UK - House of Lords, 3 November 2005, Adam, R (on the application of) Secretary of State for the Home Department [2005] UKHL 66

Facts:

The three applicants had each been refused state support because they had not applied for asylum as soon as reasonably practicable. The legality and correctness of these decsions was not disputed. Each had claimed that the denial of State support would result in their Art 3 rights being breached. Their claims had been upheld by separate judges in judicial review proceedings.  The cases were linked when the Secretary of State appealed to the Court of Appeal. The Court divided with the majority dismissing the Secretary of State’s appeal. The minority judgment in the Court of Appeal held that Art 3 could be considered in terms of a spectrum with actual violence by the state at one end and at the other “hardship” occasioned  by the lawful government policy.  The situation of destitute asylum seekers whos situation had not yet reached the gravity envisaged in Pretty,  did not in the view of Laws LJ, engage Art 3.  The majority rejected the proposition that the Secretary of State was bound or entitled to wait and see if the applicant’s circumstances became so poor that the Art 3 threshold was engaged.

The Secretary of State appealed to the House of Lords.  

Decision & reasoning:

The House of Lords apporached the question as one of statutory interpretation and Baroness Hale emphasised that in examining the issue the court was respecting rather than challenging the will of parliament, which had expressly provided for support to the extent necessary to avoid a breach of Convention Rights.
There was unanimous unease of the “spectrum” approach, the Lords notably referring to suffering rather than hardship.

All judgments stressed the restrictions placed on asylum seekers, which meant that if they found themselves destitute they were generally prohibited from seeking work to support themselves.

There was also rejection of the ‘wait and see’ position, ‘ an imminent prospect of serious suffering cased or materially aggravated by denial of shelter, food or the most basic necessities of life’ would suffice.

The court offered no simple test but suggested that if there were ‘persuasive evidence that a late applcant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene the threshold would, in the ordinary way, be crossed.’

Outcome:

Secretary of State’s appeals dismissed.

Observations/comments:

This cases follows the decision in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 (see separate summary in this database) and is relevant not only to the application of Art 13 of the Reception Directive,  but is also important in tracing the development of jurisprudence on Art 3.