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

MR JUSTICE COLLINS: This claim is one of a significant number that are at present before the Administrative Court, which arise out of section 55 of the Nationality, Immigration and Asylum Act 2002. That is the section which requires the Secretary of State to refuse to provide support for asylum seekers who have not made their claim as soon as reasonably practicable, but contains what may be regarded as a proviso in section 55(5) whereby support should be provided if to refuse it would constitute a breach of the individual's human rights.

It was asserted that there was a failure to comply with section 55(1) as well as section 55(5), but permission was granted only on the section 55(5) claim. Accordingly, I have not had to consider the circumstances whereby the claimant made his claim for asylum in any detail at all.

He is a 23 year-old Angolan. He says he arrived in the United Kingdom on 6 May 2003 and claimed asylum the next day. After considering the matter, and after an interview for the purpose of deciding whether the claim had been made as soon as reasonably practicable, the defendant determined on 22 July 2003 that support should be refused. That night, and the following night, the claimant spent, he says, sleeping in a park outside a police station in Croydon and he was unable to eat anything during that period because had no money and no means of finding anywhere to provide him with food. He did manage to get in touch, because he was put onto a firm of solicitors, with Migrant Helpline and they arranged that he should find accommodation with a charity in Kennington. This lasted for some four nights, and on the 28th he was sent to his present solicitors, who are dealing with this claim. They took an account from him of what had happened and what his position was and immediately lodged this claim for judicial review. It also included a claim for interim relief.

That came before Eady J, and I assume, since Eady J is not a nominated judge, it must have been made to him as a duty judge out of hours, and he ordered that, pending disposal of the claim or further order, the defendant should provide accommodation and support for the claimant's essential living needs.

In due course, Jackson J gave permission on the section 55(5) ground and, accordingly, the interim relief has continued. The result is that the claimant has only had to sleep rough and been deprived of all support for two nights. The evidence before me is clear that the temporary accommodation and support that he was getting from the charity in Kennington came to an end on the 28th and it is said on his behalf, and I will come in a little more detail in due course to the evidence, that thereafter he would have had nothing and would have been obliged to sleep rough and to beg for food or find other possible means of sustenance.

The solicitor who lodged the application, Mr Tear, made a statement in support, and in it he said this:

He produced a letter from Migrant Helpline, which was dated 20 June 2003, which stated that the only charity able to assist was Shelter, but they had not been able to place anyone with Shelter. What that letter said, so far as material, was this:

The approach that the court has to take to these cases has been considered by the Court of Appeal in two lead cases. The first was R(Q) v Secretary of State [2003] EWCA Civ 364. That was in fact an appeal from a decision of mine. The test that I had applied to the application of Article 3 was whether there was a real risk that there would be a breach, and if there was a real risk, that that was sufficient to grant relief. That, the Court of Appeal said was wrong and the test was more immediate than that. What the court said was that there had to be a condition which verged on the degree of severity capable of engaging Article 3 as described in the case of Pretty v United Kingdom [2002] 35 EHRR 1. The relevant paragraph in Pretty is paragraph 52, and it is worth reciting it. It reads as follows:

The threshold set by that quotation is clearly a relatively high one. Mr Jacobs has submitted that there are two elements. The first is the minimum level of severity involving bodily injury; the second, which, he submitted, was an alternative, was humiliation or debasing of an individual showing a lack of respect for, or diminishing, his or her human dignity. But it is the treatment which must result in that and the treatment must attain the minimum level of severity and must involve, as the court held, intense physical or mental suffering. The use of the adjective "intense" is simply, as I see it, to make the point, and to underline the point, that it must be a physical or mental suffering which is substantial as opposed to perhaps something which, although unpleasant, is no more than that. So that is, and has been laid down by the Court of Appeal to be, the test.

Furthermore, as the court in Q went on to say in paragraph 63:

The court went on to indicate that the Secretary of State must be prepared to entertain further applications from those to whom he had refused support, who had not been able to find any charitable support or any other lawful means of fending for themselves, and I know that the Secretary of State has indicated, and certainly in that case indicated through the Attorney General who appeared on his behalf, that it was always open to asylum seekers who had been refused support to re-apply if circumstances required.

