QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF N
|- 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)
Mr. Sean Wilken and Ms. Susan Chan (instructed by The Treasury Solicitor) for the Defendant
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Mr Justice Silber:
The Immigration Authorities
Attitude of Home Office to Libyan asylum seekers in 2000 and 2001
The non-compliance refusal of the asylum claim
Claim for assistance
National Asylum Support Service ("NASS")
Effect of the Grant of Asylum
The effect on the claimant of his treatment by the Home Office
"The risk of him harming himself remains significant. Due to the severity of depression and his loss of self-confidence, he does not see any future and he feels that he has lost more than a year of his life …".
The nature of the claim and the defences
(i) whether the subject matter of the claim falls within Articles 3 and 8 of the Convention ("the Articles 3 and 8 issue") (See paragraphs 80 to 125 below)
(ii) if the subject matter of the complaint falls within Articles 3 or 8 of the Convention, whether a claim can be brought against the Secretary of State in respect of either claim and in particular, whether a breach of a positive duty owed by the Secretary of State to the claimant can be established ("the Secretary of State's positive duty issue") (see paragraphs 126 to 173 below) and
(iii) if so, what remedies should be granted and in particular, whether damages can be awarded against the Secretary of State ("the remedies issue") (see paragraphs 174 to 204 below.
(i) Relevance of principles of English Law to the HRA claim
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right
(6) "An act" includes a failure to act…".
"A person who claims that a public authority has acted … in a way which is made unlawful by section 6(1) may-
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act".
" A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any-
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention,
whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen".
"Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions of the European Court of Human Rights it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence" .
"In some circumstances, it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention .. It will be easier for it to be recognised where the issues involve questions, a social or economic policy much less so where the rights of high constitution importance or of a kind where the courts especially well placed to assess the need of protection" [page 381 B and D].
(a) "The first principle .. is that greater deference is to be paid to an Act of Parliament than to a decision of the Executive or subordinate measure" .
(b) "The second principle is that there is more scope to deference "where the Convention itself requires a balance to be struck much less when the right is stated in terms which are unqualified"" .
(c) "The third principle is that greater deference will be due to the democratic powers where the subject-matter in hand is peculiarly within their constitutional responsibility and less when it lies more particularly within the constitutional responsibility of the courts" .
(d) "The fourth and last principle is very closely allied to the third … and indeed may be regarded as little more than an emanation of it … It is that greater or lesser deference will be due according to whether the subject-matter lies more readily within the actual or potential expertise of the democratic powers or the courts …In the present case, I have no doubt that the social consequences which flow from the entry into the United Kingdom of clandestine illegal immigrants in significant numbers are far-reaching and in some respects complex…. the assessment of these matters (and therefore of the pressing nature of the need for effective controls) is in my judgment obviously far more within the competence of governments than the courts" .
"71. First and foremost is the fact that this case concerns an immigration decision. As we have pointed out, the European Court of Human Rights attaches considerable weight to the right under international law of a state to control immigration into its territory. And the weight that this carries in the present case is the greater because the Secretary of State is not motivated by the wish to prevent Mr. Farrakhan from expressing his views, but by concern for public order within the United Kingdom.
72. The second factor is the fact that the decision in question in the personal decision of the Secretary of State. Nor is it a decision that he has taken lightly. The history that we have set out at the beginning of this judgment demonstrates the very detailed consideration, involving widespread consultation, that the Secretary of State has given to his decision.
73. The third factor is that the Secretary of State is far better placed to reach an informed decision as to the likely consequences of admitting Mr. Farrakhan to this country than is the court.
74. The fourth factor is that the Secretary of State is democratically accountable for this decision. This is underlined by the fact that section 60(9) of the 1999 Act precludes any right of appeal where the Secretary of State has certified that he has personally directed the exclusion of a person on the ground that this is conducive to the public good.
(iii) Allocation of resources
"In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. Insofar as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has a direct consequence the exposure of an individual to proscribed ill-treatment".
