T v Secretary of State for the Home Department [2003] EWCA Civ 1285

Human rights – immigration –inhuman and degrading treatment

This was an appeal by the Home Secretary from a High Court finding that his refusal of support to three destitute asylum seekers amounted to inhuman and degrading treatment in breach of article 3 of the European Convention on Human Rights.


D, S, and T had been refused support under s55(1) NIAA 2002 on the basis that they had not applied for asylum as soon as was reasonably practicable after their arrival in the UK. As a result, all three were left to fend for themselves with varying degrees of success. D, S and T claimed that the Home Secretary’s continuing refusal to relieve them of the consequences of their destitution, under s55(5),  amounted a breach of art 3. The High Court judge found that the refusal of support debased and diminished the human dignity of all three claimants and that the consequential deterioration in their physical condition verged on the degree of severity necessary to a finding of inhuman and degrading treatment in breach of art 3. In D’s case the High Court judge further found that the Home Secretary’s decision under s55(1) was flawed in that in deciding whether or not D had claimed asylum as soon as was reasonably practicable, the Home Secretary had failed to have proper regard for D’s subjective state of mind and had based his decision on preconceptions about how asylum seekers act rather than on an individualised assessment of D.


The Home Secretary accepted the judges finding in relation S and art 3 and in relation to D and s55(1), but appealed against the decision that there had been a breach of art 3 in relation to T. It was accepted that the regime imposed on asylum seekers denied support by reason of s55(1) constituted treatment within the meaning of art 3 (see the Q case). The question therefore for the Court of Appeal was at what point did such treatment become inhuman and degrading treatment contrary to art 3?


The Court of Appeal held:


  • As the Court had observed in Q, there was no there was no simple way of deciding when art 3 would be engaged.


  • Even where there was a real risk that art 3 would become engaged, the Home Secretary was not always obliged to act.


  • The burden of satisfying the Home Secretary that support was necessary to avoid a breach of art 3 lay with the asylum seeker. S/he must establish his or her case to the extent that the right to relief was clear. It was not enough for a claimant to feel that he had suffered a loss of dignity, though that might well be relevant.


By way of assistance, the Court compared T’s case to that of S. S had been sleeping rough, had had to beg for money for food but had received very little, and had begged for shelter without any success. It was clear that S had no access to charitable support and could not fend for himself. Medical evidence showed that S was suffering from acute malnutrition and was unable to eat more than a few mouthfuls of food when it was available. There was further evidence of psychological disturbance. S’s condition was undoubtedly verging on the degree of severity described by the ECtHR in the Pretty case.


By contrast, T, although not entirely well physically, had shelter, sanitary facilities and some money for food at the time when his application for support was refused. On the facts of T’s case, it was impossible to find that his condition had reached or was verging on the inhuman or degrading. The Home Secretary’s appeal was therefore allowed.

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