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

MR JUSTICE NEWMAN: The outcome of this application for judicial review turns upon the proper application of section 55(5) of the Nationality, Immigration and Asylum Act 2002 to the particular and uncomplicated facts of this case. That said, recent cases have shown, nevertheless, that the application of the law to uncomplicated facts, falling within a narrow compass and having the same character, can give rise to a different outcome. This is because the answer lies in the detail. The significance of the detail in these cases, regrettably, has remained lost to too many lawyers acting for claimants. The absence of detail has, in many cases, been marked. As a result, it has to be said, both the Secretary of State's and the court's ability to determine applications efficiently and coherently has been significantly affected. This case provides a convenient opportunity to remind claimants and their lawyers what the application of the law in this area requires by way of evidence.

There has been little, if any, dispute about the central principles of law to which the section gives rise. They are to be derived from two Court of Appeal decisions, namely, R (on the application of Q and others) v Secretary of State for the Home Department [2003] 2 All ER 905, and R (on the application of T) v Secretary of State for the Home Department [2003] EWCA Civ 1285. To those Court of Appeal authorities should be added, for general guidance, the decision of Maurice Kay J, as he then was, in the R (on the application of) Q, D, KH, OK, JK, H, T and S v Secretary of State for the Home Department & Shelter (Intervening Party) [2003] EWHC 2507 Admin.

Where an asylum seeker has been refused support under section 55 of the 2002 Act, because he has not made his application as soon as reasonably practicable after arrival, he may, nevertheless, be entitled to support if he can show: (1) that such support is necessary to avoid his or her being subjected to "inhuman or degrading treatment" under Article 3 of ECHR, (2) that he has discharged the burden of satisfying the Secretary of State that such support is necessary because (3) the facts show that the individual's condition verges on the degree of severity described in Pretty v United Kingdom [2002] 2 FCR 97.

It has to be emphasised that proof of this will not be made out unless and until it is clear that charitable support has not been provided and the individual is incapable of fending for himself. That will be the position in the general run of cases. Specific cases, as I will illustrate in a moment or two, may give rise, where health issues are concerned, to different considerations.

It has to be emphasised that the majority of asylum seekers are likely to share all, and if not all the majority, of the following circumstances: (1) having no home, (2) having no source of income, (3) having few or no possessions, (4) having little or no money, (5) being total strangers to the United Kingdom, (6) having little or no command of the English language, (7) being lonely, disorientated and anxious about their position and their welfare and/or (8) being vulnerable to bad elements present in society. That list is not intended to be comprehensive, there are no doubt other common factors which regularly come into play.

The extent to which these circumstances are shown to affect an individual claimant, will be central to the question whether the threshold of severity has been reached. It may have been reached in respect of that individual, but whether it has or not will be a matter of evidence in connection with that individual's particular position. Of course, in individual cases, special circumstances outside those I have listed may exist, such as: bad physical health, disability, age, or mental disease or disorder. Their existence undoubtedly can significantly affect the position of an individual claimant. Where they do, they must be clearly stated in evidence and where possible supported by independent evidence.

But such special circumstances aside, it is, in my judgment, essential for practitioners to realise that simply to state what could be regarded as the obvious, namely that the applicant is homeless, sleeping rough, has no money, and is lonely and vulnerable, will not be likely to be regarded, in the normal run of things, as sufficient. More than that, if after enquiry of an applicant, namely the enquiry as to the detail, which should be made by the lawyers acting for the applicant, the true position is that the general circumstances exist but without any heightened presence, so far as the individual is concerned, so as to give rise to the necessary degree of severity, simply to launch an application on such a basis may not be a proper discharge of duty, either to the claimant or, ultimately, the court, when an application for judicial review is made.

Again, to make an application without having gone through the process of making detailed enquiries of the claimant before the application is made, being enquiries which the proper application of the law requires, may also not be a proper discharge of duty.

