Factual and Procedural Background
This claim arises under section 55 of the Nationality, Immigration and Asylum Act 2002, which requires the Secretary of State to refuse support for asylum seekers who have not made their claim as soon as reasonably practicable, except where refusal would breach the individual's human rights under section 55(5). The claimant, a 23-year-old Angolan, arrived in the United Kingdom and claimed asylum promptly. The defendant decided to refuse support on 22 July 2003. The claimant spent two nights sleeping rough and without food before obtaining temporary accommodation through a charity for four nights. Subsequently, solicitors lodged a judicial review claim including a request for interim relief, which was granted by a duty judge to provide accommodation and essential support pending the claim's disposal. Permission to proceed on the section 55(5) human rights ground was later granted by a judge, allowing interim relief to continue. The claimant’s accommodation from the charity ended on 28 July 2003, after which he faced destitution and the prospect of sleeping rough again without support.
Legal Issues Presented
- Whether refusal of support to the claimant under section 55(5) of the Nationality, Immigration and Asylum Act 2002 constitutes a breach of the claimant’s human rights, specifically under Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment) and Article 8 (right to respect for private and family life).
- The appropriate test for assessing when refusal of support amounts to a breach of Article 3, including the severity threshold established in relevant case law.
- The evidential requirements needed from asylum seekers to establish that refusal of support will lead to a breach of their human rights.
- The application and relevance of precedent decisions, including the scope and interpretation of the “Pretty threshold” for ill-treatment under Article 3.
Arguments of the Parties
Appellant's Arguments (Claimant)
- The claimant asserted that refusal of support under section 55(5) would breach his human rights as he faced destitution, no access to accommodation, and would be forced to sleep rough and beg for food.
- The claimant’s solicitor provided evidence that there were very limited charitable resources available to asylum seekers for accommodation and support, and that the claimant had made reasonable efforts to obtain assistance but failed.
- It was submitted that the claimant’s physical ill-health and psychological trauma from sleeping rough contributed to the severity of his situation, thereby meeting the threshold for Article 3 protection.
- The claimant relied on case law establishing that the threshold for Article 3 ill-treatment includes intense physical or mental suffering and degrading treatment that diminishes human dignity.
Respondent's Arguments (Defendant)
- The defendant contended that the evidence did not establish that the claimant’s situation met the high threshold required under Article 3, arguing that the claimant had not sufficiently established his case.
- The defendant relied on a list of organisations providing some daytime assistance to homeless asylum seekers, suggesting some support was available.
- Reference was made to a recent decision (Zardasht) suggesting that prolonged destitution alone may not meet the Article 3 threshold if some charitable support is accessible and the claimant can “fend for himself.”
- The defendant argued that relief should be refused unless it was clear that charitable support was unavailable and the claimant was incapable of self-support.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R(Q) v Secretary of State [2003] EWCA Civ 364 |
Clarified the threshold for Article 3 ill-treatment as requiring a condition verging on severity capable of engaging Article 3, referencing the "Pretty threshold" for intense physical or mental suffering and degrading treatment. |
The court adopted the Court of Appeal's higher threshold test, rejecting a lower "real risk" standard and emphasizing the need for substantial suffering before relief is granted. |
| Pretty v United Kingdom [2002] 35 EHRR 1 |
Defined the minimum level of severity for ill-treatment under Article 3, including actual bodily injury or intense physical or mental suffering, humiliation or degrading treatment diminishing human dignity. |
The court relied on paragraph 52 of Pretty to define the severity threshold for Article 3 breaches in the context of asylum support refusals. |
| R(T) v Secretary of State [2003] EWCA Civ 1285 |
Provided guidance on evidential requirements for asylum seekers to establish Article 3 claims, emphasizing the need to show reasonable efforts to obtain support and the claimant’s physical condition. |
The court applied the principles from R(T) to assess the claimant’s efforts and condition, concluding that failure to obtain support despite reasonable efforts may establish an Article 3 breach. |
| R(T) v Secretary of State for the Home Department [2003] EWHC 1941 (Admin) |
Outlined that asylum seekers refused support may become destitute and suffer humiliation and degradation sufficient to breach Article 3, emphasizing the duty of public authorities to prevent such breaches. |
The court endorsed this reasoning as consistent with the claimant’s circumstances, rejecting a “wait and see” approach to relief and emphasizing early intervention to prevent breaches. |
| Zardasht v Secretary of State [2004] EWHC 91 (Admin) |
Considered the evidential threshold for Article 3 claims, holding that prolonged destitution does not necessarily meet the threshold if some charitable support is available and the claimant can fend for himself. |
The court distinguished this case, accepting the need for evidence but rejecting the view that common sense should be excluded in assessing severity and imminence of harm. |
Court's Reasoning and Analysis
The court began by situating the claim within the framework of section 55 of the Nationality, Immigration and Asylum Act 2002 and the relevant human rights protections under Articles 3 and 8 of the European Convention on Human Rights. It reviewed the established case law, notably the Court of Appeal decisions in R(Q) and R(T), which set a high threshold for Article 3 breaches involving intense physical or mental suffering or degrading treatment that diminishes human dignity, known as the "Pretty threshold."
The court acknowledged the defendant’s argument that the claimant had not met this threshold and that some charitable support was available. However, it found that the claimant had demonstrated reasonable efforts to obtain support and that no overnight accommodation existed for him. The claimant’s evidence of sleeping rough, ill-health, and the absence of meaningful support met the severity threshold, especially given the imminence of winter conditions.
The court rejected a "wait and see" approach advocated by the defendant, reasoning that it would be inappropriate to allow the claimant to deteriorate to the point of breach before granting relief. It emphasized the importance of common sense in assessing the likelihood of harm, particularly in winter, and held that the claimant’s situation constituted a breach of Article 3 and, to a lesser extent, Article 8.
The court also considered the recent decision in Zardasht but distinguished it on the facts and rejected its more restrictive evidential approach, affirming that evidence of reasonable efforts and failure to obtain support sufficed to meet the threshold for relief.
Finally, the court noted the broader public policy implications, including the cost of litigation and the need for a more flexible approach by the Secretary of State to avoid unnecessary litigation and hardship.
Holding and Implications
The court granted the claimant’s application for judicial review on the section 55(5) human rights ground, holding that refusal of support would breach the claimant’s rights under Article 3 of the European Convention on Human Rights. The court emphasized that the claimant had established that he would face destitution, lack of accommodation, and inadequate access to food and support, meeting the "Pretty threshold" for ill-treatment.
Permission to appeal was granted due to a discrepancy in judicial approaches between this court and a recent decision by another judge, allowing the Court of Appeal to consider the correct legal test and approach.
The direct effect of this decision is that the claimant must be provided with accommodation and essential support pending the resolution of his asylum claim. No new precedent was established beyond affirming and applying existing case law, but the decision highlights the court’s willingness to grant interim relief to prevent breaches of human rights in the context of asylum support refusals.