S Ors, R (on the application of) v Secretary of State for the Home Department

There are before the Court three applications for judicial review in which the claimants challenge decisions refusing them asylum support. Section 55 of the Nationality Immigration and Asylum Act 2002 is headed “Late Claim for Asylum: Refusal of Support”. It came into force on 8 January 2003. Its basic provisions are as follows:

“(1)

The Secretary of State may not provide or arrange for the provision of support to a person under a provision mentioned in subsection (2) if –

(a)

the person makes a claim for asylum which is recorded by the Secretary of State, and

(b)

the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person’s arrival in the United Kingdom.

(2)

The provisions are –

(a)

Sections 4, 95 and 98 of the Immigration and Asylum Act 1999….., and

(b)

Sections 17 and 24 of this Act….”

S

S is a Somali national who arrived in this country by air on 7 January 2003 and claimed asylum the following day. That was the first day of operation of section 55. He still awaits a decision on his asylum application. His claim for asylum support was refused in a decision letter dated 12 May 2003. That letter reads as follows:

“On the basis of the available evidence that you have provided, including all the information you gave during interview at the Asylum Screening Unit, the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

You had the opportunity to claim asylum at the airport when you failed to do so. You alleged that you did not know that you could claim asylum at the airport. However, the Secretary of State does not consider this to be an adequate reason for not claiming asylum on arrival at the airport. He does not find it plausible that you would travel half way around the world without first ascertaining pertinent information concerning your intention to seek international protection. The importance of claiming asylum on arrival at the airport of entry in the United Kingdom is well advertised and generally understood. Therefore the Secretary of State considered that you could and should have claimed asylum at the earliest possible opportunity namely at immigration control on arrival in the United Kingdom.

Although the Secretary of State accepts that a genuine asylum applicant may find it necessary to use deception to facilitate departure from their own country, you entered the United Kingdom illegally, you made no attempt to bring yourself to the attention of the authorities and only claimed asylum after you had entered the United Kingdom. The Secretary of State is of the view that this further strengthens his belief that you did not claim asylum as soon as reasonably practicable after your arrival in the United Kingdom.

The Secretary of State noted that you were unsure of the nationality of the document you used to gain entry into the United Kingdom because the agent handed the passport to you just before you approached the immigration control desk. He noted that when asked in question 2.48 of your screening interview the name you travelled under, you said that you had travelled under the name of Mohamed Mahmoud and the passport you used was a blue British passport. The Secretary of State is aware that the British passport is not blue therefore he considers that you have concocted this aspect of your account in order to mislead him. Furthermore the Secretary of State also noted that you were unsure of the name of the airline you used to gain entry into the United Kingdom and your port of arrival. The Secretary of State has therefore concluded that you have calculatingly failed to provide this information so as to prevent him from establishing you true date of arrival in the United Kingdom.

The Secretary of State has noted that after you entered the United Kingdom, the agent took you to a café patronised by Somalis and left you there. You alleged that you believed that this was what he had contracted to do. You alleged that in the café you approached a Somali man and explained to him your problems. You claimed that he offered to put you up and that you stayed with him one month. The Secretary of State considers it highly unlikely that a total stranger would take you in merely because he felt sorry for you. He considers that you have fabricated this aspect of your account to conceal a pre-arrangement arrangement prior to your arrival in the United Kingdom.”

From 6 March 2003 S was accommodated in various hotels by Migrant Helpline. On 21 May 2003 Migrant Helpline requested the Secretary of State to reconsider the application for asylum support. The request enclosed a medical report from a general practitioner in Margate. The report is dated 20 May 2003. Its author is highly experienced in the examination of refugees. The report states:

“……of considerable current concern is his dramatic loss in weight since his arrival in England. He does not have any physical symptoms to account for this loss of weight, but has had considerable psychological disturbance relating to the circumstances from which he fled Somalia and the uncertainty of his life in England. He states that on his arrival in England he weighed 66 kg. Today he weighs 52 kg and his height is 1.82 metres. Combining these two figures together he has a body mass index (BMI) of 16. A BMI of 19 or less is considered to be underweight and malnourished. A BMI of 16 is therefore evidence of quite considerable malnutrition. It is highly likely that if his support and accommodation is withdrawn then he will have insufficient funds to be able to gain access to food. His weight is thus likely to decline further and it would then be highly likely that he would develop some physical consequences from such a malnourished state.”

The Secretary of State reconsidered the application for asylum support but refused it in a letter dated 12 June. The letter stated:

“You have claimed that your client is suffering from mental and physical stress caused by his imminent eviction. You have submitted a copy of a report from your client’s general practitioner in support of this. Your client’s general practitioner states that you client has developed an abdominal condition and as a result of which is suffering from abdominal pain, anorexia and weight loss. He also states that should your client be evicted from his hotel, your client will not be able to gain access to further medical investigations or medication. The Secretary of State finds this medical report extremely vague. Specifically it does not specify the medical condition your client is suffering from. The report also gives no details of the medication your client has previously been prescribed or the treatment and medication he is receiving at present….. although this report states that your client’s eviction will prevent your client from obtaining medical treatment, the Secretary of State is aware that medical treatment is always available at the Accident and Emergency Department of any hospital. In the light of the above, the Secretary of State does not therefore consider on the information available to him that his decision to refuse support will engage a breach of article 3.

In relation to other support, you client says there are no charities available to help him but provides no information as to what steps he has taken to identify other support.

To conclude therefore, the Secretary of State has considered his original decision….and has also considered the further representations made in your letter of 21 May. He does not accept that your client arrived the United Kingdom when he says he did and, even if he did, he does not accept that he claimed asylum as soon as practicable thereafter. He has also considered whether support should be given to your client in order to avoid a breach his Convention rights and he has concluded that it should not. However, if he is able to provide further information about his alleged medical condition or if his situation otherwise changes the Secretary of State is always prepared to consider the matter afresh.”

