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

Article 3 protection in an asylum-support case depends on the overall circumstances and the severity of their effect on the individual. No simple rule determines when homelessness or destitution becomes inhuman or degrading treatment. Relevant factors include access to shelter, food, sanitation and charitable assistance, physical and mental condition, and the duration and consequences of the deprivation. The claimant bears the burden of showing that support is necessary to avoid an Article 3 breach, and the threshold is high. The Secretary of State must act where the condition reaches, or is imminently verging on, the requisite severity, but need not provide support merely because Article 3 might later be engaged. The appellate court may determine the mixed question of fact and law without deference once the relevant facts are established.

The Secretary of State refused support under section 55(1) of the Nationality, Immigration and Asylum Act 2002 to three asylum-seekers, including T, because their asylum claims were not made as soon as reasonably practicable after arrival. Section 55(5) preserved a power to provide support where necessary to avoid a breach of Convention rights, and section 6 of the Human Rights Act 1998 made compatible action obligatory.

Maurice Kay J allowed the applicants’ Article 3 claims. The Secretary of State did not challenge the findings concerning S and D in the circumstances described, but appealed the finding concerning T. The issue was whether T’s condition while sleeping and spending his days at Heathrow Airport had reached, or was verging on, the severity required by Article 3.

1. Appeal allowed. T’s circumstances on 24 April 2003 had not reached, and were not verging on, inhuman or degrading treatment. He had shelter, sanitary facilities and some money for food. Although he was not entirely well physically, he was not so unwell as to require immediate treatment. The judge’s conclusion therefore did not follow from the facts found.
2. Article 3 cannot be applied through a simple definition. The question must be assessed in all the circumstances, applying the guidance in Pretty v UK [2002] 2 FCR 97. Homelessness may be relevant, but it is not by itself sufficient. The purpose of the State’s treatment need not be to debase or humiliate; its effect is more important. Emotional distress alone is insufficient, although it may be relevant.
3. The claimant bears the burden of showing that support is necessary to avoid treatment contrary to Article 3. The claimant must establish a clear right to relief. The Secretary of State need not provide support merely because Article 3 may later become engaged, but must act when the claimant’s condition reaches the requisite severity and the statutory safeguard is engaged.
4. The issue is a mixed question of fact and law. Once the facts are established, whether they bring an applicant actually or imminently within Article 3 is a question the court can determine without deference to the original decision-maker. The Court of Appeal was as well placed as the first-instance judge.
5. The evidence suggested that T might be mentally ill and that his asylum claim might be delusional. Although this did not justify relief in the proceedings as framed, the authorities were invited to reconsider his position under section 55(5) of the Nationality, Immigration and Asylum Act 2002 or section 21(1) of the National Assistance Act 1948.

• Administrative Court: Maurice Kay J, on 31 July 2003, upheld the Secretary of State’s section 55(1) decision concerning two applicants, quashed the decision concerning D, and allowed all three applicants’ claims under section 55(5) of the Nationality, Immigration and Asylum Act 2002 and Article 3.
• Court of Appeal (Civil Division): The appeal concerning T was allowed. The court held that T’s circumstances did not engage Article 3 on the relevant date, while inviting reconsideration in light of evidence concerning his possible mental illness.