R (Limbuela) v Secretary of State for the Home Department

This claim is one of a significant number that are at present before the Administrative Court, which arise out of section 55 of the Nationality, Immigration and Asylum Act 2002. That is the section which requires the Secretary of State to refuse to provide support for asylum seekers who have not made their claim as soon as reasonably practicable, but contains what may be regarded as a proviso in section 55(5) whereby support should be provided if to refuse it would constitute a breach of the individual's human rights.

It was asserted that there was a failure to comply with section 55(1) as well as section 55(5), but permission was granted only on the section 55(5) claim. Accordingly, I have not had to consider the circumstances whereby the claimant made his claim for asylum in any detail at all.

He is a 23 year-old Angolan. He says he arrived in the United Kingdom on 6 May 2003 and claimed asylum the next day. After considering the matter, and after an interview for the purpose of deciding whether the claim had been made as soon as reasonably practicable, the defendant determined on 22 July 2003 that support should be refused. That night, and the following night, the claimant spent, he says, sleeping in a park outside a police station in Croydon and he was unable to eat anything during that period because had no money and no means of finding anywhere to provide him with food. He did manage to get in touch, because he was put onto a firm of solicitors, with Migrant Helpline and they arranged that he should find accommodation with a charity in Kennington. This lasted for some four nights, and on the 28th he was sent to his present solicitors, who are dealing with this claim. They took an account from him of what had happened and what his position was and immediately lodged this claim for judicial review. It also included a claim for interim relief.

That came before Eady J, and I assume, since Eady J is not a nominated judge, it must have been made to him as a duty judge out of hours, and he ordered that, pending disposal of the claim or further order, the defendant should provide accommodation and support for the claimant's essential living needs.

In due course, Jackson J gave permission on the section 55(5) ground and, accordingly, the interim relief has continued. The result is that the claimant has only had to sleep rough and been deprived of all support for two nights. The evidence before me is clear that the temporary accommodation and support that he was getting from the charity in Kennington came to an end on the 28th and it is said on his behalf, and I will come in a little more detail in due course to the evidence, that thereafter he would have had nothing and would have been obliged to sleep rough and to beg for food or find other possible means of sustenance.

The solicitor who lodged the application, Mr Tear, made a statement in support, and in it he said this:

"As part of the preparation of the various judicial reviews in relation to the above type of matter, I have contacted several charities to enquire about support. I have found that there are few charities able to assist asylum seekers with shelter. "

He produced a letter from Migrant Helpline, which was dated 20 June 2003, which stated that the only charity able to assist was Shelter, but they had not been able to place anyone with Shelter. What that letter said, so far as material, was this:

"If the client is unable to obtain an injunction then we are forced to evict the client after seven nights. This could mean that someone who cannot speak English, has no friends in the country and who has no working rights is on the streets with no method of supporting themselves. All that we can provide the client with is a list of charities that may be able to help them. However, with the exception of Shelter, none of these directly provide accommodation and tend to be more concerned with providing food, and to my knowledge we have never successfully managed to find any of our clients accommodation through Shelter. We can also help the clients to get in touch with refugee community organisations if there are any that are appropriate to their nationality. However, we do not know of any that can provide accommodation."

No doubt it was evidence along those lines which helped to persuade Eady J that it was appropriate to grant interim relief, and Jackson J that this claim was arguable.

The approach that the court has to take to these cases has been considered by the Court of Appeal in two lead cases. The first was R(Q) v Secretary of State [2003] EWCA Civ 364. That was in fact an appeal from a decision of mine. The test that I had applied to the application of Article 3 was whether there was a real risk that there would be a breach, and if there was a real risk, that that was sufficient to grant relief. That, the Court of Appeal said was wrong and the test was more immediate than that. What the court said was that there had to be a condition which verged on the degree of severity capable of engaging Article 3 as described in the case of Pretty v United Kingdom [2002] 35 EHRR 1. The relevant paragraph in Pretty is paragraph 52, and it is worth reciting it. It reads as follows:

"As regards the types of 'treatment' which fall within the scope of Article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."

The threshold set by that quotation is clearly a relatively high one. Mr Jacobs has submitted that there are two elements. The first is the minimum level of severity involving bodily injury; the second, which, he submitted, was an alternative, was humiliation or debasing of an individual showing a lack of respect for, or diminishing, his or her human dignity. But it is the treatment which must result in that and the treatment must attain the minimum level of severity and must involve, as the court held, intense physical or mental suffering. The use of the adjective "intense" is simply, as I see it, to make the point, and to underline the point, that it must be a physical or mental suffering which is substantial as opposed to perhaps something which, although unpleasant, is no more than that. So that is, and has been laid down by the Court of Appeal to be, the test.

Furthermore, as the court in Q went on to say in paragraph 63:

"It is not unlawful for the Secretary of State to decline to provide support unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself."

The court went on to indicate that the Secretary of State must be prepared to entertain further applications from those to whom he had refused support, who had not been able to find any charitable support or any other lawful means of fending for themselves, and I know that the Secretary of State has indicated, and certainly in that case indicated through the Attorney General who appeared on his behalf, that it was always open to asylum seekers who had been refused support to re-apply if circumstances required.

It is not only Article 3 which may be in play; it is also Article 8. Article 8 was considered by the Court of Appeal in Q, but the court decided that there was no real need to consider it at greater length because, in the context of the case of Q, Article 8 added little. It is of course a lesser test than that applicable in Article 3, and to treat someone in such a way as inevitably results in him having to sleep rough and be without the means of support would clearly engage Article 3 and, as it seems to me, would constitute an interference with the rights that are set out in Article 8(1). It would then be necessary to consider proportionality in the context of article 8(2). But it may be, and I will come to consider this shortly, that to treat someone in the way indicated when he had no access to accommodation, no access to support other than highly precarious, would in itself constitute a breach of Article 3.

The effect on the individual is what is important in this context and, as Miss Grange accepted, if someone had, for example, been tortured in the country from which he was coming and was in a state so that treatment of a particular sort bore more heavily upon him, that is a matter which would have to be taken into account and might mean that his human rights, because it is his human rights that are in issue, would be breached.

That is of course also consistent with the approach of the Court of Appeal in the second authority...