S’s anticipated eviction occurred on 17 June, on which date his solicitors sent a letter before action to NASS requesting reconsideration. It referred to homelessness and total destitution. I shall return to the evidence of this later. S attended Charring Cross hospital on the evening of 23 June. He was seen in Accident and Emergency for a non-specific abdominal pain. A handwritten report from a hospital doctor refers to S’s current homelessness and to his not eating well, together with a swelling on the left side of his neck “which he should see his GP about”. S’s application for judicial review was filed on 19 June. By a letter dated 11 July a Home Office official referred to the previous decision letter of 12 June. By then it had been observed that the references in the letter of 12 June to “abdominal pain and anorexia and weight loss” were not references to terms that had been used in the medical report which was under consideration. That had referred simply to weight loss. The letter of 11 July is in form a reconsideration because it states:

“In the circumstances and for the sake of clarity I have reviewed again (the medical) report and can confirm that the Secretary of State remains of the view that the evidence submitted was not sufficient so as to establish a breach of Article 3.”

Although S was refused permission to apply for judicial review following a paper consideration on 19 June, he was granted permission at an oral hearing before Mr. Justice Richards on 27 June and has been the beneficiary of interim relief ever since.

D is from Ethiopia. He entered the United Kingdom on 28 May 2003, arriving by air at Heathrow in the evening. He applied for asylum on 29 May at the Asylum Screening Unit in Croydon. He was refused asylum support by the Secretary of State in a letter dated 5 June. It was in the following terms:

“On the basis of the available evidence that you have provided, including all the information you gave during your interview at the Asylum Screening Unit, the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

You had the opportunity to claim asylum at the airport but you failed to do so. The Secretary of State is not satisfied by your account of an agent telling you just to follow him. He does not consider this to be an adequate reason for not claiming asylum on arrival at the airport. The Secretary of State noted that when asked if you were aware that you could apply for asylum from an immigration officer at the port you said you did not know. When asked why you did not ask how to apply you said the agent told you to follow him. The Secretary of State has noted by your own admission you came to the United Kingdom specifically to seek asylum and therefore he considers that it would be reasonable to expect you to have ascertained pertinent information concerning your intention to seek international protection before travelling to the United Kingdom. He considers that you could and should have claimed at the earliest possible opportunity, namely immigration control on arrival in the United Kingdom. The importance of claiming asylum at the airport of entry in the United Kingdom is well advertised….

Although the Secretary of State accepts that a genuine asylum applicant may find it necessary to use deception to facilitate departure from his or her own country, you entered the United Kingdom illegally. You made no attempt to bring yourself to the attention of the authorities and only claimed asylum after you had entered the United Kingdom. This further enhances the Secretary of State’s opinion that you did not claim asylum as soon as reasonably practicable after your arrival in the United Kingdom.

The Secretary of State is attentive to the fact that you did not know the details contained on the passport you used to gain entry into the United Kingdom. The Secretary of State considers it inconceivable that you would assume an identity and not know the details, particularly, as this could increase the likelihood of you and the agent being detected by the airport authorities. Therefore he concludes that you have calculatingly failed to provide this information in order to prevent him from establishing your true date of arrival in the United Kingdom.

In addition you stated that the immigration officer did ask you questions but you were given instructions by the agent and the agent replied on your behalf. The Secretary of State does not believe that this is true as he is fully aware of the procedure at immigration control and an immigration officer would not accept the scenario where a fellow passenger would answer on someone’s behalf.”

On 30 May D had gone to the Refugee Council. The Council arranged for him to have accommodation in a hostel where he remained until 16 June. On 16 June the Refugee Council and solicitors made further representations on D’s behalf on the basis that he would now be sleeping rough without means of support. On 25 June the Hammersmith and Fulham Community Law Centre corresponded with the Treasury Solicitor and enclosed the earlier documents of 16 June. The application for permission to apply for judicial review was lodged later on 24 June. On 25 June the Treasury Solicitor responded stating an intention to advise the Secretary of State to stand by his decision letter of 5 June. On 25 June Mr. Justice Davis adjourned the application for permission into court for an oral hearing and at the same time made an order providing for interim accommodation and support. On 27 June, Mr. Justice Richards granted permission and continued the interim relief.

T

T is a national of Malaysia. He entered the United Kingdom on 4 March 2003 arriving by air into Heathrow. He applied for asylum on 10 March 2003 at the Asylum Screening Unit. His application for asylum support was refused by the Secretary of State in a letter dated 7 April 2003, the material parts of which state:

“On the basis of the available evidence that you have provided, including all the information you gave during interview at Croydon Asylum Screening Unit, the Secretary of State is not satisfied that you made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

You had the opportunity to claim asylum at the airport but you failed to do so. You claimed that you told the immigration officer that you were coming to the United Kingdom as a tourist for the duration of two and half weeks. The Secretary of State takes the view that you had ample opportunity to claim asylum at this point. He considers that your failure to do so casts considerable doubt upon the credibility of your account. Furthermore, you stated that you had been planning for two years to come to the United Kingdom and seek asylum. Therefore, the Secretary of State does not find it credible that you thought you would be turned away without having your asylum claim heard, having spent a considerable length of time planning your trip to the United Kingdom.

In addition you also claimed that you attempted to visit the Canadian Embassy on 5 and 6 March 2003 in order to secure a visa to Canada so that you could claim asylum there. The Secretary of State is satisfied that claiming asylum within a practicable time was therefore not your sole essential priority.

