of human dignity is one of the core values – in truth the core value – of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention……
Dignity interests are also, of course, at the core of the rights protected by Article 3. Whether a particular set of circumstances constitutes 'inhuman or degrading treatment' is a matter of fact and degree."
"a life so destitute that to my mind no civilised nation can tolerate it."
"……measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge."
"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 by [the local authority] 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 in June 1992. The applicant was therefore largely responsible for his own deterioration following his eviction."
In Q the Court of Appeal referred to O'Rourke as an illustration of the proposition that the degree of destitution that must be demonstrated to engage Article 3 falls significantly below that of "statutory destitution" and as an illustration of the requisite degree of severity. Miss Rahman suggests O'Rourke and Q, taken together, show that in order to succeed in relation to Article 3 an applicant must produce cogent medical evidence of ill-health or some similarly severe adverse consequence, for example being on the verge of resort to crime or prostitution. Thirdly, she seeks to make a temporal point, submitting that the obligation of the Secretary of State is to step in to provide support "at the point at which not to do so would result in treatment contrary to Article 3" and that the timing of applications for judicial review "must not be anticipatory". Indeed, she goes so far as to submit that where interim relief is ordered by the court, it is difficult to show that the Secretary of State is obliged to intervene to prevent a breach of Article 3. Fourthly, she submits that this case is an attempt to relitigate issues that were resolved in Q.
Further observations on Article 3
MR JUSTICE MAURICE KAY: These applications for judicial review succeed for the reasons set out in the judgment handed down. Yes?
MR KNAFLER: May it please your Lordship, as far as concerns consequential relief, the Secretary of State has been kind enough to indicate that the relief sought in my letter to your Lordship of yesterday is acceptable to the Secretary of State.
MR JUSTICE MAURICE KAY: Yes, it sounded along the right lines, if I may say so. So can there be an agreed order, so far as relief is concerned?
MR KNAFLER: Yes, there can. My Lord, if the letter is not sufficient perhaps we can go away and draft something up?
MR JUSTICE MAURICE KAY: I think it would be helpful in view of the fact that there are three cases.
MR KNAFLER: I will do that. My Lord, as far as concerns costs -- there is an ambit of dispute in relation to costs. Could I just say this, my Lord, very briefly, in addition to the written submissions that I have made on costs, it is this: that the costs attributable to the non generic work carried out in relation to 55(1) in respect of T and S, as I have indicated, are likely to be very small; those instructing me estimate a maximum of 5 per cent of the total. It would be disproportionate to require an assessment officer to go through the bundles to verify that; to try to disentangle them and all the wealth of evidence of what might and might not be non generic work related to S and T on those issues.
Apart from that, my Lord, I have made detailed written submissions and I rely on those.
MR JUSTICE MAURICE KAY: Yes, so you want an order for all your costs to be assessed, if not agreed, and a Community Legal Services Assessment anyway?
MR KNAFLER: That is right.
MR JUSTICE MAURICE KAY: Yes, right.
MISS RAHMAN: My Lord, we do oppose that. This is a case in which, in two of the cases at least, there have been substantial arguments on section 55(1). It would not be right for the claimant to get all of the costs of preparing that. We say that there is one way in which proper justice can be done on costs, and that is for the claimant to be awarded their costs, save for the costs attributable to the section 55(1) arguments on the case of S and T. It would then, of course, be a matter on assessment if they can, as they say, distinguish from those costs a great deal which were for the case of D.
MR JUSTICE MAURICE KAY: As Mr Knafler says, what that would necessitate is really a total assessment and then a judgment that would be likely -- and unless you persuade me to the contrary I am minded to agree with his assessment -- would only go to, at the most, about 5 per cent of the costs that were incurred.
MISS RAHMAN: My Lord, I do not suggest a particular percentage. We do say that 100 per cent cannot be right, bearing in mind that they have pursued these arguments. It may be that to save the assessor your Lordship wishes to come to a per cent in broad terms, but it cannot be 100 per cent, bearing in mind we did have significant arguments in all of the cases.
My learned friend says in his argument that: well, it will be conceded on the Human Rights point in the other two cases, so we had to. They did not have to, they did proceed with it. You heard detailed submissions in all the cases.
You pointed out that my learned friend cannot have it both ways. In fact, in the case of S, for instance, there were some powerful arguments made about the individual section 55(1) points. So, my Lord, we do say that there were costs expended which the Secretary of State should not have to bear, and your Lordship should deduct a significant percentage from 100 per cent as a result of that. I do not seek to persuade your Lordship of the particular percentage.
MR JUSTICE MAURICE KAY: The arguments overlap with the arguments that were successfully advanced on behalf of D on section 55(1). So one is talking about the submissions on the facts in S and T, and the evidence that exclusively went to them.
MISS RAHMAN: My Lord, obviously it is not appropriate to go into the depth of the cases, but you will recall that in preparing for the different cases we had to get to grips with three very different cases. Your Lordship said in his judgment that T is very different, and has not dealt in terms with the section 55(1) argument because it really would have been quite hopeless in respect of T. It follows that the appropriate thing to do is to concede the section 55(1) point in T. They have lost on it and there should be a deduction, in my submission, as a result. For them to get 100 per cent of costs on that would not be doing justice to both parties.
