UK - Court of Appeal, 18 March 2003, Q and others, (R on the appplication of) v the Secretary of State for the Home Department [2003] EWCA Civ 364
| Country of Decision: | United Kingdom |
| Court name: | Court of Appeal |
| Date of decision: | 18-03-2003 |
| Citation: | [2003]EWCA Civ 364 |
| Additional citation: | [2003] 2 All ER 905, [2003] HLR 57, 14 BHRC 262, [2003] UKHRR 607, [2003] 3 WLR 365, [2004] QB 36, [2003] HRLR 21, (2003) 6 CCL Rep 136, [2003] ACD 46 |
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
Headnote:
This case considered of the support available for asylum seekers. It was held that the system in place was not procedurally fair and that Art 3 of European Convention on Human Rights (ECHR) was engaged. Judicial review of the refusal was not an adequate remedy for refusal of support where the administrative procedure was unfair and inadequate.
Facts:
Section 55 of the Nationality, Immigration and Asylum Act 2002, (NIAA 2002) prohibited the State from providing support to asylum seekers who had no other means of support if the decsion maker was not satisfied that the claim had been made ‘as soon as reasonably practicable after the person’s arrival in the Unted Kingdom”.
The applicant was interviewed and asked pro forma questions. The interview record was then passed to another official in the National Asylum Support Scheme (NASS) who then took a decsion on whether the applicant qualified for support. There was no statutory appeal, although a failed applicant could apply for judicial review of the decision.
Q and five others were refused support by NASS and applied for judicial review. They were successful on the ground that the procedure used to assess their clalms was unfair on that basis the decsions to refuse were quashed. The Secretary of State appealed to the Court of Appeal, where all the arguments were revisited.
Decision & reasoning:
The court first considered the term ‘reasonably practicable” and while affirming that the burden of proof remained on the applicant, held that both the practical opportunity and applicant’s personal circumstances, including her state of mind on arrival, were relevant to the assessment of whether it was reasonably practical to make an application.
The procedure in place was neither fair nor fairly operated. The court identified a number of points which created unfairness including, a failure to explain the purpose of the interview to the applicant, failure to give the applicant an opportunity to address and rebut a suggestion of incredibility, failure to direct caseworkers to the relevant tests for ‘reasonably practicable’ or Art 3 ( see below), failure to have regard to the applicant’s state of mind, limitations of interviewing skills and the use of restrictive standard from questionnaires, the separation of interviwer and decisionmaker.
If the applicant was unable to satisfy the Secretry of State that it was not reasonably practical for her to claim, then she could base her claim for support on Art 3 ECHR. It was not necessary to show present destitution, she only needed to show that support was necessary to avoid a future breach.
The State had argued that denial of support did not constitute ‘treatment’ in the terms of Art 3 .The court found that there was more than passivity on the part of the State. The law prohibitied applicants from working without permission from the state. The law also prohibited applicants from being removed and if they did leave voluntarily their applications were deemed to be abandoned.
The Court rejected the judge at first instance’s finding that ‘a real risk of destitution’ would suffice to engage Art 3.The threshold for degrading and inhuman treatment was long established as high, but where the condition of an applicant verged on the situation described in §52 of Pretty, then support should be provided.
Art 6 of ECHR was not satisfied by the right to apply for judicial review. The court reasonsed that although judicial review could satisfy Art 6, because the procedure employed in these cases was flawed, the State would not be able to make an infromed decsion on the applicant’s human rights and consequently neither could a court conducting a judicial review. The decsion of the judge at first instance that Art 6 was not satisfied was upheld. The court added that if the state remedied the shortcomings in procedure then the domestic legislation would not be incompatible with Art 6.
Outcome:
Secretary of State’s appeals dismissed.
Observations/comments:
The procedure for granting support to applicants for asylum in the UK has changed considerably since this decision. However, findings in relation to what constitutes treatment for Art 3, and the necessaity for fairness in administrative reception procedures, where the only remedy is judicial review continue to be important. The case should be read with Adam, R (on the application of) v. Secretary of State for the Home Department [2005] UKHL 66 (3 November 2005) (see separate summary in database), in which the House of Lords revisited the issues. Both cases are relevant to the application of Art 13 of the Reception Directive.
Despite changes in procedure, different judges in the High Court have reached different conclusions when considering whether Art 3 was engaged in individual cases.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Grahl- Madsen - The Status of Refugees in International Law (1972), vol 11 p219.