In my judgment, the principled working out of this legislation leads to the conclusion that Parliament must be taken to have intended that, even if all the circumstances which I have listed above in paragraph 5 are present, a case will not necessarily have been made out for support. Some may think that that is harsh, it may offend the moral and social values of others, but it is the law, as enacted by Parliament and interpreted by the courts.

It is obvious that the purpose of this provision is to deny asylum seekers the benevolence which Parliament has, in the Immigration and Asylum Act 1999, made available. It is obviously not intended to be a piece of benevolent legislation. It expressly denies the benefit under section 95 of the 1999 Act which is available for destitute asylum seekers. Thus, as was pointed out in the Court of Appeal in the case of R [2003] 2 All ER 903, and merits repetition (see paragraph 59):

Therefore, the incantation which the judges of this court see time and time again, that a claimant is "destitute", really does not begin to move into the area of detailed fact which a proper consideration under this legislation requires. Further, I might add that, in my judgment, the proper interpretation of the section leaves open for consideration in each case for what period of time each of the circumstances, which I have described and which may amount to destitution within the meaning of the 1999 Act, can prevail before the threshold of Pretty is reached.

Thus, it seems to me, that being destitute for weeks will not necessarily verge on a breach of Article 3. This is because of the obligation on an applicant to establish, so that it is clear, that charitable support has not been provided and that the individual is incapable of fending for himself. By way of example, the claimant in this case is apparently a fit and healthy man of 20. If, despite being homeless, namely having no night shelter or accommodation, he can obtain food from charities during the day, or other sources, and has some access to washing and sanitary facilities in the course of the day, it is possible that he could live for an extended period of time under such conditions without severe adverse consequences reducing his condition to the Pretty level. Against that it can be said prolonged and severe conditions of cold could affect a fit man of 20 years if he is sleeping rough.

Within the concept of fending for himself falls the assistance or support which he might be able to obtain from friends, whether new or old, and family, as well as simply "fending for himself". For the legislation contemplates that from such efforts a palliative measure may ensue which will prevent the seriousness of his condition sinking to the Pretty level. It follows that these factors must be eliminated by evidence, or covered in as much detail as makes the position clear.

In this regard it is notable that the concept of "fending for oneself" received consideration in the Court of Appeal in the case of R (on the application of T). It will be remembered that the Court of Appeal allowed the appeal of the Secretary of State in connection with T. It is worth dwelling for a moment on the facts in the case of T:

When coming to the conclusion in connection with T's case to allow the appeal, having recited that part of the judgment of Maurice Kay J which was under appeal, the court, having considered all those factors, then concluded:

I merely draw attention to this in order to emphasise to practitioners the close attention and thought that needs to be given to the circumstances of each case, so that the court is not, as Maurice Kay J pointed out in the guidance case to which I have referred, left in the position where there are innumerable applications made, many of them on paper, with generalities of expression, without the particularity which the proper discharge of this jurisdiction requires.

Despite the above many applications are predicated upon the presence of general circumstances and a general assertion that they have continued for a week or more, or some other period, and are likely to continue. As I have already indicated, these general references to homelessness, having no money, being dependent upon charity for food and facilities for personal hygiene, and the fact that they may well continue for some time in the future or will continue for some time in the future, may well simply not be enough.

Again it should be emphasised, in connection with the nature of the threshold of fact or risk to which the evidence must condescend, that the Secretary of State succeeded in the Court of Appeal in the case of R in establishing that the test advanced by Collins J below, that a risk of an Article 3 infringement was sufficient, was wrong. The requirement is that the facts are verging on such a degree of severity.

I accept the submission of Mr Giffin QC for the Secretary of State that the expression "verging on" requires the facts to disclose a discernible imminence that the state of severity is impending. That involves a temporal consideration. It must also be "clear" that that is the position because there are no other means (charity/fending for himself) which can prevent it. Save for adding that imminence means "within a very short period of time", further explanation is unnecessary, because both the Secretary of State and the court is well able to understand what is meant by the word "clear".