"It is often said that the effect of the passages that we have quoted is to give to Article 3 'extra-territorial effect'. This phrase is not wholly apposite. The act, which infringes Article 3, is the act of extradition, which takes place within the jurisdiction in relation to an individual who is within the jurisdiction. But the act of removal does not itself constitute inhuman treatment. It is the foreseeable consequences of the act, which the Court held engage Article 3. It seems to us that this reasoning involved a significant extension of the ambit of the Convention. Had Mr. Soering been extradited, tried and acquitted by the Virginia Court we do not find it easy to see how Article 3 would have been infringed. The principle applied by the Court appears to have been that it is a breach of the Convention to take action in relation to someone within the jurisdiction which carries with it the real risk that it will expose that person to infringement of his Article 3 rights outside the jurisdiction".
I) THE ARTICLES 3 AND 8 ISSUE
Does the claim fall within Article 3?
(i) the prohibition contained in it is an absolute one, permitting of "no qualification or excuse" (R. (Wilkinson) v. MRO Broadmoor Hospital  1 WLR 419 ).
(ii) "ill-treatment must attain a minimal level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental aspects and, in some circumstances, the sex, age and state of health of the victim" (A v. United Kingdom (1998) 27 EHRR 611 )
(iii) in determining whether treatment is "degrading" within the meaning of Article 3, the Court has to have regard to whether its objective is to humiliate and deface the person concerned as that is a factor to be taken into account, but the absence of any such intention "cannot conclusively rule out a violation of Article 3" (Peers v. Greece (2002) 33 EHRR 51 )
(iv) treatment can be described as "inhuman" if it "causes intense physical or mental suffering" (Ireland v. United Kingdom (1978) 2 EHRR 25)
(v) the facts constituting violation must be proved beyond a reasonable doubt, but it may be proved by inferences or unrebutted presumptions of fact" (Ireland v. United Kingdom (1978) 2 EHRR 25 )
(vi) the "uncertainty, doubt and apprehension" experienced by a close relative of a disappeared person must only reach the minimum level of severity to constitute inhuman treatment (Kurt v. Turkey (1998) 27 EHRR 373 [130 to 134])
(vii) deterioration in the mental health of a person is capable of constituting inhuman or degrading treatment if it reaches the appropriate level of severity. In Arts v. Belgium ((2000) 29 EHRR 50), the European Court did not uphold a finding by the Commission of an Article 3 breach because of the acute anxiety caused by the claimant's conditions or detention expressly on the basis that "there is no proof of deterioration of [the claimant's] mental health" 
(viii) the test to be applied before finding a breach of Article 3 is becoming stricter, and significantly the Strasbourg court has observed that:-
"having regard to the fact that the Convention is a "living instrument which must be interpreted in the light of present day conditions", the Court considers that certain acts which were classified in the past as "inhuman and degrading treatment" as opposed to "torture" could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably, requires greater firmness in assessing breaches of the fundamental values of democratic societies" (Selmuni v. France (2000) 29 EHRR 403 ).
(ix) the kinds of ill-treatment which fall within the scope of Article 3 are very serious as "the [Strasbourg] 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" (Pretty v. United Kingdom (2002) 35 EHRR 1  with my emphasis added).
a) the proper approach to Article 3 is to read it so that it is only engaged where there is so serious a case of inhuman treatment that, unlike Article 8 breaches, it is incapable of being justified by the State as being in accordance with law and necessary in a democratic society in the interests of national security, public safety or for the well-being of the country, or for the prevention of disorder or crime, for the protection of health or morals or for the protection of rights and freedoms of others.
b) in order to ascertain if inhuman or degrading treatment reaches that threshold entails considering all the circumstances of the alleged inhuman treatment, such as the nature and context of the treatment, its duration, its physical and mental aspects but for this treatment to reach the Article 3 threshold, it is not necessary for a claimant to show an intention by the State to achieve that end. In considering all the circumstances, it is necessary for a balancing operation to be conducted in relation to all elements of the treatment accorded to the claimant to determine whether the treatment complained of reaches the requisite threshold.
c) the focus of the inquiry concerning whether there has been a breach of Article 3 has to be substantially but not exclusively on the nature of the treatment suffered by the claimant as the use of the words in Article 3 ("torture, inhuman or degrading treatment") shows the significance of the treatment rather than the consequences for the claimant. This wording is in contrast, as I will explain with the wording of Article 8, which requires significant but not exclusive consideration of the effect of the alleged offending conduct on the claimant ("respect for his private and family life, his home and his correspondence").