It is not only Article 3 which may be in play; it is also Article 8. Article 8 was considered by the Court of Appeal in Q, but the court decided that there was no real need to consider it at greater length because, in the context of the case of Q, Article 8 added little. It is of course a lesser test than that applicable in Article 3, and to treat someone in such a way as inevitably results in him having to sleep rough and be without the means of support would clearly engage Article 3 and, as it seems to me, would constitute an interference with the rights that are set out in Article 8(1). It would then be necessary to consider proportionality in the context of article 8(2). But it may be, and I will come to consider this shortly, that to treat someone in the way indicated when he had no access to accommodation, no access to support other than highly precarious, would in itself constitute a breach of Article 3.

The effect on the individual is what is important in this context and, as Miss Grange accepted, if someone had, for example, been tortured in the country from which he was coming and was in a state so that treatment of a particular sort bore more heavily upon him, that is a matter which would have to be taken into account and might mean that his human rights, because it is his human rights that are in issue, would be breached.

That is of course also consistent with the approach of the Court of Appeal in the second authority to which I should refer, the case of R(T) v Secretary of State [2003] EWCA Civ 1285. The court was hearing an appeal from a decision of Maurice Kay J (as he then was), who had sought, following Q, to deal with three cases in order to try to give some guidance as to how the factual issues should be considered. The Court of Appeal, having dealt with the general principles, said this at paragraph 14:

They then went on to consider the facts of those two cases before them. S had to beg for money and shelter, and his physical condition had deteriorated. There was a medical report showing that he had lost weight and had abdominal pains and could not eat properly because of having suffered a degree of starvation. He had no access to charitable support and was unable to fend for himself at the relevant time. There was also evidence of psychological disturbance and, as I have said, of significant weight loss.

The court found that it was an inexorable conclusion in that case that S should succeed. But it went on:

T had apparently been in some sort of shelter because he had spent his days, from 18 April until interim relief was obtained some 4 weeks or so later, at Heathrow airport. The conditions were far from ideal but, as the court decided, he had had shelter, sanitary facilities and some money for food. There was evidence that he was not entirely well physically but was not so unwell as to need immediate treatment. They took the view that that meant that his treatment had not verged on the Pretty threshold.

It is worth noting that by using Heathrow as he had, he had in fact been committing a criminal offence in breach of the relevant Byelaws and that he could of course have been evicted from Heathrow at any time, but he had not been. It is also worth noting that there must have been evidence that T had had some money, which is, of course, in any given case a very important factor. It is to be noted that if T had not had the shelter which was provided by Heathrow and had not had the money which might have provided him with the means of obtaining other shelter, different considerations might well have applied. It is perhaps not surprising that the Court of Appeal felt unable to give any further guidance since, inevitably, each case will depend upon its own facts, but it is perhaps important to try, so far as possible, to indicate the sort of material which ought to be available in order to enable a claimant to establish his case, because in T at paragraph 13 the court indicated that it accepted that a claimant must establish his case to the extent that his right to relief is clear.

As I have read from the decision of the Court of Appeal in T, it was indicated that the position had to be judged as at the date that he had received the emergency relief. That is not, in my view, wholly correct. Of course, the situation then is of considerable importance because it will be his experiences and what he had suffered then which will help to determine whether he is, if refused relief now, going to find himself in a situation where he is on the verge of sufficiently severe ill-treatment to breach his Article 3 rights. But I have to look at the situation too as it is now because it is now, if I refuse relief, that he will be without any support, and it will be now that he will be in the situation where, if he has no support and no means of obtaining support, he will have to sleep rough and may have to beg for, and certainly will not easily find, the means of obtaining food and sustenance.

July was the height of the summer and it was a very warm summer. January is the middle of winter, and although this week is somewhat milder, last week was exceedingly cold, and even this week we are told in the forecast that rain and cold are going to be upon us by the weekend. That is clearly a relevant factor because if the evidence shows that he will not be able to obtain shelter overnight, then the fact that he will have to sleep out on a cold winter night is something that can properly be taken into account.

