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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> T, R (on the application of) v Secretary of State for the Home Department  EWCA Civ 1285 (23 September 2003)
Cite as:  EWCA Civ 1285
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAURICE KAY J
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE SEDLEY
| R ('T').
|- v -
|The Secretary of State for the Home Department
Stephen Knafler (instructed by Pierce Glyn) for the respondent
Hearing date: 26th August 2003
Crown Copyright ©
Lord Justice Kennedy:
"(1) The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in sub section (2) if -
(a) the person makes a claim for asylum which is recorded by the Secretary of State, and
(b) the Secretary of State is not satisfied that the claim was made as soon as is reasonably practicable after the person's arrival in the United Kingdom.
(2) The provisions are -
(a) Sections .. 95 .. of the Immigration and Asylum Act 1999 (support for asylum-seeker, etc)
(5) This section shall not prevent -
(a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person's Convention rights (within the meaning of the Human Rights Act 1998)."
(1) the Secretary of State was not satisfied that their claims were made as soon as reasonably practicable after their arrival in the United Kingdom - sub section 1(b) - and,
(2) their circumstances were not such as to require the Secretary of State to act pursuant to sub section 5 when read together with Article 3 of the European Convention on Human Rights.
The Judge's Findings, and the scope of this appeal.
"(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."
By section 21(5) of the 1948 Act the accommodation can include board and other services. In R v Westminster City Council and others ex parte M,P,A and X  1 CCLR 85 it was held in this court that destitute asylum-seekers could derive benefit from section 21. Lord Woolf MR said at 94(F) -
"The destitute condition to which asylum-seekers can be reduced as a result of the 1996 Act coupled with the period of time which, despite the Secretary of State's best efforts, elapses before their applications are disposed of means inevitably that they can fall within a class who local authorities can properly regard as being persons whose needs they have a responsibility to meet by the provision of accommodation under section 21(1)(a)."
At that stage the burden on some local authorities of meeting the needs of destitute asylum-seekers was heavy, so in the Immigration and Asylum Act 1999 Parliament relieved local authorities of a substantial part of that burden. By section 116 of the 1999 Act there was added to section 21 of the 1948 Act subsection 1A, which reads -
"A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub section (1)(a) if his need for care and attention has arisen solely -
(a) because he is destitute; or
(b) because of the physical effects, or anticipated physical effects, of his being destitute."
Section 115 applies to persons subject to immigration control, and they are defined as including non-nationals of EEA states who require leave to enter or remain in the United Kingdom but do not have it. The use of the word 'solely' in the new section 21(1A) left the local authority with a responsibility for those whose need for care and attention was attributable to a combination of factors, and not simply to destitution and its effects (see R v Wandsworth BC ex parte O  1 WLR 2539). But for all others, the able-bodied destitute, it was provided by section 95 of the 1999 Act that the Secretary of State would assume responsibility. That section, so far as material, reads -
"(1) The Secretary of State may provide, or arrange for the provision of, support for -
(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
(3) For the purposes of this section, the person is destitute if -
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs."
Article 3 and R (Q) v Secretary of State  2 All ER 905.
"The degree of degradation that must be demonstrated to engage Article 3 falls significantly below this definition of destitution."
The court then referred to the decision of the European Court in O'Rourke v UK 26th June 2001 unreported. That decision was relied upon by Mr Eadie before us, so it is worth closer examination. The applicant was a sex offender who on his release from prison had secured temporary local authority accommodation from which he had been evicted for pestering female residents. He ignored advice to go to a night shelter whilst a decision on permanent re-housing was taken. He proceeded to turn down a series of apparently reasonably offers of permanent accommodation. Having finally been offered and accepted a council tenancy he sued the local authority for damages. The House of Lords in 1997 decided that the County Court judge had been right to strike out his action on the ground that no private law right of his had been infringed. His solicitors then petitioned the European Court of Human Rights alleging breaches of Articles 3, 8 and 13. In rejecting Mr O'Rourke's case under Article 3 as inadmissible, the court said:
"The court does not consider that the applicant's suffering following his eviction attained the requisite level of severity to engage Article 3. Even if it had done, the court notes that the applicant failed to attend a night shelter pending a decision on permanent housing, contrary to the advice he was given .. following his eviction. He also indicated an unwillingness to accept temporary accommodation and refused two specific offers of accommodation prior to his acceptance of temporary accommodation .. The applicant was therefore largely responsible for his own deterioration following his eviction."
The particular facts of O'Rourke were therefore unusual, and do not support the suggestion that homelessness is not capable of being a relevant factor for the purposes of Article 3. In paragraph 60 of Q this court said -
"It is quite impossible by a simple definition to embrace all human conditions that will engage Article 3. In Pretty v UK  2 FCR 97 at 131 the Strasbourg Court provided the following guidance:
'52. 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."
"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."