In his helpful and realistic submissions Mr Berry's case was founded upon the following proposition: if no other avenues are available, then common sense dictates that someone already on the streets with no income, if not now suffering to the required degree, it is clear will within a short period of time be suffering to the required degree.

I am unable to accept the breadth or generality of that submission. I reject also that it is a result which arises from the application of common sense. In this particular area, as I have been anxious to emphasise, it seems to me the application of common sense will not assist, because what is needed is a result which arises from detailed consideration of evidence, not the application of broad concepts.

The facts of his case can be briefly stated. He claimed to have arrived in the United Kingdom on 24th July 2003 and on 25th July 2003 he claimed asylum. Between 25th July 2003 and 5th September he received asylum support. He received a letter on 4th September giving him notice that it was withdrawn.

His evidence in support of the section 55(5) claim was that from the 5th September 2003 he was evicted from the accommodation which had been provided. On the night of the 5th and 6th September he slept in a park in Victoria. On the nights of 7th, 8th, 9th September he slept in a church in Clapham. On the nights of 10th and 11th September he slept in a park in Croydon. The evidence put in on his behalf then merely stated:

In a witness statement from his solicitor, which was made on 21st January 2004, namely the day before the hearing in respect of which this is the judgment, and it has to be said despite repeated requests from the Treasury Solicitor for more information, a few further details were given:

That reference to having approached the Refugee Council for food in the daytime is to be contrasted with the first statement from the claimant, dated 17th September 2003, which said:

The letter before action in this matter, which was dated 17th September 2003, refers to the rejection of support. Then:

In summary, the position therefore is that the claimant is aged 20 and comes from Iraq, from whence he travelled, on his account, for seven days in the back of a lorry. He is not, on the evidence, suffering from any ill health or mental illness. He spent fourteen days, between 4th September and 19th September, when he obtained the interim relief, as I have described, sleeping in the places I have indicated.

So far as food is concerned, there are smatterings of evidence. It is said during the time that he was at the church, namely between 7th and 9th September, that he received some food, but the amount of the food, the nature of the food, the frequency of the food, has not been specified. While he was sleeping in the park, I think the park in Croydon, his evidence is that a man gave him some food. Again, no evidence as to the detail, no evidence as to how long it continued. No evidence even to explain who the man was and how it arose; whether he was simply a good Samaritan or whether it was somebody with whom by then he had struck up some form of friendship.

As I have indicated, as far as the period for 12th to 19th September is concerned, the evidence lacks all specificity. It is simply: has slept rough, street homeless and only had intermittent access to food. One simply does not know what is meant by "intermittent access to food". In a sense everybody has intermittent access to food. It gives no idea of the length of the intervals, nor indeed the amount of the food. It is obviously meant to mean that he has had less access to food than is required, but it is not enough and it simply does not develop the case.

If one, therefore, divides the relevant circumstances prevailing, so far as this claimant is concerned, into four categories: overnight accommodation, money, food and health, it is plain, on the evidence, that he has no access to regular accommodation, indeed any accommodation may be the true position, but in the period of time with which we are concerned he did have some food. As I have said, his health does not create a problem and it can be accepted that he has no money. But in the absence of detail, in particular about the food with which he has been provided, or how he has managed to deal with his personal hygiene, the Secretary of State, through Mr Giffin, has invited the court to infer that there must have been a sufficient amount of food to prevent him becoming really debilitated by a condition of starvation. Otherwise it is remarkable that no specific evidence has been given as to such debilitation. Where, as in a case such as this, the burden is upon the claimant, the court is bound to agree with that submission.

One assumes that if he had been deprived of food over a period of 14 days for such a significant period of time, or because it was only very intermittent indeed, there would be a measure of starvation and debilitation which any lawyer would have been alert to notice, or which would have formed part of the complaint which the claimant himself would have made to the lawyer, which would have been reflected in the statement.