The situation as at 28 July I have already briefly indicated. I should add that he has some degree of ill-health because when he was interviewed by the defendant's officials he said in answer to the question:

It is true that that was not specifically raised in his original statement in support of his claim; nonetheless, it clearly was something which he had mentioned at an early stage. There is up-to-date evidence about his present state of health, which comes from a report from his general practitioner, dated the end of last month. It records that he had been registered as a temporary patient in early September, he had complained of a cough in October and had been prescribed antibiotics, and he had visited the surgery in December when he was complaining of pain in his lower abdomen and testicles, and of dizziness and heart burn, and was prescribed some medicines, including an indigestion remedy.

The defendants have put forward a statement from a general practitioner, who is a medical adviser to the NASS, in which he explains what the treatment involved and asserted that the medical issues did not appear to be of any severity and he considered them minor. He also said that he did not think that they were of relevance to his application to NASS. That, with respect, is not a matter for him, but I take the evidence that the conditions were not of any real severity. However, one must bear in mind that someone who is not entirely fit and who is caused to have to sleep rough, may well worry considerably that that is likely to exacerbate his ill-health and there may well be some psychological effect upon him because of that. I am not saying that, setting myself up as a medical expert. I am, I hope, merely applying common sense. Indeed, the claimant himself, in his most recent statement, dated 30 January, says that when he had to sleep on the streets on 22 and 23 July, he felt traumatised by the experience -- it was "humiliating and degrading". He says he slept outside the police station in Croydon on a bench. He only had a shirt on and asked for a blanket, but the police would not provide him with one. He did not have any money and begged passers-by for food but was given nothing. He says he is in a great deal of pain as a result of his stomach problems and also problems with his testicles. Of course, one bears in mind that the fact that a claimant says he felt humiliated and degraded in that way is not of itself sufficient to indicate that there was a breach of Article 3, but it is something which can properly be taken into account.

The solicitor acting for him has obtained further information about the possibility of obtaining any charitable or other support. There is before me a letter from Migrant Helpline which states that there are no hostels or charities in the Croydon area able to help with accommodation, and that in other parts of London help is mostly limited to food parcels. It is said:

The charitable institution which gave him shelter for the four nights in July has indicated that it is a multi-resort day centre for homeless people, providing a range of support and advice for people in crisis, that the claimant did access their service in July 2003 but that they were a day centre and did not provide accommodation, and that as he had no recourse to public funds, they were unable to access a hostel, and he was told to return to his solicitor.

Threshold Housing Advice, again in January, which covers Hammersmith, Fulham and surrounding postal code areas, indicated that they cannot contact hostels on behalf of destitute clients who cannot claim benefits because the hostels require the possibility of receiving housing benefit, and, of course, a claimant such as this claimant cannot obtain that. That is the material that has been produced.

As against that, the defendant, through a Mr Sullivan, has produced a list of various organisations throughout London who provide some assistance to the homeless and to asylum seekers. It is accepted that there is no Body which provides for overnight accommodation. At best, these places may provide food, ability to change clothes and to wash. I say "may" advisedly, because at best there may be the possibility, if the claimant can get there, of finding some place in London, and possibly in South London, which might produce some degree of food and possibly, as I say, washing facilities for him.

Here, the evidence is that this claimant has made some effort through his solicitors, and the opinion of the solicitor is quite clearly that there is no chance that he will be able to obtain any overnight accommodation and the chances of him being able to obtain other support are very small indeed, and this is a solicitor who is very experienced in dealing with these sorts of cases. That is the claim that is put forward.

It is, in my judgment, not met by the general evidence produced by Mr Sullivan. The fact, if it be a fact, that there might be a possibility of finding something in a hostel or in one of the organisations that exists in London is no answer to a case which shows, on the face of it, that a claimant has tried and failed in the past, and if he tries now, will almost certainly fail. As I have said, it is common ground that there is no possibility that he will obtain overnight accommodation.

Miss Grange has submitted that the evidence taken at its highest does not show that the Pretty threshold, if I may put it that way, has been crossed; and secondly, in any event, that the claimant has not established his case. In my judgment, if it is established that a claimant will be out on the street in winter, that no charity can assist him in that regard, and that although there is a possibility of some irregular food and washing, nonetheless, there is no real prospect of regular obtaining of such facilities, then the threshold is crossed. That is, as it seems to me, sufficient ill-treatment to accord with the Pretty threshold and the result is certainly degrading, at the very least. As I have said, Article 8 was not separately considered, but, as it seems to me, there is a breach of Article 8(1) as well, although it may be that, in the circumstances, it adds little.

