R (Gezer) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Moses,MR JUSTICE MOSES |
| Judgment Date | 14 April 2003 |
| Neutral Citation | [2003] EWHC 860 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 April 2003 |
| Docket Number | Case No: CO/917/2002 |
[2003] EWHC 860 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Moses
Case No: CO/917/2002
Ms Stephanie Harrison (instructed by Harter & Loveless) for the Claimant
Miss Lisa Giovannetti (instructed by The Treasury Solicitor) for the Defendant
The claimant is a Turkish National of Kurdish origin. He and members of his family seek asylum. In September 2001 the National Asylum Support Agency (“NASS”) decided that the family should be dispersed to Glasgow on the Toryglen Council Estate. Within days the family were subjected to racial abuse and hostility. In October 2001 their home was attacked by three men. One of them tried to stab the youngest son. The family was housed in emergency accommodation by the police and thereafter, in October 2001, returned to London without, at that stage, any support from NASS.
In these proceedings for judicial review the claimant seeks a declaration that the decision of NASS dated 6 September 2001 to disperse the claimant and his family to Glasgow infringed their rights under Articles 3 and 8 of the European Convention on Human Rights. Additionally they claim damages in respect of that decision. They contend that the effect of that decision was aggravated by NASS’ decision that they should return to Glasgow and by their refusal to provide a subsistence support when they refused to return.
This application, accordingly, raises issues as to whether the decision and actions of NASS:-
(1) infringed the claimant's rights enshrined in Article 3
(2) infringed his rights enshrined in Article 8
(3) if either Article 3 or Article 8 was infringed, his entitlement to damages
(4) the amount of any damages to which he would be entitled.
THE FACTS
On 19 September 2000, the claimant arrived in the United Kingdom with his daughter, now aged 1He claimed asylum on arrival. His two eldest sons, Hassan aged 23 and Huseyin aged 21, were already present in the United Kingdom and had claimed asylum. On 30 September 2000 the claimant's wife arrived in the United Kingdom, accompanied by her youngest son, born 1 st June 1988, then aged 12 and now 15. The claimant and his family lived with their two elder sons in a one bedroom flat in Tottenham, London. The claimant, his wife and dependent children were offered accommodation by NASS in Hull. They refused, preferring to stay in London with the two elder sons. In August 2001 the two elder sons’ claims for asylum were refused. Their entitlement to income support and housing benefit accordingly ended. On 8 th August 2001 the claimant applied to NASS for assistance. He suffered from psychological problems, which he contended were attributable to experiences of torture in Turkey. A psychiatric report from Dr Paulpillai, provided to NASS on or before 6 th September 2001, diagnosed depression and psychotic depression, which the psychologist linked to torture and abuse. He had disturbed sleep and nightmares. He was treated with antidepressant medication. His general practitioner, whose report was also provided to NASS described the claimant as suffering from post-traumatic stress disorder. It recorded that he was unable to sleep at night, treated his wife with violence and neglected himself. He was withdrawn and uncommunicative. He was fearful and frightened of the police.
On 7 September 2001, the claimant and his family went to Glasgow. In her witness statement, his wife describes the hostility and intimidation with which they were faced in Glasgow. They were frightened to leave their flat. Her husband and she were shouted at in the streets. Groups of people hanging around the Toryglen Estate threatened them with dogs, spat at them and swore at them. Shopping was difficult. She was humiliated when using vouchers and waiting in the queue and checkout. Her son was bullied at school. She describes her husband's health deteriorating in Glasgow. On one occasion, she says, he tried to throw himself out of a window. She says that the family stayed in the flat as much as possible. Asylum seekers in an adjacent block of flats had their windows smashed. Immediate neighbours had a panic button installed in their home.
On 27 October 2001 the claimant's home was attacked by a group of men. Her son Ibrahim was threatened with a knife. Police accepted the incident as a racist attack and housed them in emergency accommodation.
On 28 October 2001 the family returned to London and lived in overcrowded accommodation with the claimant's brother in law and his family. On 6 November 2001 NASS was informed of the family's return to London, its fears and request for further assistance. On 7 November 2001 NASS informed the Refugee Council, acting on behalf of the family, that it would provide emergency accommodation for only one night and would investigate their allegations of racial harassment with a view to re-housing them in alternative accommodation in Glasgow. On 9 th November 2001 the family was informed that, pending investigations, it was required to return to the accommodation in Toryglen. On 22 nd November 2001 the claimant was informed that enquiries were complete and that the family would be returned to Glasgow on 28 th November 2001 and if they did not return, all support would be terminated. That decision was maintained on 23 rd and 26 th November. On 27 th November 2001 NASS determined that the family was entitled only to subsistence support because they would not return to Glasgow. In fact no vouchers for subsistence were sent until 30 th January 2002. On 11 th March 2002 following receipt of a report from the Medical Foundation, NASS withdrew its decision that the family should return to Glasgow.
These proceedings were launched on 9 th February 2002 and permission was granted on 12 th March 2002.
Subsequently there was a day's hearing before another judge on 5 th December 2002. At the end of that day he ordered that enquiries should be made of NASS and Glasgow City Council as to the date that Toryglen properties were first used and the date when NASS was first informed that there were concerns about asylum seekers in Toryglen and as to the terms of that information. The matter has subsequently come before me.
No one hearing of the circumstances with which this family were faced can fail to feel sympathy. No one should be subjected to the sort of treatment, which this family faced. Still less when they have left their country of origin and assert a fear of persecution. The undisputed social intimidation and violence, which this family suffered, brings shame upon any country, which holds itself out as a safe haven against persecution. But any expression of sympathy or shame affords no principled basis for resolution of the issues to which this case gives rise.
THE STATUTORY FRAMEWORK
By Section 95(1) of the Immigration & Asylum Act 1999 (“the 1999 Act”):-
“The Secretary of State may provide or arrange for the provision of support for –
(a) asylum seekers or
(b) dependents of asylum seekers,
who appear to the Secretary of State to be destitute or likely to become destitute”.
By Section 96(1):
“Support may be provided under Section 95 –
(a) by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependents”.
By Section 97:
“(1) When exercising his power under Section 95 to provide accommodation the Secretary of State must have regard to –
(a) the fact that the accommodation is to be temporary pending determination of the asylum seeker's claim
(b) the desirability in general for providing accommodation in areas in which there is a ready supply of accommodation and
(c) such matters (if any) as may be described.
(2) But he may not have regard to –
(a) any preference that the supported person or his dependents (if any) may have as to the locality in which the accommodation is to be provided”.
By Article 3 of the European Convention on Human Rights:-
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
By Article 8:-
“(1) Everyone has a right for respect for his private and family life
(2) There shall be no interference by a public authority for the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
THE SECRETARY OF STATE'S POSITIVE OBLIGATION TO SAFEGUARD THE RIGHTS OF THE CLAIMANT AND HIS FAMILY ENSHRINED IN ARTICLE 3 AND ARTICLE 8.
The claimants essential case is that to send this family, vulnerable as it was, to the Toryglen Estate, exposed the family to a real risk of racial abuse and violence. In those circumstances the Secretary of State was under a positive obligation to avoid that risk by ceasing to send families such as the claimants to the Toryglen Estate and by providing accommodation to them elsewhere.
This contention involves consideration of the circumstances in which positive obligations may be imposed upon the Secretary of State to avoid exposure to treatment, which infringes rights either under Article 3 or under Article 8.
The first question must be whether the treatment to which the claimant and his family were exposed at the Toryglen Estate was treatment falling within Article 3. It is by now well settled that Article 3 is only...
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