Gezer v Secretary of State for the Home Department [2003] EWHC 860 (Admin)

Asylum seeker – NASS – dispersal – human rights

 

This was a claim for damages under the Human Rights Act 1998 brought by an asylum seeker whose family had been seriously racially harassed and abused after being dispersed from London to a Glasgow housing estate. Mr Gezer sought a declaration that a decision of the National Asylum Support Agency (NASS) to disperse him and his family to Glasgow infringed their right under article 3 of the European Convention not to be subjected to torture or to inhuman or degrading treatment or punishment.

 

G arrived in the UK in September 2000 and initially lived with his wife and dependent children in London. In August 2001 he applied to NASS for assistance, and in September 2001 he and his family went to live on the Toryglen Estate in Glasgow where a further 7,000 asylum seekers had already settled. They endured a number of racially motivated incidents, including an attack on their “deck access” accommodation, and a threat at knife point to one of G’s sons threatened with a knife. That last incident was treated as a racist attack and the police housed G and his family in emergency accommodation. Shortly after that they returned to London and refused NASS’s offer of alternative accommodation in Glasgow, which meant that NASS withdrew support for G and his family. G contended that the Home Secretary was under a positive duty, under art 3,  to protect G and his family from the treatment which they in fact suffered, by ensuring that they were not sent to Toryglen and housed elsewhere. He argued that although the State itself wasn’t responsible for the racial harassment, it had failed to give him and his family a ‘duty of protection’ by sending them to an estate so unpleasant for asylum seekers that none should have been expected to live there. He further argued that accommodating the family in ‘deck access housing’ further increased their vulnerability as police protection was difficult.

 

Whilst the judge had the uttermost sympathy for G and his family, describing their experience as “the shame of the UK”, he nonetheless dismissed the application. He found that the treatment to which G and his family had been exposed, namely, sustained racial abuse coupled with racially motivated violence, fell within art 3. However, the harm to which G and his family risked exposure was not harm inflicted by the State or its agents. The secretary of state was under an obligation to provide protection against a risk of treatment falling within art 3 of which he knew or ought to have known. The level of that protection did not need to afford a guarantee against the danger but was that which was reasonably available, as a matter of practicality, common sense and humanity, taking into account relevant policy considerations. The measures to be taken were those that afforded a real prospect of avoiding the danger, and the extent of the risk would inform the extent of the protection. G had failed to establish that there had been a particular specific danger of ill treatment within art 3 directed at Toryglen in “deck access” accommodation. The obligation to provide adequate protection against the risk of racial violence and abuse in such accommodation did not require NASS to ensure that asylum seekers were not accommodated in deck access housing on the Toryglen Estate. Therefore there was no infringement of his rights under art 3 as the level of protection provided by the police up to the time of the threat at knife point to his son had been adequate. Absent the identification of a specific danger, the secretary of state was entitled, as a matter of policy, to provide accommodation within an inner city area provided that there was a general system for providing police protection, social support and programmes designed to improve community relations.

 

The judge also dismissed an additional claim for breach of the article 8 human right to respect for home, family and private life. The judge said that it was with regret that he came to the decision that Mr Gezer had failed to establish his case. If he had done, the judge added, it would have been ‘appropriate and necessary’ to award damages in the region of £5,000.

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