This case concerns a challenge by the claimant (M), a failed asylum seeker from Iraq of Kurdish ethnicity, against a refusal in the first instance by the Secretary of State and the subsequent decision by the ASA to uphold this refusal, for accommodation under s.4 of the Immigration and Asylum Act 1999. Whilst the Secretary of State accepted that M was destitute he refused to accommodate on the basis that M had failed to take all reasonable steps to leave the UK. M argued that the relevant provision (s.3(2)(a) Immigration and Asylum (Provision of Accommodation to failed Asylum Seekers) Regulations 2005) should be construed to exclude only those able to return to their home town using a viable route. He submitted that as he could not do so the refusal of accommodation would breach his rights under Article 3 of the European Convention on Human Rights 1950. Both the Secretary of State and the ASA submitted that the issue of whether M could return to Iraq was an issue that had been decided as part of his asylum application.
The High Court upheld the decisions by the Secretary of State and the ASA, stating that they were entitled to find on the evidence before them that M had failed to take reasonable steps to leave the UK. The Judge determined that the wording of regulation 3(2)(a) made clear that it was only related to matters arising in the UK and which related to the applicants attempts to leave to UK. The Judge also highlighted that even if M’s interpretation of the regulation to stand he had adduced no evidence to satisfy the Court that there was no viable route to his home town. The Judge dismissed M’s claim that his rights under article 3 of the ECHR would be breached by a refusal of accommodation, because the issue of whether he could safely return to Iraq had already been considered as part of his asylum claim. The Judge reiterated that the threshold for an infringement of article 3 was a high one. M had not produced sufficient evidence to conclude that there maybe a probable breach of his art.3 rights if he were to be returned to Iraq. In addition, even if art.3 was engaged, he had provided no material to suggest Iraq had not complied with its obligations to ensure that state agents were not responsible or to take reasonable steps to prevent real and immediate risk of torture or inhuman treatment at the hands of non-state agents.