R (Limbuela) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 03 November 2005 |
| Neutral Citation | [2005] UKHL 66 |
| Date | 03 November 2005 |
| Court | House of Lords |
ex parte
ex parte
ex parte
[2005] UKHL 66
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Appellants:
Nigel Giffin QC
John-Paul Waite
Kate Grange
(instructed by Treasury Solicitor)
Respondents:
Nicholas Blake QC
Christopher Jacobs
(instructed by: White Ryland (Limbuela and Tesema)
H C L Hanne & Co (Adam))
Interveners
National Council for Civil Liberties and Justice (written submissions)
(instructed by Liberty)
Shelter (written submissions)
(instructed by Shelter)
My Lords,
In what circumstances does the Secretary of State become entitled and obliged, pursuant to section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002, to provide or arrange for the provision of support to an applicant for asylum where the Secretary of State is not satisfied that the claim for asylum was made as soon as reasonably practicable after the applicant's arrival in the United Kingdom? That is the issue in these appeals. In answering it I adopt with gratitude the summary given by my noble and learned friend Lord Hope of Craighead of the facts, so far as material, and the relevant legislation.
It is well known that the very sharp rise in the number of applications for asylum over the last decade or so has given rise to a number of administrative and other problems. The legislative response of successive governments has been founded on two premises in particular: that while some of the applications are made by genuine refugees, having a well-founded fear of persecution in their home countries, a majority are not but are made by so-called economic migrants, applicants seeking a higher standard of living than is available in their home countries; and that the UK is an attractive destination for such migrants because it treats, or is widely believed to treat, such applicants more generously than other countries. Thus provisions have been enacted with the object, first, of encouraging applicants to claim asylum very promptly. This is because it is thought that claims made promptly are more likely to be genuine, because such claims are easier to investigate, and because if claims are made promptly and are judged to be ill-founded, the return of the unsuccessful applicant to his country of origin is facilitated. It has also been sought, secondly, to restrict the access of asylum applicants to public funds. The object is to reduce the burden on the public purse; to restrict public support, so far as possible, to those who both need and deserve it; to mitigate the resentment widely felt towards unmeritorious applicants perceived as battening on the British taxpayer; and to discourage the arrival here of economic migrants by dispelling the international belief that applicants for asylum are generously treated. The policy and purposes underlying and expressed in a series of enactments are not in issue in these appeals. They represent a legislative choice, and the issue between the parties turns on the application of the parliamentary enactments now current.
Section 95 of the Immigration and Asylum Act 1999 authorises the Secretary of State to provide or arrange for the provision of support for asylum-seekers and their dependants who appear to the Secretary of State to be destitute, as defined, or likely to become so within a prescribed period. That authority is revoked by section 55(1) of the Nationality, Immigration and Asylum Act 2002 where a person makes a recorded claim for asylum but the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the UK. Each of the three respondents made recorded claims for asylum on the day of arrival in the UK or the day after, but the Secretary of State was not satisfied that any of them had made the claim as soon as practicable, and his conclusions on that point give rise to no live issue. If the legislation ended there, it would be plain that the Secretary of State could not provide or arrange for support of the respondents, even if he wished, and however dire their plight.
But the legislation does not end there. The prohibition in section 55(1) is qualified by section 55(5). Paragraphs (b) and (c) of subsection (5) are not immediately pertinent to these appeals, since each of the respondents is a single adult, but they show a clear parliamentary intention that the prohibition in subsection (1) should not subject children and young persons to deleterious privation. In paragraph (a) of subsection (5) Parliament recognised that the prohibition in subsection (1) could lead to a breach of an applicant's rights under the European Convention on Human Rights, which public authorities including the Secretary of State and the courts are obliged to respect by section 6 of the Human Rights Act 1998.
Thus 55(5)(a) authorised the Secretary of State 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. But the Secretary of State's freedom of action is closely confined. He may only exercise his power to provide or arrange support where it is necessary to do so to avoid a breach and to the extent necessary for that purpose. He may not exercise his power where it is not necessary to do so to avoid a breach or to an extent greater than necessary for that purpose. Where (and to the extent) that exercise of the power is necessary, the Secretary of State is subject to a duty, and has no choice, since it is unlawful for him under section 6 of the 1998 Act to act incompatibly with a Convention right. Where (and to the extent) that exercise of the power is not necessary, the Secretary of State is subject to a statutory prohibition, and again has no choice. Thus the Secretary of State (in practice, of course, officials acting on his behalf) must make a judgment on the situation of the individual applicant matched against what the Convention requires or proscribes, but he has, in the strict sense, no discretion.
