QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of MEHMET GEZER
|- and -
|Secretary of State for the Home Department
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Lisa Giovannetti (instructed by The Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Moses:
(1) infringed the claimant's rights enshrined in Article 3
(2) infringed his rights enshrined in Article 8
(3) if either Article 3 or Article 8 was infringed, his entitlement to damages
(4) the amount of any damages to which he would be entitled.
THE STATUTORY FRAMEWORK
"The Secretary of State may provide or arrange for the provision of support for –
(a) asylum seekers or
(b) dependents of asylum seekers,
who appear to the Secretary of State to be destitute or likely to become destitute".
By Section 96(1):
"Support may be provided under Section 95 –
(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependents".
By Section 97:
"(1) When exercising his power under Section 95 to provide accommodation the Secretary of State must have regard to –
(a) the fact that the accommodation is to be temporary pending determination of the asylum seeker's claim
(b) the desirability in general for providing accommodation in areas in which there is a ready supply of accommodation and
(c) such matters (if any) as may be described.
(2) But he may not have regard to –
(a) any preference that the supported person or his dependents (if any) may have as to the locality in which the accommodation is to be provided".
By Article 3 of the European Convention on Human Rights:-
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
By Article 8:-
"(1) Everyone has a right for respect for his private and family life
(2) There shall be no interference by a public authority for the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or 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 the rights and freedoms of others."
THE SECRETARY OF STATE'S POSITIVE OBLIGATION TO SAFEGUARD THE RIGHTS OF THE CLAIMANT AND HIS FAMILY ENSHRINED IN ARTICLE 3 AND ARTICLE 8.
"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" but 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 or 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 the treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."
"49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe. In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.
50. An examination of the Court's case-law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being significant 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 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 jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requiring States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or human 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 rise in a number of cases……"
"Whether the local authority was or ought to have been aware that the applicant was suffering or at risk of abuse and, if so, whether they took the steps reasonable available to them to protect them from that abuse."(Para.92)
The claimant is not required to show that but for the omission of the public authority, ill treatment would not have happened. The Court said:-
"The failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state." (See paragraph 99).
"..it is not surprising that the standard or test for state involvement in breach of article 3 is likely to be the same as the standard or the test for the attribution to the state of persecution under the Refugee Convention: because, there again, the state is only implicated in the acts of third parties that produce a situation that qualifies as persecution under the Refugee Convention, if it has failed to take appropriate steps to protect its citizens against those acts." (see paragraph 13 cited above).
"impose an impossible or disproportionate burden upon the authorities."
"There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of acting contrary to the purposes which the convention requires to have protected. More importantly there must be ability and a readiness to operate that machinery. From precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case."
"applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision." (See paragraph 31).
"It must be established to its satisfaction for the authorities knew or ought to have known that at the time of the existence of a real and an immediate risk of a life an identified individual or individuals from the criminal acts of a third party and that they have failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."
However, in circumstances where the Tribunal required witnesses to give evidence before the Tribunal the Court of Appeal in Lord Saville v Widgery the Soldiers & Ors  EWCA Civ 2048 described the test in Osman as being:-
"Well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself." (28)
"to consider first the nature of the subjective fears that the soldier witnesses are likely to experience …., to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldier's gave their evidence somewhere in Great Britain rather than in Londonderry. The alleviation then has to be balanced against the adverse consequences to the enquiry of the move of venue, applying commonsense and humanity. The result of the balancing exercise will determine the appropriate decision."
The existence of a specific risk on the Toryglen Estate
"The situation at this location (the claimant's home) causes me considerable concern. There is a significant problem of disorder by young people, many of whom are targeting asylum seekers in what can only be described as racially motivated attacks.
Despite increased police patrols the acts of disorder continue. Local officers feel that the deck access house there (sic) are not suitable for asylum seekers due mainly to the lack of concierge support and controlled entry systems. They feel that this family should be allocated alternate housing in Glasgow and I fully support this view."
"The Toryglen area of Glasgow is one of many sites throughout the city selected by Glasgow City Council as accommodations for asylum seekers dispersed by the National Asylum Support Service. The area consists of high-rise block and "deck access" to tenement properties.