At the end of the judgment in Q, where the court was considering not only Article 3 but also section 55(1) Article 8 and the fairness of the system then in operation, the court said in paragraph 119 that the burden of satisfying the Secretary of State that support is necessary to avoid a breach of Article 3 lies upon the applicant. He has to show that the support is necessary to avoid his being subjected to inhuman or degrading treatment, and the threshold is a high one. Where the condition of an applicant verges on the degree of severity described in Pretty then the Secretary of State must act.
"As a general definition of the term 'degrading treatment' the applicants submit that the treatment of a person is degrading 'if it lowers him in rank, position, reputation or character, whether in his own eyes or in the eyes of other people.' The Commission finds this broad interpretation of the ordinary meaning useful when defining the term 'degrading treatment' in Article 3 of the Convention. In view of the particular context in which the term is used in Article 3, the Commission considers, however, that the above interpretation must be narrowed.
Article 3 states that no one shall be subjected to 'torture or to inhuman or degrading treatment or punishment'. The term 'degrading treatment' in this context indicates that the general purpose of the provision is to prevent interferences with the dignity of man of a particularly serious nature. It follows that an action, which lowers a person in rank, position, reputation or character, can only be regarded as 'degrading treatment, in the sense of Article 3, where it reaches a certain level of severity."
At paragraph 195 the Commission recalled its statement at an earlier case that-
"treatment of an individual may be said to be 'degrading' in the sense of Article 3 'if it grossly humiliates him before others or drives him to act against his will or conscience.' This definition is similar to the interpretation reached above; in particular, the word 'grossly' indicates that Article 3 is only concerned with 'degrading treatment' which reaches a certain level of severity."
"Ill treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim."
That case was concerned with a serving prisoner and the following paragraphs of the judgment reflect that fact. So they are of limited assistance in the present case. It will naturally be relevant, but it is not in any sense requisite that the purpose of the treatment is to debase or humiliate and Mr Eadie is entitled to point out that in relation to asylum-seekers the treatment (i.e. forbidding them to work while their claims are being considered) has no such purpose. What matters more is its effect. Mr Eadie further submits, and we accept, that even if the treatment causes the claimant emotional distress that, of itself, is not enough, but it is clearly a factor when considering the Pretty test.
The facts of S.
"In my judgment it was clear beyond all doubt that S had no access to charitable support and could not fend for himself from mid June. Indeed, he had been forced to beg for food for a considerable time before that and the medical report of 20th May provided evidence of psychological disturbance and significant weight loss at that time. His condition was verging on the degree of severity described in Pretty at the time when he commenced these proceedings. To refuse or fail to provide him with support at that stage debased him and diminished his human dignity in the manner described in Pretty. His is a state of destitution which, to use the words of Q, 'results in ill health or some other similarly severe adverse consequence'. Although he failed under section 55(1) his application for judicial review by reference to Article 3 must succeed."
The facts of T.
"In T's case I ignore the period between 4th March and 10th March during which time any privation was substantially self-inflicted. He was then accommodated by NASS until 15th April. Apart from some unsuccessful attempts to plead for shelter in churches, T then 'lived' at Heathrow until the Secretary of State provided him with accommodation on a without prejudice basis on 24th April. On 9th May the Secretary of State confirmed that he stood by his original decision to refuse support. T commenced proceedings on 13th May and obtained interim relief by order of Owen J two days later.
T's Article 3 claim is based on his circumstances when 'living' at Heathrow. He found it difficult to rest or sleep because of the noise and the light and because he would be moved on by the police. Any ablutions were confined to public lavatories and he was unable to wash his hair or his clothes or to bathe or shower. He developed a problem with his left eye and also a cough. He carried his belongings around with him in holdalls and became increasingly worried. When T's solicitors wrote to the Treasury Solicitor on 23rd April they stated that T had been sleeping rough at Heathrow since 15th April. They referred to difficulties there and to T's health being affected. They referred to his becoming increasingly demoralised and humiliated. They also referred to his fear of sleeping on the streets lest he might be attacked and have his papers stolen. Notwithstanding his unusual personality and history, I see no reason to doubt his factual account of his life since he came to this country. In his case, too, I find that he has no access to charitable support and is incapable of fending for himself. I am satisfied that his condition verges on the degree of severity described in Pretty. The refusal or withdrawal of support is debasing him and showing a lack of respect for his human dignity with the consequences referred to in Pretty. In my judgment his application in relation to Article 3 must also succeed."
The question whether the effect of the State's treatment of an asylum-seeker is inhuman or degrading is a mixed question of fact and law. The element of law is complex because it depends on the meaning and effect of Article 3. Once the facts are known, the question of whether they bring the applicant actually or imminently within the protection of Article 3 is one which Mr Eadie accepts can be answered by the court - assuming that viable grounds of challenge have been shown - without deference to the initial decision-maker. Equally, he submits and we would accept, this court is as well placed as the judge at first instance to answer the question. Adopting this approach, we accept the submission of Mr Eadie that the judge's conclusion in T's case does not follow from the facts he sets out. It is impossible to find that T's condition on 24th April had reached or was verging on the inhuman or the degrading. He had shelter, sanitary facilities and some money for food. He was not entirely well physically, but not so unwell as to need immediate treatment. We therefore allow this appeal.