You claim that after you had passed through immigration control, you slept at the airport from 4 March until the morning of 10 March. The Secretary of State does not find your account plausible. He is of the opinion that, had this been the case, the police or security officers would have moved you for languishing at the airport in a destitute fashion. With regards to your alleged attempt at going to the Canadian Embassy, he finds your account contradictory as you claim that you were in the airport between the dates 4 to 10 March 2003. Therefore he does not accept your account to be true.

You also stated during interview at the Asylum Screening Unit in Croydon, that you did not see any posters informing you to claim asylum at the airport. However you later claimed that you were intent on claiming asylum in ‘the city’ due to alleged complexities of your asylum case. The Secretary of State is led to believe, therefore, that you never had any intentions of claiming asylum at the airport.

In the light of all the above, the Secretary of State cannot be satisfied that you have made your asylum claim as soon as reasonably practicable after your arrival in the United Kingdom.

The Secretary of States notes that you do have access to limited funds and is therefore satisfied that you have a means of support available to you. ”

From 10 March T had been provided with temporary accommodation where he remained until 15 April. According to T he slept and lived in Terminal 2 at Heathrow from 18 April and was still there at the time of his witness statement dated 30 April. Although the chronology is not entirely clear, it is apparent that from 24 April the Treasury Solicitor was indicating that, whereas the decision of 7 April stood, there was a without prejudice offer of accommodation for seven days to allow the Secretary of State to form a view as to the merits of reconsidering T’s case. The Treasury Solicitor wrote a further letter to like effect on 9 May. It stated that the offer of accommodation was made on a pragmatic basis “to avert the costs incurred by the application to court for an injunction”. T’s application for permission to apply for judicial review was lodged on 13 May. On 15 May Mr. Justice Owen made an interim order that the Secretary of State do provide T with accommodation, food and other necessities. On 16 June Mr. Justice Stanley Burnton continued interim relief and ordered an oral hearing of the application for permission. On 4 July Mr. Justice Silber granted permission.

In each of the three cases the grounds of challenge fall under two headings. First, there is a challenge to the decision of the Secretary of State that he is not satisfied that the claim for asylum was made as soon as reasonably practicable after arrival in the United Kingdom. This ground of challenge therefore centres upon section 55 (1). Secondly, it is alleged that, even if the particular claimant did not make his claim for asylum “as soon as reasonably practicable after….arrival in the United Kingdom”, the continuing refusal of the Secretary of State to relieve him of the consequences of destitution amounts to a breach of Article 3 of the ECHR.

Before turning to the present case, it is instructive to refer to the decision of the court of appeal in Q. The court held (paragraph 26):

“……the primary object of S 55 can properly be treated as preventing (1) those who are not genuine asylum seekers and (2) those who are not in fact in need of state support from obtaining assistance. The section assumes that genuine asylum seekers can be expected to seek asylum on arriving in this country, not to go off and do something else before seeking support. Furthermore, those who do not claim asylum and support on arrival, but do so later, will ordinarily have demonstrated an ability to subsist without support in the interim. Section 55 is designed to ensure that the circumstances in which support is sought will be circumstances in which support is likely to be needed.”

The Court expressed the test of reasonable practicability in these terms (paragraph 37) :

“On the premise that the purpose of coming to this country was to claim asylum and having regard both to the practicable opportunity for claiming asylum and to the asylum seeker’s personal circumstances, could the asylum seeker reasonably have been expected to claim asylum earlier than he or she did?”

One of the matters specifically addressed by the Court of Appeal in Q was the possible relevance of agents or facilitators Thus, it stated (at paragraphs 40 and 42):

“It is also clear that some asylum seekers are so much under the influence of the agents who are shepherding them into the country that they cannot be criticised for accepting implicitly what they are told by them. There is no valid comparison between agents of this kind, whose interests at the point of entry may well be in serious conflict with those of the asylum seekers, and professional advisors. To disregard the effect that they may have on their charges would be both unrealistic and unjust…..

…..When deciding whether an asylum seeker claimed asylum as soon as reasonably practicable, it is right to have regard to the effect of anything that the asylum seeker may have been told by his or her facilitator.”

The Court also referred to steps that were taken by the Home Office to draw to the attention of passengers arriving at airports that asylum must be claimed as soon as reasonably practicable. The Court stated (paragraph 41):

“Notices to this effect have been posted in a variety of languages. These steps, and possibly others, will make it increasingly difficult for an asylum seeker to claim ignorance of the requirement to claim asylum at the airport. There is a conflict of evidence, and the evidence continued to proliferate during the hearing before us, as to how easily an asylum seeker can pass through immigration without being subject to any questions. We cannot resolve that issue, but if evidence advanced on behalf of the Respondents is correct, there is scope for the immigration service to tighten entry formalities. It seems to us that it is likely to become increasingly difficult for asylum seekers to allege, credibly, that they have been led to believe that asylum cannot or should not be claimed at the airport. At the same time the risks posed by section 55 to those who do not claim at the airport are likely to become more widely appreciated.”

And (paragraph 42):

“When appropriate procedures are in place, we consider that it will be very difficult for an asylum seeker who is not very recently arrived to discharge the burden of proving that it was not reasonably practicable for him or her to claim asylum any earlier.”