There is a stark contrast between the two types of property. The high-rise blocks offer no particular issues and to a large extent asylum seekers have settled well there. The "deck access" houses on the other hand caused difficulties from the outset, largely due to the absence of controlled entry system and concierge staff. The difficulties involved disturbances by young people, vandalism, and threats of violence, actual violence and racist abuse.
Police in the area were not comfortable with the deck access houses but had no right to veto. The City Council were in a difficult situation because they had a shortage of four apartment (three bedroom houses) for larger families and NASS were in need of that type of accommodation. The Council therefore had little option but to use them.
The situation regarding the houses deteriorated to such an extent that on Thursday, 1st November 2001, a meeting was held in Toryglen to discuss their future use. Representatives of Glasgow City Council House, Glasgow Asylum Seekers Support Project and Strathclyde Police were present.
As the police representative, I took the view that the continued use of the "deck access" houses as accommodation for asylum seekers was no longer viable due the number of incidents where they were victims. Although this view caused them severe difficulties the City Council accepted this advice and decided to discontinue their use.
All asylum seekers remaining they were offered alternative accommodation elsewhere in the city. Only one family decided to remain and are still there. The high-rise blocks are also still in use."
"The Toryglen Estate was a well known area of racism and racist violence prior to the dispersal system and that, following the introduction of dispersal, the incidents of racial motivated incidents greatly increased. Toryglen has the highest level in Glasgow of racially motivated incidents against asylum seekers. Without question the police, the council and NASS were aware or should have been aware through a variety of means of the serious problems of racial violence in Toryglen and in Glasgow generally. The level of racial violence in Glasgow reached an extreme peak by September 2001. "
"co-operate in giving the Secretary of State such assistance in the exercise of that power (the power under Section 95 to provided accommodation) as is reasonable in the circumstances."
A local authority must supply to the Secretary of State information about housing accommodation requested by the Secretary of State (see Section 100(4)).
"Not as bad as the media would portray"
He records that the vast majority of between 7,500 and 8000 asylum seekers resident in Glasgow settled well and seemed happy. There was no reason why the claimant and his family could not have been accommodated elsewhere in the city. This is consistent with his recommendation to the Glasgow asylum support project on 1st November 2001. In short, high-rise blocks within Toryglen caused no particular problem and the policy of dispersal, support, and education seems to have worked well after dispersal to deck access housing on the Toryglen Estate was discontinued.
MR JUSTICE MOSES: For the reasons in the judgment that I have handed down, this application fails. Yes?
MS WEBBER: My Lord, I appear on behalf of Ms Harrison in her absence. My Lord there are two matters arising. One is an application for permission to appeal. My Lord, the basis on which I put the application is this, that this case does raise an important question and one of general importance.
MR JUSTICE MOSES: What is the novel point?
MS WEBBER: My Lord, it is specifically in relation to a dispersal of asylum --
MR JUSTICE MOSES: But the principles in relation to the level of protection and Article 3 are very well settled now. It is merely an application of those on the facts.
MS WEBBER: My Lord, that is right, but I would make the application for permission on the basis that it is not clear from your Lordship's judgment that the point has been taken about the risk to this particular claimant in the light of his known psychiatric condition, and that what was the issue was not simply the specific risk to asylum seekers generally, but the specific risk to this claimant, Mr Gezer, in the light of the increased impact of any racial violence on him and the extent to which, therefore, the threshold is lowered by those sorts of considerations. Your Lordship, of course, did make a finding that the authority appears to have failed to make reasonable inquiries -- that is the paragraph 49 -- and so although, of course, it is right that it is a matter of evaluation, I do seek permission to appeal on the basis that the question arising is whether the threshold has been set too high in the light of your Lordship's findings -- (1) that the treatment to which the family was subjected and indeed exposed, constituted a breach --
MR JUSTICE MOSES: The risk I was talking about is the risk of whether there is going to be such abuse and violence, whoever it occurs to, on the deck access estate. It was not such I said as to justify turning it into a no go area while the police themselves did not so advise.
MS WEBBER: My Lord, there are a number of issues --
MR JUSTICE MOSES: Do not worry about all the issues. That is one of your bases about why you want permission. Any other basis?
