Human rights – immigration – fair procedure – inhuman and degrading treatment
Allowing, in part, an appeal by the Home Secretary against a decision that he did not follow a fair procedure when deciding whether for the purposes of s55 Nationality, Immigration and Asylum Act 2002 an asylum seeker had claimed asylum “as soon as reasonably practicable” and if not whether it was necessary to provide support to avoid breach of the applicants rights under the European Convention on Human Rights, the Court of Appeal held that although there were procedural deficiencies in the process by which the Home Secretary decided to refuse claims for support from asylum seekers under s55 which had created unfairness, once these deficiencies in procedure had been remedied, there was no reason why s55 should not operate effectively. The first instance judge had also ruled that the fact that in these circumstances there was a “real risk” that an asylum seeker would be reduced to a state of degradation of itself engaged article 3.
The Court of Appeal found that the burden of satisfying the Home Secretary that asylum had been claimed as soon as reasonably practicable was on the applicant. If the Home Secretary was not so satisfied, it remained open to the applicant to claim support on the basis that it was necessary for the purpose of avoiding a breach of his rights under art 3 of the Convention (prohibition on inhuman or degrading treatment) or art 8 (right to private life). The regime imposed on asylum seekers who were denied support by reason of s55(1) constituted “treatment” within art 3 because the prohibition on asylum seekers from working and receiving support when they were destitute amounted to action directed against them and not to mere inaction. The burden of proving that support was necessary to avoid subjecting the applicant to inhuman or degrading in breach of art 3 was on the asylum seeker and the threshold was a high one. The first instance judge was wrong to hold that the fact that there was a “real risk” that an asylum seeker would be reduced to this state of degradation of itself engaged art 3. It was not unlawful for the Home Secretary to decline to provide support unless and until it was clear that charitable support had not been provided and the individual was incapable of fending for himself such that his condition verged on the requisite degree of severity.
In deciding whether the applicant had discharged the burden of proof the Home Secretary had to act fairly. He had to lay down a fair system and operate it fairly. The present system operated by the Home Secretary was unfair as the purpose of the interview was not explained to the applicant in clear terms and the caseworkers were not properly directed as to the relevant test, with regard either to “reasonably practicable” or art 3. Further, the Home Secretary should have had regard to the applicants’ state of mind on arrival. 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 questionnaire. The questions to ask would vary from case to case and be a matter for the interviewer and since it was likely that the credibility of the individual applicant would or might be important, it was desirable that the interviewer and the decision maker should be the same person. Where the decision maker concluded that the applicant was not telling the truth the applicant should be given the opportunity of rebutting the suggestion of incredibility and of explaining himself if he could.
The first instance judge had been right to hold that in each of the individual cases the applicant had been treated unfairly initially. Article (right to a fair hearing) was not satisfied by the right to apply for judicial review given the system that was operated by the Home Secretary. However, if the Home Secretary took the appropriate steps to remedy the deficiencies in procedure the combination of his decision-making process and judicial review of the decision reached by that process would satisfy the requirements of art 6 and therefore the provisions of s55 were not incompatible with art 6.