A, L, and T (the respondents) were asylum seekers whose claims for asylum were deemed not to have been made as soon as reasonably practicable following their arrival in the UK and were each refused support under s55(1) Nationality Immigration and Asylum Act 2002(NIAA). Each was successful in their application for judicial review in the Administrative Court, which was later upheld by the Court of Appeal. The Secretary of State (SS) appealed to the House of Lords.
Firstly, their Lordships had to decide in what circumstances did SS become entitled and obliged pursuant to s55(5)(a) of the NAA to provide or arrange for support for an asylum seeker who has not made his application as soon as reasonably practicable after arrival in the UK. Secondly, in what circumstances would the refusal of SS to provide support amount to a breach of the respondent’s Article 3 Convention rights.
S.95 of the Immigration and Asylum Act 1999 (IAA) authorised SS to provide or arrange support to asylum seekers (and their dependants) who appeared to be destitute or likely to become so within a prescribed period. This authority is revoked by s55 (1) NIAA where the claim is not made as soon as reasonably practicable after arrival in the UK. This section is qualified by s55(5)(a) which authorises SS to provide or arrange for the provision of support to a late applicant for asylum to the extent necessary for the purpose of avoiding a breach of that person’s Convention rights. The SS may only exercise this power where it is necessary to do so and in this sense he has no discretion. The test for whether an applicant was destitute was set out in s95 IAA and covered circumstances in which a person did not have adequate accommodation or could not meet essential living needs. SS refused to exercise his s55 (5) (a) power in respect of A, L and T who had been forced to sleep rough on the street and had limited access to food and washing facilities whilst awaiting their asylum applications.
The court felt that the key to a proper understanding of s.55 (5) (a) was its use of the word “avoid” in the phrase “avoiding a breach”. The purpose of s.55 (5) (a) was to enable SS to exercise his powers to provide support under IAA before the ultimate state of inhuman or degrading treatment was reached. Once that stage was reached, SS was at risk of being held to have acted in a way that was incompatible with the asylum seeker’s Convention rights. S.55 (5) (a) enabled SS to step in before that happened so that he could “avoid” being in breach. Where the inhuman or degrading treatment or punishment resulted from acts or omissions for which the State was directly responsible, there was an absolute obligation to refrain from such conduct. The real issue was whether the State was properly to be regarded as responsible for the conduct that was prohibited by Article 3. Ill-treatment had to maintain a minimum level of severity if it was to fall within “inhuman and degrading treatment or punishment”, Pretty v United Kingdom (2002) 35 EHRR 1. Treatment was inhuman or degrading if, to a seriously detrimental extent, it denied the most basic needs of any human being. There was no more exacting test where the treatment or punishment was the result of legitimate government policy. The decision by SS to withdraw support from someone who would otherwise qualify for support under s.95 of the 1999 Act because he was, or was likely to become, destitute, was an intentionally inflicted act for which SS was directly responsible. He was also directly responsible for all the consequences that flowed from it, bearing in mind that asylum seekers in the respondent’s position were prohibited from employment. R (Q) v Secretary of State for the Home Department (2003) EWCA Civ 364. The withdrawal of support would not in itself amount to treatment that was inhuman or degrading. But it would do so once the margin was crossed between destitution and the condition that resulted from inhuman or degrading treatment within the meaning of Article 3. The test for whether the margin was crossed was whether the treatment to which the asylum seeker was being subjected by the entire package of restrictions and deprivations that surrounded him was so severe that it could properly be described as inhuman or degrading treatment within the meaning of Article 3.
There was no doubt that the threshold might be crossed if a late applicant for asylum with no means and no alternative source of support, unable to support himself, was, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. As soon as an asylum seeker made it clear that there was an imminent prospect of a breach of Article 3 because the conditions that he was having to endure were on the verge of reaching the necessary degree of severity, SS had the power under s.55 (5) (a), and the duty under the Human Rights Act 1998 to act to avoid it. In the cases of A, L, and T there was sufficient evidence to justify the conclusion that due their treatment by SS, there was an imminent prospect that they would suffer inhuman or degrading treatment.