Other parts of the judgment of the Court of Appeal in Q are concerned with “appropriate procedures”. It was for the Secretary of State to lay down a fair system and operate it fairly. The summarised conclusion of the court was (paragraph 119 (xii)):

“The system was not fair or fairly operated. In essence: (a) the purpose of the interview was not explained to the applicant in clear terms; (b) the case workers were not properly directed as to the relevant test, …..;(c) the Secretary of State should have had regard to the applicant’s state of mind on arrival; (d) fairness required the interviewer to try to ascertain the precise reason that the applicant did not claim asylum on arrival, which called for interviewing skills and a more flexible approach than simply completing a standard form of questionnaire. The questions to ask will vary from case to case and be a matter for the interviewer; (e) since it is likely that the credibility of the individual applicant will or may be important, it is desirable that the interviewer and the decision maker should be the same person (which we understand is to happen in the future); (f) where the decision maker concludes that the applicant is not telling the truth the applicant should be given the opportunity of rebutting the suggestion of incredibility and explaining himself if he can; (g)the system which has operated to date does not provide that opportunity.”

There is no doubt that the Secretary of State has taken steps to address the aspects of procedural unfairness which were identified in Q. This was recognised by the Court of Appeal in the recent case of R (D and H) v. Secretary of State for the Home Department [2003] EWCA Civ 852. That case came before the Court of Appeal as an application for permission to appeal a decision of Mr. Justice Newman refusing permission to apply for judicial review. Lord Justice Laws (with whom Lady Justice Hale and Lord Justice Mantell agreed) referred to Q in some detail before adding (paragraph 14):

“As I understand it, all these matters have essentially been addressed by the Secretary of State since Q was decided and before the decision letters were written and, indeed, the interviews held in the present case.”

He observed that the interviewing officer and the decision maker had been assimilated and that the forms used and the methods deployed in interview had been adapted. Turning to the question of agents or facilitators. Lord Justice Laws said (at paragraph 18) :

“Here, as it seems to me, there was no evidence emanating from the interviews to suggest that the applicants were in any way discouraged, far less forbidden, from seeking asylum at the airport. I consider that Mr. Justice Newman’s conclusions relating to the part played by the agent were well justified and there is nothing in the suggestion that the Secretary of State should have, but failed to, address some distinct question whether the applicants might have been influenced by the conduct of the agent, short of duress.”

In a passage dealing with notices, Lord Justices Laws said (at paragraph 23):

“It seems to me that if the Secretary of State is going to proceed on the footing that in the ordinary way (subject, no doubt, to any special facts) an applicant must make his claim at the airport or other point of entry if he is not to fall foul of section 55 (1)(b), the need to do so must be sufficiently well advertised that in the ordinary way the traveller arriving at the airport will see the poster. I think that can properly be done by notices of this kind, as indeed was contemplated by this court itself in Q. Of course it must always be remembered that every case has to examined on its own facts”

Finally, Lord Justice Laws commented (paragraph 26):

“I will add this. This application is, I think, affected by this vice: it seeks to deploy this court’s decision in Q as a platform to justify a form of judicial review in cases like this which really amounts to an appeal on fact. There is, with respect, nothing in Q to vouchsafe anything like such an approach; quite the contrary. It seems to me to be clear, as I have said, that the important issues relating to section 55 which were addressed by this court in Q and the guidance there given by this court have in principle been confronted and accepted by the Secretary of State. In those circumstances, absent a true point based on irrationality or no evidence, it is very difficult to see what proper scope there is for a judicial review in a case such as this. I am clear that there is none in this application.”

There has been some respectful debate before me as to the status of the decision in D and H. It seems to me that, as a decision on an application for permission to appeal, it is persuasive rather than binding: see Clark v. University of Lincolnshire and Humberside [2000] 1 WLR 1988 at para 33 (per Lord Woolf MR). It was undoubtedly appropriate for Miss Rahman to seek to rely on D and H, following Lord Justice Law’s grant of permission to refer to it. In view of the fact that it was decided by a three judge constitution following adversarial argument, it should no doubt be viewed as persuasive authority of considerable weight. As Miss Rahman says, it is quite likely that if the court had granted permission they would have proceeded to deal with the matter substantively and have given judgment in precisely the same terms. Mr. Knafler does not dissent from this. His submission is that, as the judgment of Lord Justice Laws itself states, “every case has to be examined on its own facts” and the evidence in the present cases is different. Moreover, “the amplitude of modern judicial review” is what prevents section 55 from falling foul of article 6 of the ECHR (See Q, paragraph 115). Each application then has to be considered on the basis of the evidence and material before the court.

In these cases the representatives of the claimants have compiled a large amount of evidence from individuals and non-governmental organisations, dealing with the problem in a generalised way rather than fact - specifically. The contributors include people from ethnic minority communities and professionals in the field. This evidence supports the following propositions. (1) Many refugees know little or nothing about asylum procedures before arriving in this country (indeed, there is some support for this proposition in Home Office Research Study 243, Understanding the Decision Making ofAsylum Seekers, July 2002). (2) Many asylum seekers obtain and rely on oral information from individuals known to or trusted by them rather than upon written information. Indeed, many are illiterate. (3) Most asylum seekers who use an agent or facilitator depend completely on that person’s advice and follow his lead. He deals with everything. (4) It is common for asylum seekers not to know the details of the identity in their travel documents. (5) It is common for immigration officers not to ask any questions at all or to ask only the agent or facilitator at passport control. (6) It is commonplace for a person with a forged, stolen or purchased British or EU passport to pass through UK immigration control at an airport without being questioned by an immigration officer. (7) Many asylum seekers have no previous experience of aeroplanes, airports, passports, official documents or procedures. (8) Many simply do not understand the concept of claiming asylum as soon as reasonably practicable. (9) It is very common for an asylum seeker, upon arrival at a UK airport, not to see the notices of posters which refer to the need to claim asylum as soon as reasonably practicable. This is partly because of the number, location, size and format of the notices and partly because of the circumstances in which asylum seekers arrive.

