Adam, R (on the application of) v. Secretary of State for the Home Department

Factual and Procedural Background

The appeals arise out of three linked judicial-review claims brought by single adult asylum-seekers (“Respondent 1,” “Respondent 2,” and “Respondent 3”). Each entered The United Kingdom during 2003, claimed asylum one day or more after arrival, and was therefore denied mainstream support under Part VI of the Immigration and Asylum Act 1999 by virtue of section 55(1) of the Nationality, Immigration and Asylum Act 2002. Because section 55(1) applied, the Defendant (the Secretary of State) withdrew accommodation and subsistence previously given on an emergency basis.

Respondent 1 slept rough for two nights, obtained brief charitable shelter, and was again about to be street-homeless when interim relief was granted. Respondent 2 faced immediate eviction and claimed he would be forced to sleep outside, beg for food, and that his physical and psychological health would deteriorate. Respondent 3 slept in a London car park for almost one month, relying on daytime help from a charity but with no night shelter, developing a cough and weight-loss.

In separate Administrative Court proceedings each respondent obtained interim relief and, after full hearings, orders quashing the Defendant’s refusal of support. The Defendant’s appeals were dismissed by a majority of the Court of Appeal; the Defendant then appealed to the House of Lords (now the Supreme Court). By the time of the ultimate hearing, all three respondents’ asylum claims had been finally determined (two successfully, one unsuccessfully), so only the legal issue on section 55(5)(a) remained live.

Legal Issues Presented

1. Whether, and in what circumstances, section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 obliges the Defendant to provide support to a late-claiming asylum-seeker in order to avoid a breach of Article 3 of the European Convention on Human Rights (“ECHR”).
2. What level of deprivation amounts to “inhuman or degrading treatment” for Article 3 purposes when that deprivation results from the statutory withdrawal of support and the concurrent ban on employment.
3. Whether the courts below applied the correct legal test in concluding that each respondent had reached, or was imminently to reach, the Article 3 threshold.

Arguments of the Parties

Defendant’s Arguments

• Section 55 embodies a legitimate policy of deterring unmeritorious or delayed asylum claims and reducing public expenditure; the statutory bar should only be overridden in “exceptional or extreme” cases.
• Article 3 imposes an absolute prohibition only in cases of direct violence; when hardship results from lawful social-welfare policy the State’s obligations are merely positive and subject to justification.
• Street homelessness does not automatically cross the Article 3 threshold; O’Rourke v United Kingdom is authority that rough sleeping can fall short of the requisite severity.

Respondents’ Arguments

• The combined effect of withdrawing all support and prohibiting work is “treatment” attributable to the State; where that treatment denies the basic necessities of life it breaches Article 3.
• Section 55(5)(a) is framed in terms of “avoiding” a breach; the Defendant must act as soon as an imminent risk of inhuman or degrading treatment is established, not after it has occurred.
• The factual findings of the Administrative Court judges—that each respondent faced or was enduring serious hunger, exposure, absence of hygiene facilities and humiliation—clearly met the Article 3 standard described in Pretty v United Kingdom.

Table of Precedents Cited

Court's Reasoning and Analysis

All members of the Appellate Committee agreed that:

• Section 55(1) deliberately withholds support from late applicants, but section 55(5)(a) expressly preserves the Defendant’s obligation to comply with Article 3 ECHR. Hence the Defendant’s discretion is binary: support is mandatory when necessary to avoid a breach and prohibited otherwise.
• Article 3 is absolute; once the impugned conduct reaches the requisite severity, policy considerations and proportionality are irrelevant.
• The combined statutory regime (support withdrawal plus employment ban) is “treatment” attributable to the State. The question is therefore whether that treatment is, or is imminently liable to become, inhuman or degrading.
• The threshold is high, but will ordinarily be crossed where an applicant, lacking all resources, must sleep in the street for anything more than a short, finite period, or faces serious hunger, inability to maintain basic hygiene, exposure to the elements, or comparable humiliation.
• Section 55(5)(a) requires preventive action; the Defendant must act when an imminent prospect of an Article 3 breach is shown, not after the breach has already occurred.

Applying those principles, the House accepted the first-instance findings that each respondent faced an “imminent prospect of serious suffering” (Judge Collins), that Respondent 2 had “no shelter … and would be forced to beg” (Judge Gibbs), and that Respondent 3’s month of rough sleeping showed conditions “verging on inhuman or degrading” (Judge Charles). No error of law was shown in those assessments.

Holding and Implications

Appeals DISMISSED.

Direct Effect: The Defendant must provide, or arrange, support whenever a late-claiming asylum-seeker’s circumstances are at, or imminently approaching, the Article 3 threshold. Courts will grant relief if the Defendant fails to do so.

Broader Implications: The decision clarifies that State-induced destitution can constitute degrading treatment and that section 55(5)(a) operates as a preventive safety-net. No new statutory scheme is created, but the existing discretion under sections 4, 95, and 98 of the 1999 Act must now be exercised in conformity with the guidance supplied by the House.