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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Phillips, MR
Judgment Date18 Mar 2003
Neutral Citation[2003] EWCA Civ 364,[2003] UKHRR 607
Docket NumberCase No: C2/2003/0378/A/B

[2003] EWCA Civ 364

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

The Hon. Mr Justice Collins

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Phillips of Worth Matravers, Mr

Lord Justice Clarke

Andlord Justice Sedley

Case No: C2/2003/0378/A/B

The Queen on the Application of 'q' & Others
Respondents
and
Secretary of State for the Home Department
Appellant

Mr Nicholas Blake QC with Mr Stephen Knafler, for D and B, with Mr Simon Cox for M, J and F and with Mr Benjamin Hawkin for Q (instructed by Clore & Co; Refugee Legal Centre; Ben Hoare Bell and Asghar & Co for the Respondents)

Lord Goldsmith AG, QC, Mr David Pannick QC, Mr Clive Lewis and Miss Samantha Broadfoot (instructed by The Treasury Solicitor for the Appellant)

Mr Rabinder Singh QC and Mr Raza Husain (instructed by Joint Council for the Welfare of Immigrants and Liberty as Intervenors)

INDEX

Heading

Paragraphs

Introduction

1–5

Legislative History

6–12

The Issues raised by Section 55

13–16

'As soon as reasonably practicable'

17–36

The Test

37–43

Article 3 of the Convention

44–51

Positive and Negative Obligations

52–63

Article 8

64

Procedure : The Questions

65–68

The Principle of Fairness

69–73

The System

74–79

Is the System Fair?

80–102

The Individual Cases

103–109

Section 55(10) and Article 6

110–117

Conclusions

118–119

Postscript

120

Lord Phillips, MR

This is the judgment of the Court to which all members have contributed.

Introduction

1

This is an appeal from the judgment of Collins J dated 19 February 2003. The issues that it raises all relate, in one way or another, to the efficacy of section 55 of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act'), which came into force on 8 January of this year. Before that date, any asylum seeker who had no means of obtaining adequate accommodation or who could not meet his other essential living needs was likely to look to the Secretary of State for assistance. Under the legislative scheme, as it had developed, he and he alone had the power to provide such persons with assistance. Section 55 of the 2002 Act now provides that the Secretary of State 'may not provide or arrange for the provision of support' to a person making a claim for asylum where he 'is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom'. Collins J had before him applications for judicial review by six asylum seekers whose claims for support had been refused on the ground that they had failed to satisfy the Secretary of State that they had advanced their claims for asylum as soon as reasonably practicable. Collins J allowed those applications and quashed the decisions, primarily on the grounds that the procedure adopted in each case was not fair. The Secretary of State appeals against his decision. We have permitted the Joint Council for the Welfare of Immigrants and Liberty to make a joint intervention by short oral and written submissions. The cases have been treated as test cases.

2

Had the provision of section 55 of the 2002 Act gone no further than that which we have quoted above, it would have raised two of the issues with which Collins J had to grapple: (i) what is meant by reasonably practicable and (ii) what procedural safeguards does the section require? The issue might, however, have arisen of whether the provision was compatible with the European Convention on Human Rights ('the Convention'), as applied by the Human Rights Act 1998. In the event that issue does not arise for section 55(5) of the 2002 Act provides that the section shall not prevent 'the exercise of a power by the Secretary of State to the extent that this is necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998)'.

3

This raises the following conundrum. On the one hand section 55(1) prohibits the Secretary of State from providing support to persons who are destitute, but on the other hand section 55(5) permits him to provide support in so far as this is necessary to prevent a breach of an applicant's Convention rights. Article 3 of the Convention provides that no one shall be subjected to 'inhuman or degrading treatment' and section 6 of the Human Rights Act 1998 forbids the Secretary of State to act incompatibly with the Convention rights. Can the Secretary of State refuse support to the destitute without thereby subjecting them to inhuman treatment? If there are some circumstances in which he can do so, how are they to be defined and what procedure is required to make sure that he does not stray outside them? A similar issue arises in relation to Article 8, which provides that everyone has the right to his private and family life and his home. Will refusal of assistance to the destitute infringe this right? Collins J held that there was a potential tension between section 55(1) and both Article 3 and Article 8.

4

The task of any court when faced with issues of statutory construction, such as those which arise in this case, is to deduce and give effect to the intention of Parliament. The judge has no discretion of his own. Rules of law prescribe what can and what cannot be considered when seeking to interpret a statute. The starting point must always be the words of the statute itself, but where there is any uncertainty there is other material to which it is legitimate to have regard and principles of construction which fall to be applied.

5

This appeal, which is concerned with the meaning and application of a single section of a statute, raises difficult and important issues, as is demonstrated by the fact that the argument before us, of the Attorney-General and Mr Pannick QC on the one hand and Mr Nicholas Blake QC and Mr Rabinder Singh QC on the other, lasted three and a half days. The judgment of Collins J covered 34 pages of transcript. The approach of Collins J to his task cannot be faulted and we commend the care with which, in his lengthy judgment, he addressed the difficult issues before him.

Legislative History

6

In 1986 the Social Security Act introduced a regime under which income support could be claimed by those with no or minimal income. Under this regime, asylum seekers who were awaiting the determination of their claims were entitled to income support. In 1993 the Asylum and Immigration Appeals Act first provided express statutory protection for asylum seekers, including protection against refoulement pending the determination of their claims. In 1996 Regulations were introduced which purported to restrict entitlement to income support to those asylum seekers who claimed asylum on entry into the United Kingdom. In R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 the majority of the Court of Appeal held that the Regulations were ultra vires in that they rendered nugatory the rights conferred by the 1993 Act on 'in-country' applicants for asylum. At p292 Simon Brown LJ commented:

"After all, the Act of 1993 confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Either that, or the Regulations necessarily contemplate for some a life so destitute that to my mind no civilised nation can tolerate it. So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention on Human Rights to take note of their violation. Nearly 200 years ago Lord Ellenborough C.J in Reg v Inhabitants of Eastbourne (1803) 4 East 103, 107 said:

'As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving;…'

True, no obligation arises under Article 24 of the Convention of 1951 until asylum seekers are recognised as refugees. But that is not to say that up to that point their fundamental needs can properly be ignored. I do not accept they can. Rather I would hold it unlawful to alter the benefit regime so drastically as must inevitably not merely prejudice, but on occasion defeat, the statutory right of asylum seekers to claim refugee status. If and when that status is recognised, refugees become entitled under Article 24 to benefit rights equivalent to nationals. Not for one moment would I suggest that prior to that time their rights are remotely the same; only that some basic provision should be made, sufficient for genuine claimants to survive and pursue their claims."

He concluded his judgment at p293:

"Parliament cannot have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs."

7

In response to this judgment, section 11 of the Asylum and Immigration Act 1996 expressly conferred the power to make Regulations excluding asylum seekers from entitlement to income support. Under the provisions of that Act, or of subordinate legislation made under it, asylum seekers who did not claim asylum at the point of entry lost all assistance to public housing benefit or social...

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