As to this latter point, I have been provided with photographic and video evidence of the posters in question at Heathrow. That evidence disposes me to the view that it is quite likely (to put it at its lowest) that a newly arrived asylum seeker would not see or digest these notices in their present form and locations.

I now turn to the evidence in the individual cases.

(1) S

Although there is force in Mr. Knafler’s first submission about the “generic” paragraphs, they do not stand alone. In S’s case there were reasoned findings about the passport, the inability to name the airline and the four weeks with the stranger which led to the conclusion that the Secretary of State was not satisfied under section 55(1). In my judgment, Mr. Knafler’s submissions on section 55(1) can only succeed if he can establish that the individualised findings are irrational or otherwise flawed. He makes some powerful points about the way in which the answers in relation to the passport emerge and the fact that S was being interviewed some two months after he had arrived in this country in circumstances wherein in the meantime he had been of no fixed abode or sleeping rough and had descended into poor health. He refers to S’s lack of education and travel experience. He also complains that on 8 January S had named the total stranger as “Idris Nur” and that, if the Secretary of State had wished to investigate such a person’s address he could have done so at that time.

Notwithstanding these submissions, in my judgment it has not been established that the Secretary of State reached an irrational or otherwise flawed decision under section 55(1) in relation to S. It was open to the Secretary of State to conclude as he did on the basis of the evidence about the passport, the airline and the total stranger. On this basis the conclusion of a fabricated account to conceal a different date of arrival in the United Kingdom was a permissible one. Looked at in the round, it was consistent with the approach required by Q even though some of the generic reasoning merits criticism.

In relation to D, Mr. Knafler advances the corresponding submission about the generic parts of the decision letter of 5 June. In fairness, however, it should be interpolated that those parts do contain at least some individualised points – for example, it is twice recorded that the agent told D “just to follow him”. The letter also refers to D’s admission that he had come to the United Kingdom specifically to seek asylum. This led the Secretary of State to consider that it would be reasonable to expect D to have ascertained pertinent information before travelling. The later paragraphs attach significance to the fact that D did not know the details contained in the passport used to gain entry into the United Kingdom. The Secretary of State considered it “inconceivable” that D would assume an identity and not know the details “particularly, as this could increase the likelihood of you and the agent being detected by the airport authorities”. Moreover the Secretary of State did not believe D’s statement to the effect that his agent had replied to questions from the immigration officer on his behalf because “an immigration officer would not accept the scenario where a fellow passenger would answer on someone’s behalf”.

Mr, Knafler makes a number of submissions about this reasoning. Essentially, they are to the effect that D’s account is manifestly capable of belief. He contends that the Secretary of State has come to an impermissible conclusion on the basis of unwarranted assumptions of a generic kind and has failed to have proper regard to D’s subjective state of mind. Adverse credibility findings were made simply because D’s actions did not conform to the Secretary of State’s view of credible, normal and reasonable behaviour.

In my judgment there is force in these submissions. It is implicit in Q that there can be cases in which an asylum seeker is genuinely and reasonably ignorant of the procedure. Similarly, there can be cases where an applicant is reliant to a very substantial extent upon an agent. Moreover, the assertion that the importance of claiming asylum at the airport is “well advertised” is not borne out by the photographic and video evidence in this case. No doubt the material is seen by some but I do not accept that it is seen by all. I have already referred to the shortcomings of the posters or notices. Their location and format, as Miss Rahman submits is a matter for the Secretary of State. However, if there is evidence that they are neither numerous nor conspicuous (as, in my judgment there is) there are considerable limitations upon the extent to which reliance can be placed on them. D’s statement in interview was that he had not seen them and he had been scared and frightened at the time. He was not challenged on that point. Next, there is the adverse inference drawn from the fact that the D entered the United Kingdom illegally. That is a very common occurrence, as is well known and as is borne out by the evidence in this case. As Mr. Knafler submits, reliance upon it is suggestive of an approach which mistakenly construes section 55(1) as if the test were “as soon as possible”.

Turning to the more individualised findings, Mr. Knafler is critical of the conclusion that it is “inconceivable” that D did not know the details contained in the passport on which he was travelling. However, D’s account was that he never had a chance to examine the passport so as to see whether it was in his own name or someone else’s. It was only given to him by the agent when they reached immigration. Although he said that he believed it was in his own name, he was not asked about the basis of that belief – for example, whether it was what he had been told by the agent. There is no evidence in this case as to whether the Secretary of State checked to see whether there had been a passenger with D’s name on an Ethiopian airline on 28 May. Finally, Mr. Knafler submits that the adverse finding in relation to the agent having answered the immigration officers questions on D’s behalf was again based on generic preconception rather than a consideration of D’s individual case.

Where does all this lead? Clearly the immigration officer who interviewed D and who, in accordance with Q, made the decision was not satisfied that D had arrived on 28 May as he asserted. Was that a rational conclusion based on a fair procedure? In my judgment, it was not. It was based on preconceptions about how asylum seekers and agents act, rather than upon an individualised assessment of D. The parts of the letter dealing with advertisement and illegal entry cannot be justified. The part dealing with the possession of information as between D and the agent does not live easily with what was said about agents in Q. The Court of Appeal’s reference to “influence” and “shepherding” is not synonymous with duress. As the court stated, “it is right to have regard to the effect of anything that the asylum seeker may have been told by his or her facilitator”. This is not a case like D and H in which there was not even a suggestion that the applicants had been discouraged from seeking asylum at the airport. On any basis, this is a far more compelling case than D and H. In my judgment, the decision on section 55 (1) is flawed and must be quashed.