It is also worth referring to the last paragraph in the judgment of Maurice Kay J in R(T) v Secretary of State for the Home Department [2003] EWHC 1941 Admin. Mr Jacobs has submitted that the Court of Appeal did not disapprove the observations that Maurice Kay J made in that paragraph on Article 3. What he said was this:

Like Mr Jacobs, I see nothing in the decision in T which disapproves that approach and the indication that the absence of accommodation, food or the means to obtain them, means there will be little alternative but to beg or resort to crime and that that of itself will be sufficient to cross the threshold since the Pretty consequences will follow within a short period of time. I find it distasteful to require that a wait and see policy is adopted, that is to say, it is not possible to be sure that he will suffer as he says he will, so remove his support, let us see whether he does descend into the state which is indicated in that paragraph from Maurice Kay J's judgment, let us see whether his health does deteriorate, and then if it does, he can make an application.

The problem which this case exemplifies is that, if interim relief is granted too early, it will be said that the Article 3 breach is not imminent. Miss Grange denied that that was the effect of her submission, but it does give rise, as it seems to me, to the proposition that relief should be refused and the situation should be, as I have indicated, wait and see. That I find impossible to accept.

I have been referred to a recent decision of Newman J in the case of Zardasht v Secretary of State [2004] EWHC 91 Admin, decided on Friday 23 January, last. It is said that that supports the approach that if someone can exist for time, albeit having to sleep on the streets, there is no basis for granting relief. In paragraph 12, Newman J said this:

Then in dealing with the question as to what material must be produced to the court, at paragraph 20 Newman J said this:

I accept that there is a need for material to be put before the court to show that the claimant, if relief is not granted, will face an imminent breach of his Article 3 or 8 rights, but I am afraid I cannot go as far as Newman J in rejecting the application of common sense, or in accepting that someone who is obliged to sleep rough will avoid the severity which crosses the Pretty threshold; that is particularly so in winter time.

It seems to me that a claimant should, with the assistance of his solicitor, put before the court what steps he has taken to try and get support, how he has fared and what effect it has had on him if he has had to sleep rough or beg or whatever. His sufferings in the country which he is fleeing and the state of his health generally as affected by any lack of support is clearly relevant. But if he shows that he has taken reasonable steps and that no assistance is available except by begging and hoping, then the fact that he will have to sleep rough, he has no money, he has no proper access to food or other facilities, will be likely to suffice to establish his case.

Treatment, as I say, which causes someone to sleep rough, in particular in winter, to have to beg or hope for the possibility that he might find someone prepared to provide him with food, to be required to live in the same clothes for days on end, which clothes may or may not be adequate to protect him from the English climate, will, as it seems to me, in most cases be sufficient to cross the relevant threshold. In winter, the imminence of serious injury to health, which is likely to result from sleeping rough, is all too obvious and, in my judgment, it needs no medical or other specific evidence to establish what, after all, is a matter of common sense.

In this case, the Secretary of State can do no more than point to a list of charities which might provide some food and some day time shelter in parts of London. That, in my view, is wholly insufficient to counter evidence that a particular claimant has made reasonable efforts to find assistance, whether by himself or through his solicitors, and has failed. In the Zardasht case the evidence produced may well have been too general and insufficient to establish the claim on the facts. But while the result may well have been the correct result, I am not able to follow all the reasoning of Newman J.

I do wish to emphasise that I accept that merely to assert without producing any evidence from the claimant or otherwise that an individual is destitute and has had to sleep rough is not sufficient. The court must be in the position to be satisfied that efforts have been made, what those efforts were and so be able to judge that what has been done has, in all the circumstances, been reasonable. This does not need a great deal of detail. It does not put, as I see it, a great burden on solicitors who have to deal with these cases. Indeed, most solicitors who regularly deal with them know full well that they need to produce material which shows that the criteria laid down by the Court of Appeal in the two cases to which I have referred are met. Those criteria are, of course, binding upon me and I have, I hope, indicated that I entirely accept them and apply them.