In this context, it has to be said that, as I understand it, for the first time in cases such as this and certainly in a contested case, the Secretary of State has put in a witness statement from Mr Sullivan, who is a case worker in a National Asylum Support Service at Lunar House. His statement is very short. He says:

He goes on to add:

I do not intend to go through the detail of the exhibit. It has been taken off the internet, but it undoubtedly does disclose that there do exist refugee units or refugee centres and areas where special attention and provision is made for refugees; providing, for example, essential supplies of food, toiletries and clothing and so forth. It cannot be said that they are all over London, but they are in London.

As I understand it, the thrust of the approach of the Secretary of State to that part of the case, or that part of these cases, which inevitably arises, having regard to the interpretation the law has received, is that so far as accessing those centres is concerned, their existence must be a matter which solicitors to claimants and lawyers to claimants can be aware, having regard to their availability on the internet. According to the circumstances of individual claimants they may or may not be able to access them.

It seems to me to follow that those advising claimants will be well advised, in the interests of their clients, to see that this is not left as something not covered in the evidence. If it be that approaches are made to centres for assistance and evidence is negative, then that will assist the claimant's case. If difficulties arise in terms of transport, having regard to where the claimant is in accessing them, again that will assist so far as the claimant's case is concerned. It is simply of no avail for it to be said in a witness statement, "My solicitor does not know of anywhere and I do not know of anywhere".

Although the submissions of Mr Giffin may have desired to go further in connection with this evidence, it is fair to say that I think he recognised that there were limits, having regard to the manner, and, one might say, its rather late arrival into the case, on the extent to which the court can take this part of the material. But I do accept that at least it means that it cannot be said to be fanciful or unrealistic for both the Secretary of State and, it follows, the court, on judicial review, to pay regard to the fact that these agencies do exist, which do specifically look after the welfare and interests of refugees during the day. As a result of the law, it is incumbent, as an aspect of the discharge of duty for the claimant, to make it plain whether or not attempts have been made to access any such agencies, and if access has not taken place, why.

As I have indicated in my review of the facts of this case, the claimant here did approach the Refugee Council. This list to which I referred is one which emanates from the Refugee Council. As I have indicated, the evidence is that he received food through his contact with the Refugee Council. But again, there being no detail as to how long this continued for, or what it actually extended to, one is left in an unclear position. There is certainly no suggestion that he was refused food.

In all these circumstances I have concluded that it is not clear, on this case, that the high threshold laid down by Pretty, to which I have not referred in detail because it has been cited on many occasions and is familiar and available to all, has been achieved in this case. Therefore, for all these reasons, this application for judicial review must fail.

MISS BRAGANZA: My Lord, I am collecting judgment for Mr Berry. There are two matters that arise. The first is that I have an application for permission to appeal. I make that application on the basis that your Lordship's judgment raises an important point on which guidance from the higher court would be necessary, in particular, with regard to the application of facts and as to when they amount to treatment verging on a breach of Article 3, as opposed to amounting to a breach. So, on that basis I seek permission. That is the first matter.

The second is in terms of the interim order that was made. What I seek is that Mr Zardasht is granted 14 days before the order is discharged to enable him to make further attempts for charitable help or any other help that might be available, because otherwise he will be returned to the same position that he was in before, which is homeless in January when it is getting colder without access to --

MR JUSTICE NEWMAN: Sorry, I have not quite followed what you are asking for in this regard. You are asking for --

MISS BRAGANZA: The interim order, rather than it being discharged today --

MR JUSTICE NEWMAN: You want the interim order to continue?

MISS BRAGANZA: Yes, my Lord. I briefly discussed this with Mr Giffin. I know that he has instructions on that.

MR JUSTICE NEWMAN: Right, is there anything else you want to say?

MISS BRAGANZA: No, my Lord, those are the points.