T

I do not propose to dwell on T’s case in relation to section 55(1). Even if there were shortcomings in T’s interview, I consider it inevitable that any reasonable immigration officer would have concluded on proper grounds that T did not make his application as soon as reasonable practicable after his arrival in the United Kingdom. That inevitability arises from the specific and individualised findings in the letter of 7 April which were soundly based on the evidence. I do not consider that T’s unusual personality and history avail him in relation to this aspect of the case.

Where an asylum seeker does not make his application “as soon as reasonably practicable after….arrival” within the meaning of section 55(1), he may nevertheless be able to rely on section 55(5) which provides:

“This section shall not prevent – (a) the exercise of a power by the Secretary of State to the extent necessary for the purpose of avoiding a breach of a person’s Convention rights (within the meaning of the Human Rights Act 1998), (b) the provision of support under section 95 of the Immigration and Asylum Act 1999 or section 17 of this Act in accordance with section 122 of that Act (children), or (c) the provision of support under section 98 of the Immigration and Asylum Act 1999 or section 24 of this Act (provisional support) to a person under the age of 18 and the household of which he forms part.”

In the present case, the claimants rely on section 55(5)(a) and the Convention right enshrined in Article 3 which states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The reliance here is upon “inhuman or degrading treatment”. The relationship between section 55 and Article 3 arose in Q where the Court of Appeal concluded (at paragraph 119, summarising paragraphs 44-63):

“(iii)

If the Secretary of State is not so satisfied [under section 55 (1)], it remains open to the applicant to claim support on the basis that it is necessary for the purpose of avoiding a breach of his or her Convention rights under Article 3….

(iv)

The burden of satisfying the Secretary of State that such support is necessary is on the applicant. Under Article 3 the applicant must satisfy the Secretary of State that such support is necessary to avoid his or her being subjected to ‘inhuman or degrading treatment’. The threshold is a high one.

(v)

The regime imposed on asylum-seekers who are denied support by reason of section 55(1) constitutes ‘treatment’ within Article 3 because, although treatment implies something more than passivity on the part of the state, there is here more than passivity. Asylum-seekers cannot lawfully be removed but, while they remain, which they must do if they are to press their claims, they cannot lawfully work unless the Secretary of State gives them special permission to do so.

(vi)

The threshold is a high one but the European Court of Human Rights said in para 52 of its judgment in Pretty v. UK [2002] 2 FCR 97 at 131:

“As regards the types of ‘treatment’ which fall within the scope of art. 3 of the Convention, the Court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of art. 3. The suffering which flows from naturally occurring illness, physical or mental, may be treatment, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’

(vii)

Where the condition of an applicant verges on that described in Pretty v. UK, s. 55(5) permits and s. 6 of the 1998 Act obliges the Secretary of State to arrange for the provision of support.

(viii)

We do not agree with Collins J that the fact that there is a ‘real risk’ that an asylum-seeker will be reduced to this state of degradation of itself engages art. 3. It is not unlawful for the Secretary of State to decline to provide support unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself such that his condition verges on the degree of severity described in Pretty v. UK.”

In his submissions on Article 3, Mr. Knafler necessarily takes Q as his starting point. He then unpicks the passage from Pretty and reformulates it into ten different ways in which treatment may involve a breach of Article 3, namely where it involves actual bodily injury or intense physical suffering (but less than bodily injury) or intense mental suffering; where it humiliates an individual, showing a lack of respect for his human dignity or diminishing his human dignity; where it debases an individual in the same ways; or where it arouses feelings of fear capable of breaking an individual’s moral and physical resistance, or feelings of anguish or inferiority to like effect. The purpose of this exercise in deconstruction is to illustrate that the consequences of the treatment are not limited to physical injury or illness and to emphasise the importance, in the context of Article 3, of respect for human dignity. Mr. Knafler then fortifies this submission by reference to a recent dictum of Lord Hoffman in Matthews v. Ministry of Defence [2003] UKHL 4, paragraph 26:

“Human rights are the rights essential to the life and dignity of the individual in a democratic society. The exact limits of such rights are debateable and, although there is not much trace of economic rights in the 50 – year old Convention, I think it is well arguable that human rights include a right to a minimum standard of living, without which many of the other rights would be a mockery.”

He also submits that the approach for which he contends is supported by a passage in the judgment of Mr Justice Munby in R (A and others) v. East Sussex County Council [2003] EWHC 167 (Admin) at paragraphs 86-87:

“True it is that the phrase [human dignity] is not used in the Convention but it is surely immanent in article 8, indeed in almost every one of the Convention’s provisions. The recognition and protection of human dignity is one of the core values – in truth the core value – of our society and, indeed, of all the societies which are part of the European family of nations and which have embraced the principles of the Convention……

Dignity interests are also, of course, at the core of the rights protected by Article 3. Whether a particular set of circumstances constitutes ‘inhuman or degrading treatment’ is a matter of fact and degree.”

Adopting this approach to “inhuman and degrading treatment”, Mr. Knafler identifies the factual matrix into which he seeks to place these claimants. Its hallmark is destitution, not in the sense in which that term is used in section 95 of the Immigration and Asylum Act 1999 (“statutory destitution”) but in the sense which has been recognised in the common law at least since R v. Inhabitants of Eastbourne (1803) 4 East 103 and which was best encapsulated in the words of Simon Brown LJ in R v. Secretary of State for Social Security, ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 292:

“a life so destitute that to my mind no civilised nation can tolerate it.”