In the circumstances, and applying the law as I believe it to be, it seems to me that, on the facts of this case, this claimant has established that, were he to be deprived of support, he would have no access to overnight accommodation and his chances of obtaining food and other necessary facilities during the day would be remote. He would be, as it seems to me, reduced to begging or to traipsing around London in the hope of finding somewhere which might provide him, perhaps irregularly, with some degree of assistance. That, in my judgment, as I repeat, particularly in winter time, is quite sufficient to reach the Pretty threshold and, therefore, on the facts of this case, I take the view that this application must succeed.

I am conscious that I have not approached the matter in quite the same way as Newman J. I am equally conscious that Newman J's case has been used by the defendant as a defence in many of the applications that are before this court. No doubt there will now be, I regret to say, a rival use, I suppose, of this case. I hope that that will not happen and I hope that it will be recognised that what is needed in these cases, to repeat what Maurice Kay J said, is a speedy decision-making process and the recognition that to cause people to have to sleep rough is prima facie something which ought not to occur for the reasons that I have indicated.

As a matter of fact, I am told that this claimant has had his application for asylum refused and that he has lodged an appeal and that that appeal is at present pending. If it is rejected, and one imagines that that should be in a relatively short period of time, then, subject to his right to apply for leave to appeal, which will not detain him very long if there is no merit in it, then he can be removed and this will come to an end in a short time. But I cannot help reflecting that a great deal of money is being spent in these applications to this court, lawyers are being paid out of public funds, whether by the Home Office or by the Legal Services Commission, when a slightly more flexible approach to the problem created by section 55 where it is clear that the claimants are not going to have ready access to any charitable or other funds, would mean that lesser sums were incurred in providing the necessary support. However, I can not prevent the NASS from acting as they do. I know that these section 55 claims seem to be coming into the court at a high rate still, and that it is going to be very difficult for a judge, particularly a duty judge, because many of these claims come outside the working hours, to refuse interim relief when faced with evidence that someone is being required to sleep rough in the winter. That being so, the costs, as I say, inevitably escalate. However, that is not perhaps a matter of central importance to this particular claim which, as I have said, succeeds.

MR JACOBS: I am instructed to apply for the claimant's costs from the Secretary of State, my Lord.

MR JUSTICE COLLINS: Miss Grange, I do not think you can resist that, can you?

MISS GRANGE: My Lord, I cannot.

MR JUSTICE COLLINS: And you want the usual legal aid detailed assessment?

MR JACOBS: My Lord, yes, indeed. If I could ask for a transcript to be expedited in this matter?

MR JUSTICE COLLINS: Yes, very well, that I will do. You want leave to appeal, I suppose?

MISS GRANGE: My Lord, I do. My Lord, whilst I accept that both you and Newman J were essentially looking at these cases on their own facts, and ultimately that is what you have done, both of you felt it right, and I would say appropriately in these circumstances where we have the first few cases coming through --

MR JUSTICE COLLINS: I have approached it in a slightly different way and I recognise that there is now a slight discrepancy between the approaches of two judges in this jurisdiction. In that case it seems to me it would be appropriate for me to give leave to appeal. Was leave to appeal granted by Newman J?

MR JACOBS: I was present at court when his judgment was handed down and he did not grant leave to appeal.

MR JUSTICE COLLINS: I can understand why he did not, but I think it is probably right that I should, then both can be considered by the Court of Appeal if that is considered appropriate.

MISS GRANGE: I am grateful, My Lord.

MR JUSTICE COLLINS: I have in mind the possibility that we might put another of these before a Divisional Court which might help to indicate which is the preferred view, if the matter cannot be got to the Court of Appeal speedily.

MISS GRANGE: My Lord, I would ask that it is expedited to the Court of Appeal.

MR JUSTICE COLLINS: That is a matter for the Court of Appeal. All I think I will do is to give you leave, not because I think there is any real prospect of succeeding on the facts of this case, but because obviously the appropriate approach is of some importance.

MR JACOBS: If I could ask that the basis on which leave is granted be recorded in the transcript, my Lord.

MR JUSTICE COLLINS: I will have to fill in a form (pause). What I have said is:

MR JACOBS: I am grateful, my Lord.

MR JUSTICE COLLINS: Thank you both.