MR JUSTICE NEWMAN: Thank you. Mr Giffin?

MR GIFFIN: My Lord, one point, first, on your Lordship's judgment. I think, almost at the end, your Lordship said that the "list to which I have referred", ie the exhibit to Mr Sullivan's statement, emanates from the Refugee Council. My Lord, although I think the second exhibit is a Refugee Council document, the main part about the day centres, unless I misunderstood the position --

MR JUSTICE NEWMAN: Well, you probably know the evidence better than --

MR GIFFIN: It is information from the Refugee Council website. Yes, I think that is what your Lordship meant.

MR JUSTICE NEWMAN: Yes, that is all I had in mind.

MR GIFFIN: I apologise for that. So far as my learned friend's two applications are concerned: permission to appeal; in my submission, although your Lordship has given important general guidance about how matters of evidence in these cases should be approached, so far as the substance of the decision is concerned, your Lordship has simply applied the principles already established in cases that were selected as test cases. There would be no useful purpose to be served and no merit in an appeal.

So far as the question of the interim order is concerned, my Lord, first of all there is a legal point here. Parliament has enacted that the Secretary of State has no power to provide accommodation save where section 55(5) is satisfied, as to which your Lordship has come to a clear conclusion. If no permission to appeal is granted that will remain the position. So it is very difficult to see how any extension of the interim order would be even jurisdictionally possible in these circumstances.

In any event, it has to be said that this hearing has not suddenly come on. The claimant's advisers no doubt have told him that if the application for judicial review failed he would lose his entitlement to accommodation. So there has been a long opportunity in which to make plans for that eventuality. The fact is that the claimant has had four months of accommodation to which, as it transpires, he was not really entitled. So, in those circumstances I submit that that application should be refused.

For my part I am instructed to apply for the usual costs order against a claimant with Community Legal Service Funding, ie costs, but with the determination of the claimant's liability postponed.

Unless I can assist, my Lord.

MR JUSTICE NEWMAN: Miss Braganza, do you want to say anything more?

MISS BRAGANZA: No, my Lord.

MR JUSTICE NEWMAN: There must be the usual order as to costs as Mr Giffin asks. As to the two applications: firstly, as to permission to appeal, I am satisfied that the general guidance that I have given does not give rise to sufficient ground for this matter to be looked at by the Court of Appeal. So far as the result is concerned, which I think is what an appeal would be concerned with, it has been the application of the established principles to these facts and my conclusion is upon the basis of the facts of this case. For those reasons there will be no permission to appeal.

So far as continuing the order for interim relief, in my judgment, there is no power, save in respect of a continuing case for Article 3 to be engaged, or there be a situation verging on Article 3 being breached, and as to that I have concluded there is not. It follows that there cannot be an order for interim relief because I am not granting any permission to appeal.

I obviously recognise the underlying thrust of Miss Braganza's submission, which is that if the interim relief ceases then he will be homeless. That seems to me to follow inevitably and that, in its turn, will have to depend upon events as to whether circumstances then arise in which he is in a position to make a further application, because he says the situation then becomes one in which his conditions verge on Article 3 being breached. That is a consequence of this legislation and I can do nothing about it.

Thank you.

MISS BRAGANZA: My Lord, one very final matter, may we have 7 days to lodge our certificate? Funding has been granted, but there will not be certificate on the file at the moment.

MR JUSTICE NEWMAN: Of course. The only other thing I was going to mention was, you would like an expedited transcript of the judgment, would you not?

MR GIFFIN: My Lord, that is what I was standing up to ask for.

MR JUSTICE NEWMAN: (Discussion with shorthand writer). It is Wednesday, I think, next week, the other cases are listed?

MR GIFFIN: That is right, my Lord.

MR JUSTICE NEWMAN: Yes, it will be ready for me to check before then.

MR GIFFIN: I am very grateful.

MR JUSTICE NEWMAN: Thank you very much.