It is characterised by sleeping rough, begging for food or money with which to buy it and the fear, humiliation and physical and mental suffering which soon ensue. Mr. Knafler accepts that, in line with Q, a risk of these consequences is not enough to found a breach of Article 3 and that he has to establish that the destitution “verges on” the states described in Pretty. However, he submits that that hurdle is surmounted in this case. He points to the fact that in Q the Court of Appeal accepted that to be driven to resort to crime or prostitution in order to survive would or could found a breach of Article 3. If those who succumb to that temptation may invoke Article 3, it would be iniquitous if others, whose moral scruples cause them to undergo greater personal suffering instead, were to be excluded from the protection. In the event, begging soon brings the beggar into conflict with the provisions of the Vagrancy Act 1824, sections 3, 4 and 5.

Finally, Mr. Knafler seeks to assimilate the wording of section 55(5)(a) – “necessary for the purpose of preventing a breach” of Convention rights, the Court of Appeal’s temporal test of “verging on” and the principle of Convention law which requires “effective protection”, as to which see E v. United Kingdom (2003) 36 EHRR 31, at paragraph 88:

“……measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge.”

These are formidable submissions. What is the response on behalf of the Secretary of State? First, Miss Rahman relies on the burden of proof and the standard of proof, which she contends is “beyond reasonable doubt”, relying on a statement to that effect in Blackstone’s Human Rights Digest, p.21. Secondly, she submits that mere homelessness in itself is insufficient to amount to inhuman and degrading treatment. In O’Rourke v. United Kingdom (application 39022/97, an admissibility decision dated 26 June 2001) the Strasbourg Court declared inadmissible the complaint of an ex-prisoner who was living on the street for well over a year, to the detriment of his health, following his eviction from hotel accommodation which had been provided by the local authority. The Court stated:

“The Court does not consider that the applicant’s suffering following his eviction attained the requisite level of severity to engage Article 3. Even if it had done, the Court notes that the applicant failed to attend a night shelter pending a decision on permanent housing, contrary to the advice he was given by [the local authority] following his eviction. He also indicated an unwillingness to accept temporary accommodation and refused two specific offers of accommodation prior to his acceptance of temporary accommodation in June 1992. The applicant was therefore largely responsible for his own deterioration following his eviction.”

In Q the Court of Appeal referred to O’Rourke as an illustration of the proposition that the degree of destitution that must be demonstrated to engage Article 3 falls significantly below that of “statutory destitution” and as an illustration of the requisite degree of severity. Miss Rahman suggests O’Rourke and Q, taken together, show that in order to succeed in relation to Article 3 an applicant must produce cogent medical evidence of ill-health or some similarly severe adverse consequence, for example being on the verge of resort to crime or prostitution. Thirdly, she seeks to make a temporal point, submitting that the obligation of the Secretary of State is to step in to provide support “at the point at which not to do so would result in treatment contrary to Article 3” and that the timing of applications for judicial review “must not be anticipatory”. Indeed, she goes so far as to submit that where interim relief is ordered by the court, it is difficult to show that the Secretary of State is obliged to intervene to prevent a breach of Article 3. Fourthly, she submits that this case is an attempt to relitigate issues that were resolved in Q.

I shall proceed on the assumption that Miss Rahman is correct about the standard of proof as Mr. Knafler did not take issue with her submission. At the same time, I record my doubt that proof on a balance of probabilities that the minimum level of severity has been established and has been caused by the requisite treatment or punishment is not enough. So far as O’Rourke is concerned, it was on its facts, a most unmeritorious case. I am unpersuaded by Miss Rahman’s temporal point. Whilst it is true that it is the obligation of the Secretary of State to intervene when not to do so would result in treatment contrary to Article 3, the Q test of “verging on” connotes a degree of anticipation or, at least, a very fine temporal line. Moreover, section 55(5) is concerned with “avoiding” breaches of Convention rights. The suggestion that interim relief provides an obstacle to a claim based on Article 3 is, in my judgment, bizarre and distasteful. Moreover, I do not accept that the present cases are an attempt to relitigate issues that were resolved in Q. On the contrary, they seek to apply the principles set out in Q, albeit with a shift in emphasis from within the same passage in Pretty and with some assistance from Lord Hofman and Mr. Justice Munby. So far as the law is concerned, I accept Mr. Knafler’s submissions and adopt them. I therefore turn to the facts of these cases.

S

At the time of his interview on 12 May S was in good general health. However he had no friends or family, no resources and had been sleeping rough for about a month and begging before being provided with interim support. At the time of the decision letter of 12 May, the charity Migrant Helpline continued to provide S with accommodation. It was the charity that procured the medical report dated 20 May 2003. I have already referred to its terms. It referred to S being underweight and malnourished and predicted that his weight would decline further following the withdrawal of support and accommodation and it would then be highly likely that he would develop some physical consequences from such a malnourished state. The letter also referred to “considerable psychological disturbance” relating to the circumstances from which S had left Somalia and “the uncertainty of his life in England”. I have related how the response of the Secretary of State dated 12 June appears to relate to a different medical report in relation to a different person. By mid June S no longer had the benefit of charitable accommodation or assistance. He began to sleep rough. On 17 June his solicitors wrote to the Secretary of State describing the lack of charitable assistance and the need to sleep rough. No reply was received. Following the initial refusal of interim relief on 19 June S became upset. He continued to sleep rough and spent large amounts of time in his solicitor’s office. His solicitor observed his gaunt and exhausted appearance and his complaints of stomach pains and eventual refusal of food. S slept rough for some nine days before he successfully applied for interim relief. During that time he begged for food but received very little. He became exhausted and suffered abdominal pain. He went for substantial periods with no food at all. He continued to lose weight and developed a swelling on his neck. Social Services provided him with shelter for one night at the request of a hospital doctor who provided the report of 23 June to which I have previously referred. His begging for food and accommodation was largely unsuccessful and the disruption of his eating habits rendered him unable to eat more than a small amount of food at a time. On 24 June his solicitors made further representations as to his deteriorating condition and they received no reply. Soon afterwards they served evidence substantiating their earlier assertion that S no longer had charitable support. On 11 July, the Secretary of State sent a letter to the effect that the evidence submitted was not sufficient to establish a breach of Article 3.