Effects on the claimant of Home Office's conduct
The argument on the claimant's Article 3 claim
(i) No right to remain
"My whole life is on hold at the moment because of the decision to refuse my asylum application and the fact that I cannot do anything about my appeal".
(iii) Destitution and financial pressure
Does the claim fall within Article 8?
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and necessary in a democratic society in the interests of national security, public safety for the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others".
"includes a person's physical and psychological integrity: the guarantee offered by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in relation with other human beings" (Botta v. Italy (1998) 26 EHRR 241 ).
The arguments on the applicability of Article 8 to this claim
The test of Newman J in Anufrijeva
II) THE POSITIVE OBLIGATION ISSUE
(i) Is the HRA cause of action based on the strict liability approach or has there to be a duty on the part of a defendant?
(ii) In what circumstances can a defendant be liable for a breach of Article 8 of the Convention in the absence of an express positive obligation on his part?
"50. 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 the light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise.
51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within the jurisdiction the rights and freedoms defined in the Convention taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals. A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases".
(a) where the defendant was or ought to have been aware that that the claimant was suffering or at risk of abuse or of degrading or of humiliating treatment of the kind necessary to engage Article 3 or of mental illness of the kind necessary to engage Article 8. This provision sets out the circumstances in which a duty on the part of the State arises;
(b) that the defendant then did not take the steps reasonably open to him to protect the claimant from the abuse, degrading or humiliating treatment of the kind referred necessary to engage Article 3 or mental illness of the kind necessary to engage Article 8. This provision specifies that where a duty arises, such a duty can be expressed as a positive duty by the State of a standard of care to take the steps reasonably open to protect the claimant from these matters set out in Articles 3 and 8 and
(c) that those measures could have had a real prospect of altering or mitigating the harm suffered by the claimant. This states the causation requirement.
(iii) Did the defendant in fact in this case have an obligation imposed upon him in relation to his treatment of the claimant on the basis that the defendant through his officials was or ought to have been aware that that the claimant was suffering or at risk?
Other tests for imposing a duty on the defendant
(iv) Did the defendant in this case take the steps reasonably open to him to protect the claimant from infringement with his convention rights and would those measures have had a real prospect of altering or mitigating the harm suffered by the claimant?
(a) ensuring that the claimant received a SEF before determining his asylum application
(c) Considering the statement of claim to asylum form before sending the refusal letter
(d) Granting claimant exceptional leave to remain or refugee status
(III) THE REMEDIES ISSUE
"(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including –
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining –
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
"If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party".
(i) whether the court has power itself to award damages as they can only be awarded by a court which has power and jurisdiction to award them or to order the payment of compensation in civil proceedings (stage 1);
(ii) whether damages should be awarded, bearing in mind that in determining whether to award damages and the amount of such award, this court must take account of the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention (stage 2);
(iii) whether it is correct in a particular case to award damages, as it is not permissible to make an award of damages unless the English court is satisfied that the award is necessary to award just satisfaction to a claimant taking account of all the circumstances of the case, including (a) any other relief or remedy granted or order made in relation to the Act in question by the English court or by any other court (stage 3) and (b) the consequences of any decision in respect of that act (stage 4);
(iv) whether it is "just and appropriate" to award damages, even after taking all other factors into consideration (stage 5).
(i) Stage 1 - Power of the Administrative Court to award damages
(ii) Stage 2 – Article 41 principles on entitlement to damages and amount of them
"It is rare to find a reasoned decision articulating principles on which a remedy is afforded. One former judge of the ECHR privately states: 'We have principles, we just do not apply them'".
(iii) Stage 3 – Should damages be awarded in the light of another remedy granted to the claimant?
(iv) Stage 4 –is an award of damages necessary after taking into account the consequences of awarding damages?
(v) Stage 5-is it " just and appropriate" to award damages to the claimant?