State treatment of asylum seekers
R v Secretary of State for the Home Department, ex parte Adam and others [2005] UKHL 66, 3 November 2005


In these conjoined appeals, the House of Lords considered section 55 of the Nationality, Immigration and Asylum Act 2002, which required the home secretary to deny any support to an asylum seeker where he was not satisfied that the claim for asylum was made as soon as reasonably practicable after the applicant's arrival in the country.


But section 55(5)(a) provides that this does not prevent the exercise of a power by the home secretary 'to the extent necessary for the purpose of avoiding a breach of a person's convention right'. All parties agreed that this referred to the absolute right not to be 'subjected to inhuman or degrading treatment' (see article 3 of the European Convention on Human Rights). The question was how it applied in these cases.


For the first 12 months of their stay, asylum seekers may not take employment or engage in a self-employed activity. Section 55 denies them any benefit or other support, with the result that they have neither means of support nor means of earning a living. The individuals in these cases had been living and sleeping rough, without regular access to washing or toilet facilities, to the detriment of their physical and mental health.


The first issue was whether this regime amounted to 'treatment' for which the state was responsible. The Law Lords had no doubt that it did. Parliament had constructed a regime that both prohibited an individual from earning a living and denied him or her any other means of support. The application of that regime to an asylum seeker amounted to treatment.


Article 3 does not create a general duty to house the homeless or provide for the destitute. But if the effect of what the state is doing results in treatment that attains the minimum level of severity prohibited by article 3, the state must refrain from that conduct. In the present cases, the state was so responsible.


In one of the appeals in the Court of Appeal, Lord Justice Laws had sought to distinguish on the one hand breaches of article 3 consisting of violence by state servants and on the other those which result from acts or omissions of state servants which expose the individual to suffering but result from a lawful government policy. He had reasoned that the first category could never be justified but that the second was capable of justification.


The other appeal judges had agreed with this analysis, but the Law Lords emphatically rejected it as having no foundation in the judgments of the European Court of Human Rights or in the language of article 3. For them, the question was only whether the state is properly to be held responsible for the conduct that is prohibited by article 3, and this depends on whether the treatment has attained the minimum level of severity required for a violation of that provision.


The next issue was at what point the article 3 threshold would be crossed in cases of denial of support. Destitution is not in itself enough to trigger the article 3 duty and the question for Lord Hope was 'whether the treatment to which the asylum seeker is being subjected by the entire package of restrictions and deprivations that surround him or her is so severe that it can properly be described as inhuman or degrading treatment'. Some of the factors that are relevant to this assessment are: gender, age, mental and physical health and condition, the weather and the time of year, the extent to which the individual has explored all avenues of assistance, and the length of time likely to be spent without means of support.


The final question was the point at which the home secretary should intervene for the purpose of 'avoiding' breach of a convention right. According to the Lords, he does not have to wait until there is an actual breach before exercising his power.


According to Lord Hope, the home secretary must intervene 'as soon as the asylum seeker makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity'.


The Lords have dealt with this important case with clarity and humanity. It is to be hoped that they have made clear the circumstances in which the home secretary must provide support. And they have ruled out any suggestion that there might be a sliding scale of article 3 cases, with some inhuman and degrading treatment being an acceptable incident of government policy.


By Stephen Grosz, Bindman & Partners, London