In my judgment it was clear beyond all doubt that S had no access to charitable support and could not fend for himself from mid June. Indeed, he had been forced to beg for food for a considerable time before that and the medical report of 20 May provided evidence of psychological disturbance and significant weight loss at that time. His condition was verging on the degree of severity described in Pretty at the time when he commenced these proceedings. To refuse or fail to provide him with support at that stage debased him and diminished his human dignity in the manner described in Pretty. His is a state of destitution which, to use the words of Q, “results in ill health or some other similarly severe adverse consequence”. Although he failed under section 55(1) his application for judicial review by reference to Article 3 must succeed.

D

Although D has succeeded in his section 55(1) case, I shall also consider his case under Article 3. At the time of interview on 3 June, D was in good general health but he had no financial or other resources and no family or friends to whom he could turn. D had the benefit of the accommodation provided by the Refugee Council until 16 June but the Secretary of State ceased to support this at that time. From 17 June D was without accommodation or food and he slept rough except for two nights when he was taken in by an overcrowded family of fellow Ethiopian asylum seekers. On 17 June the Refugee Council wrote inviting the Secretary of State to reconsider the original decision and notified him that D would be sleeping rough from that night with no means of support and no contacts who would be able to provide him with assistance. No reply was received. His evidence about the ensuing period is that he felt weak, hungry and frightened. He was tearful, depressed and worried about his health. He felt humiliated about having to beg for food. Within days he experienced headaches and dizziness and eating such food as he was able to obtain made him feel sick. He had to defecate in parks. There was blood in his urine. He felt helpless and hopeless with pains in his stomach. He felt sick and weak. He lodged his application on 25 June and was granted an order for interim accommodation and support the same day. Accordingly, his period of destitution and homelessness lasted for about nine days. I accept his evidence about it. There is no reason not to. The question then arises as to whether his condition was verging on that described in Pretty. I am satisfied that by the time proceedings were commenced, if not before, charitable support had become unavailable and D was incapable of fending for himself such that his condition was verging on the degree of severity described in Pretty. The refusal of support was debasing him and showing a lack of respect for his human dignity with the consequences referred to in Pretty. In my judgment, he has established a breach of Article 3.

T

In T’s case I ignore the period between 4 March and 10 March during which time any privation was substantially self inflicted. He was then accommodated by NASS until 15 April. Apart from some unsuccessful attempts to plead for shelter in churches, T then “lived” at Heathrow until the Secretary of State provided him with accommodation on a without prejudice basis on 24 April. On 9 May the Secretary of State confirmed that he stood by his original decision to refuse support. T commenced proceedings on 13 May and obtained interim relief by order of Mr. Justice Owen two days later.

T’s Article 3 claim is based on his circumstances when “living” at Heathrow. He found it difficult to rest or sleep because of the noise and light and because he would be moved on by the police. Any ablutions were confined to public lavatories and he was unable to wash his hair or his clothes or to bathe or shower. He developed a problem with his left eye and also a cough. He carried his belongings around with him in holdalls and became increasingly worried. When T’s solicitors wrote to the Treasury Solicitor on 23 April they stated that T had been sleeping rough at Heathrow since 15 April. They referred to difficulties there and to T’s health being affected. They referred to his becoming increasingly demoralised and humiliated. They also referred to his fear of sleeping on the streets lest he might be attacked and have his papers stolen. Notwithstanding his unusual personality and history, I see no reason to doubt his factual account of his life since he came to this country. In his case, too, I find that he has no access to charitable support and is incapable of fending for himself. I am satisfied that his condition verges on the degree of severity described in Pretty. The refusal or withdrawal of support is debasing him and is showing a lack of respect for his human dignity with the consequences referred to in Pretty. In my judgment, his application in relation to Article 3 must also succeed.

I have dealt with the three cases under Article 3 by reference to their individual facts and the law as I understand it to be. However, it has been emphasized by both counsel that these are test cases and, in the circumstances, it is appropriate that I should say a little more. It is not inevitable that anyone refused asylum support will be able to rely on Article 3. For one thing, they may have access to private or charitable funds or support such that Article 3 will simply not arise. Some are more resilient or resourceful than others. However, when a person without such access is refused asylum support and must wait for a protracted but indefinite period of time for the determination of his asylum application it will often happen that, denied access to employment and other benefits, he will soon be reduced to a state of destitution (not in the section 95 sense). Without accommodation, food or the means to obtain them, he will have little alternative but to beg or resort to crime. Many, like the claimants in the present case, will have little choice but to beg and sleep rough. In those circumstances and with uncertainty as to the duration of their predicament, the humiliation and diminution of their human dignity with the consequences referred to in Pretty will often follow within a short period of time. If their asylum applications were determined expeditiously, the problem might be easy to contain. However, many are not dealt with expeditiously. By their asylum applications they are brought into a relationship with our public authorities. Our public authorities are obliged to respect their human rights. No one should be surprised if, within a short period of time, the demands of Article 3 require the relief of damage to human dignity which is caused by (to repeat the words of Lord Justice Simon Brown) “a life so destitute that….no civilised nation can tolerate it”. I do not suppose that any reasonable person, including the Secretary of State, views the alternative with equanimity.

It follows from what I have set out in this judgment that, in relation to the section 55(1) claims, D’s application for judicial review succeeds but those of S and T fail. In relation to Article 3, all three succeed. I shall hear counsel further on the question of appropriate relief.