MR JUSTICE MAURICE KAY: Thank you. It seems to me that the crucial fact in this dispute about costs is that all three claimants ultimately have succeeded. I accept that only one of them has succeeded under both headings. I emphatically accept Mr Knafler's submission that the proportion of costs that would be exclusively referrable to those parts of the cases of S and T, in respect of which they were unsuccessful, would be very modest indeed. He suggests 5 per cent maximum, I agree with that.
He then submits that in those circumstances, following a two day hearing, it would be disproportionate to put the issue through a potentially disputed assessment procedure when such a little part of the global costs would be in issue. In my judgment, that is correct in the particular circumstances of this case.
Split costs orders are desirable where one can divide a case into significant parts and make the appropriate allocations reflecting respective successes and failures, but when we are talking about a total cost bill being reduced by 5 per cent maximum, as a result of the lack of total success on the part of two out of three claimants, I do think that would be disproportionate. I do not agree with Miss Rahman that it would be unjust for the costs of the claimants to be recovered on 100 per cent basis.
So, yes, Mr Knafler, you may have your costs in full.
MISS RAHMAN: My Lord, I do have an application to make for permission to appeal in all three cases. My Lord, the cases obviously involved an important point of law and of public importance, and the Secretary of State does seek your permission to take that matter to the Court of Appeal.
MR JUSTICE MAURICE KAY: You do not want permission to appeal in relation to D's section 55 --
MISS RAHMAN: My Lord, my instructions were as follows: at this point, clearly, the client has only had an hour to look at that matter.
MR JUSTICE MAURICE KAY: Yes.
MISS RAHMAN: We would not wish to prejudice our position, but it is really for the Article 3 point that I do seek your permission, but we do not wish to completely stop ourselves from reopening that issue.
MR JUSTICE MAURICE KAY: Thank you. Mr Knafler, do you want to say anything?
MR KNAFLER: Yes, I would like to say something, my Lord, briefly. In my submission, your Lordship reached firm and clear conclusions on all the issues in the cases. Your Lordship's conclusions, if I may respectfully say so, were entirely compatible with Strasbourg jurisprudence and well within the parameters of the Q case.
In those circumstances, in my respectful submission, it should be left to the Court of Appeal to determine whether or not this hare has any further to run.
MR JUSTICE MAURICE KAY: Yes, thank you. I shall not give you permission to appeal in relation to D's success on section 55(1). I am minded to give you permission to appeal on the Article 3 point, but on the basis that you are ready for the appeal to be heard at an early date.
It seems to me that that is important in this case. We know the degree of litigation that was spawned by the coming into force of section 55, and it may be that a period of uncertainty following this judgment, during any appeal, would create new problems of that kind.
Anticipating that you might make this application, Miss Rahman, and anticipating that I might be minded to grant it, I have ascertained that the Court of Appeal could hear you on 27th August.
MISS RAHMAN: My Lord, I do not think we are in a position to say that that would not be entirely appropriate.
MR JUSTICE MAURICE KAY: Mr Knafler, you smiled, does that mean that the eagle will have landed the day before, or that you are embarrassed by that timing?
MR KNAFLER: My Lord, I was just thinking, that is another holiday out of the window, but there it is.
MR JUSTICE MAURICE KAY: You will be on holiday?
MR KNAFLER: Well, I am not sure any more.
MR JUSTICE MAURICE KAY: Right. I am sure you share my enthusiasm for getting the case on quickly.
MR KNAFLER: Well, no, my Lord, because your Lordship's judgment is perfectly workable. This case came on in a very speedy form for hearing. Those instructing me worked very hard to get as much evidence in as they possibly could. If the Court of Appeal is going to look at it we would like the opportunity to actually draw breath for once, which we have not done for many weeks, and to think about the evidence and also to think about the law. These are important issues and we may have more to say, so we do not share --
MR JUSTICE MAURICE KAY: You will have more time, collectively, than you had before the hearing before me. You will have a month.
MR KNAFLER: Yes, we were hoping to do something else other than work in August.
MR JUSTICE MAURICE KAY: Yes. Judges in the Administrative Court are already receiving slightly more recent arrival asylum support cases. They have been put back pending this decision and presumably now they will not be put back much longer, but there is a potential backlog the longer things drag on.
It seems to me that, with the good offices of the Court of Appeal -- they are willing to deal with it at that time, we ought not to --
MR KNAFLER: My Lord, could I say this: I do wonder if one day is going to be sufficient. It took two before your Lordship. Q took at least two days in the Court of Appeal and there were no --
MR JUSTICE MAURICE KAY: Q took longer than it was expected to originally. It over-ran, effectively, did it not, in the Court of Appeal, as I understand it? We do not yet know --
MR KNAFLER: I think it took about two and a half days, but there were no facts to speak of. A day is probably ambitious.
MR JUSTICE MAURICE KAY: Yes, but there is no permission in relation to the section 55(1) part of the case. You are really talking about the law on Article 3 and when it clicks in, are you not? It is an important point, that is why I am granting permission. If I thought it was an inconsequential point I would not grant permission.
Anyway, thank you both, and those instructing you both, for your help in the case and the proficient way in which you had it ready for such spectacularly effective argument last time. Knowing that has taken place once I am quite sure it will happen again.
MR KNAFLER: My Lord, thank you for those kind words.