Article 3 of the European Convention prohibits member states from subjecting persons within their jurisdiction to torture or inhuman or degrading treatment or punishment. Since these appeals do not concern torture or punishment, the focus is on inhuman and degrading treatment. Does the regime imposed on late applicants amount to "treatment" within the meaning of article 3? I think it plain that it does. Section 55(1) prohibits the Secretary of State from providing or arranging for the provision of accommodation and even the barest necessities of life for such an applicant. But the applicant may not work to earn the wherewithal to support himself, since section 8 of the Asylum and Immigration Act 1996, the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225) and standard conditions included in the applicant's notice of temporary admission (breach of which may lead to his detention or prosecution) combine to prevent his undertaking any work, paid or unpaid, without permission, which is not given unless his application has been the subject of consideration for 12 months or more. This question was addressed by the Court of Appeal (Lord Phillips of Worth Matravers MR, Clarke and Sedley LJJ) in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, [2004] QB 36, 69, paras 56-57 and I am in complete agreement with their conclusion.
May such treatment be inhuman or degrading? Section 55(5)(a) assumes that it may, and that assumption is plainly correct. In Pretty v United Kingdom (2002) 35 EHRR 1, the European Court was addressing a case far removed on its facts from the present, but it took the opportunity in para 52 of its judgment (which Lord Hope has quoted, and which I need not repeat) to describe the general nature of treatment falling, otherwise than as torture or punishment, within article 3. That description is in close accord with the meaning one would naturally ascribe to the expression. Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment, to be proscribed, must achieve a minimum standard of severity, and I would accept that in a context such as this, not involving the deliberate infliction of pain or suffering, the threshold is a high one. A general public duty to house the homeless or provide for the destitute cannot be spelled out of article 3. But I have no doubt that the threshold may be crossed if a late applicant with no means and no alternative sources of support, unable to support himself, is, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. It is not necessary that treatment, to engage article 3, should merit the description used, in an immigration context, by Shakespeare and others in Sir Thomas More when they referred to "your mountainish inhumanity".
When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical...
To continue reading
Request your trial
-
Ayavoro v Health Service Executive (HSE) & Min for Social & Family Affairs
...- Twinsectra Ltd v Yardley [2002] UKHL 12, [2002] 2 AC 164 considered; R (Linbuela) v Secretary of State for Home Department [2005] UKHL 66, [2005] 3 WLR 1014 distinguished; Hosford v Murphy [1987] IR 621, Keegan v Stardust Tribunal [1986] IR 642 and O'Keeffe v An Bord Pleanála [1993] IR 3......
-
The King (on the application of) BCD by his Litigation Friend EFG) v Birmingham Children's Trust
...Mr Swirsky argued that if any s.17 CA support was needed to avoid ECHR breach, it was not ‘capped’. 106 R(Limbuela) v Home Secretary [2006] 1 AC 396 (HL) concerned the similar statutory provision of s.55(5)(a) NIAA, immediately following s.54 NIAA which empowers Sch.3. “This section shall n......
-
The Queen (on the application of Y) v The Secretary of State for the Home Department
...Version, American Psychiatric Association (1995), a recognised source for symptoms of different recognised mental disorders. 7 [2006] 1 AC 396, HL(E), paragraph 8 (2002) 35 EHRR 1, paragraph 52. 9 Bensaid v UK (2001) 32 EHRR 10, paragraph 37. 10 Application 60654/00, Grand Chamber judgment ......
-
Gabriele Volpi v Delanson Services Ltd
...1996 Act, just as arbitration, if the choice of the parties, is encouraged (as for example by Lord Hoffman in Fiona Trust v Privolov [2007] 1 All ER 951 at [10]. The issue here was alleged prematurity. The claim, otherwise arbitrable, allegedly should not have been brought for another six ......
-
Refoulement
...deinitions of all aspects related to the concept of torture by saying: 580 R (Limbuela) v Secretary of State for the Home Department , [2005] UKHL 66 at paras 8 and 59-63; it was decided that for return to Italy, these conditions were not met; see R (EW) v Secretary of State for the Home De......
-
Table of Cases
...R (EW) v Secretary of State for the Home Department, [2009] EWHC 2957 ...690 R (Limbuela) v Secretary of State for the Home Department, [2005] UKHL 66 ......................................................................................690 R (on the application of Al-Siri) v Secretary of S......
-
Strict Criminal Liability: A Violation of the Convention?
...inhuman and degrading treatmentcontained in Art. 3); and R (on the application of Limbuela) vSecretary of State for theHome Department [2005] 3 WLR 1014, HL (to require an ayslum seeker to sleeprough was inhuman and degrading treatment).66 Barnfather v London Borough of Islington [2003] 1 W......
-
So Far Yet So Close: Comparing Governing Laws in Arbitration Agreements under English and Chinese Laws.
...UKSC 48, [50]-[52]. (87.) See Enka, [2020] UKSC 38. [170]. (88.) See Fiona Trust & Holdings Corp. v. Privalov [2007] UKHL 40. [2007] 1 All ER 951, [17] (appeal taken from (89.) See Enka, [2020] UKSC 38, [142]. [144], (90.) See id. [53]. (91.) In that case, the pro-validity rule has no a......