MS WEBBER: The other matter is whether the approach to protection from harm coming from third parties gives rise to the same degree of obligation in a domestic case as in an expulsion case.
MR JUSTICE MOSES: That is what the Court of Appeal has already decided -- Buxton LJ in Krepel.
MS WEBBER: The third matter in relation to this is to what extent policy is a relevant factor -- that the policy of not wanting no go areas specifically in determining (inaudible) necessary to avoid a real risk.
MR JUSTICE MOSES: That has been decided by the Master of the Rolls in Lord Savile's case. It says you have to balance the advantages against the disadvantages. Any other issues about appeals?
MS WEBBER: The only other issue, my Lord, is that I appreciate that since this is obiter it is unlikely on its own to attract your Lordship to the question of assessment of damages.
MR JUSTICE MOSES: Everybody is anxious that that should get to the Court of Appeal.
MS WEBBER: And the sum of the issues that I have identified are, of course, subject to appeal, as your Lordship is aware, in the consolidated cases.
MR JUSTICE MOSES: On damages, yes. Thank you. Do you want to say anything, Miss Stern?
MISS STERN: Unless there is any point on which your Lordship requires any assistance, our point would simply be that your Lordship applies the well established principles to the facts, and that in the end, the judgment is really determinative on your Lordship's assessment of facts.
MR JUSTICE MOSES: I agree, I am not going to give permission because of that.
MISS STERN: I will not add anything further.
MR JUSTICE MOSES: You ask for the application to be dismissed?
MISS STERN: The application for leave to appeal?
MR JUSTICE MOSES: No, you ask for the application for judicial review to be dismissed?
MISS STERN: My Lord, yes.
MR JUSTICE MOSES: The claim for damages -- I will dismiss those. Is he legally aided?
MS WEBBER: Yes. My Lord, there is however a particular question as to the costs thrown away in relation to the hearing of 5 and 6 December.
MR JUSTICE MOSES: If you are Legally aided, what difference does it make?
MS WEBBER: My Lord, I have been asked to raise the matter in order to protect the legal aid fund.
MR JUSTICE MOSES: On what basis? Who should pay those?
MS WEBBER: It is our very clear submission that the only reason that the case had to be adjourned on that date was because the Secretary of State was not ready, although he had had --
MR JUSTICE MOSES: I thought it was because the judge had asked various further questions.
MS WEBBER: Really the point is this: questions had been asked from March 2002 by those instructing me, so that really the basis on which Ms Giovannetti sought an adjournment was that the Secretary of State had not been on notice that the challenge was to the initial decision to disperse, until receipt of the skeleton argument.
MR JUSTICE MOSES: That was gone into in the skeleton before me.
MS WEBBER: That was clearly unsustainable, but it was on that basis, apparently, that the case for the Secretary of State had prepared, and it was for that reason -- because of a clear misapprehension which lay at the door of the defendant -- it was for that reason that the defendant was not ready to deal with those matters and had not produced the relevant evidence at the hearing of 5 December. My Lord, there is correspondence in pages --
MR JUSTICE MOSES: I do not have the papers here. Anything else you want to say?
MS WEBBER: My Lord, I am instructed that there was, in fact, a consent order from June of last year when the Secretary of State agreed to pay the costs.
MR JUSTICE MOSES: Can I see it? Because you will lose me if you do not --
MS WEBBER: Your Lordship will see the last item on the consent order relates to the costs of the adjournment.
MR JUSTICE MOSES: Yes, of 17 June. That is not the wasted day in front of the judge, that is some other day.
MS WEBBER: Apparently it was adjourned on that date as well.
MR JUSTICE MOSES: I do not have to make any order about that, there has been a consent.
MS WEBBER: Very well, my Lord.
MR JUSTICE MOSES: And I am not going to let you have the costs of the hearing in front of Goldring J. Those are the fortunes of war as it seems to me.
MISS STERN: My Lord, I did have an application for costs on the usual basis against a legally assisted party. I simply ask for that order.
MR JUSTICE MOSES: And the proper order is nowadays?
MISS STERN: My Lord, I am afraid I do not have the precise wording.
MR JUSTICE MOSES: Thank you very much.