'Q' & Ors, R (on the application of) v Secretary of State for the Home Department

This Court interpreted section 55 of the Nationality, Immigration and Asylum Act 2002 and held that the Secretary of State must apply a context-sensitive test to decide whether an asylum claim was made "as soon as reasonably practicable". The proper test requires consideration of the practical opportunity to claim asylum and the asylum seeker’s personal circumstances, including the effect of advice or instructions from a facilitator. Section 55(5) preserves the requirement to provide support where necessary to avoid a breach of Convention rights, and the threshold for Article 3 is high: support must be provided where refusal would expose an applicant to inhuman or degrading treatment or place him or her at imminent risk of that state. The Court found the decision‑making system as then operated to be unfair because interviews did not explain their purpose adequately, caseworkers lacked clear guidance, credibility findings were reached without giving applicants an opportunity to meet the gist of adverse concerns, and decision‑makers often never met applicants. Those procedural defects vitiated the decisions under review and justified quashing; the appeals were dismissed.

Background and parties

The Secretary of State appealed from Collins J’s February 2003 decision quashing six refusals of asylum support taken under section 55 of the Nationality, Immigration and Asylum Act 2002. The respondents were six asylum seekers whose claims for NASS support were refused on the ground they had not made their asylum claims "as soon as reasonably practicable" after arrival. Intervenors (Joint Council for the Welfare of Immigrants and Liberty) made submissions in support of the respondents.

Nature of the claim and procedural posture

• Relief sought: the respondents had obtained judicial review orders quashing Secretary of State decisions refusing support under s.55; the Secretary of State appealed.
• Issues raised: (i) the meaning of "as soon as reasonably practicable" in s.55(1); (ii) what procedure fairness requires when deciding s.55 questions, and whether the system then in place was fair; (iii) whether refusal of support could breach Convention rights (Articles 3 and 8) such that s.55(5) required support; and (iv) whether section 55(10) (removal of statutory appeal) was compatible with Article 6.

Court’s framing of issues

The Court identified three sequential factual/legal questions for the Secretary of State when an application for support is made: (1) was the asylum claim made as soon as reasonably practicable after arrival (s.55(1))?; (2) if not, is the applicant destitute or likely to become destitute (s.95(1) Immigration & Asylum Act 1999)?; (3) if destitute, is provision of support necessary to avoid a breach of Convention rights (s.55(5))?

Reasoning on construction and test

• The Court rejected an exclusively physical/strictly objective test. It adopted a contextual, mixed objective–subjective formulation: on the premise the person came to claim asylum, and having regard to practical opportunity and the asylum seeker’s personal circumstances, could the asylum seeker reasonably have been expected to claim asylum earlier?
• The Court held it proper to take into account an applicant’s state of mind, including information or instructions given by a facilitator, because facilitators are not equivalent to professional advisers and may exert coercive control or mislead.

Convention rights (Articles 3 and 8)

• The Court held that the regime created by preventing work and denying support can amount to "treatment" for Article 3 purposes (it is more than mere passivity by the State).
• The threshold to engage Article 3 is high: the suffering must attain a minimum level of severity, involving intense physical or mental suffering or degrading treatment (reference to Pretty). Refusal of support will engage s.55(5)/s.6 HRA if the applicant is so vulnerable that refusal would expose him or her to inhuman or degrading treatment or place them at immediate risk of that state.
• The Court did not accept Collins J’s approach that a mere "real risk" of descent into destitution automatically engages Article 3; instead the Secretary of State must consider applications afresh and be prepared to grant support when an applicant demonstrates they cannot obtain alternative support and face a risk reaching the Pretty threshold.

Procedure and fairness

• Fairness required clearer explanation of the interview’s purpose, better guidance for caseworkers as to the test, probing interviews tailored to the case, assessment of credibility by a decision‑maker who has met the applicant, and an opportunity for the applicant to meet the gist of adverse concerns before an adverse conclusion is reached.
• The system then operated did not meet these requirements (standard forms, decision‑makers not meeting applicants, insufficiently probing questions, boilerplate refusals), so Collins J was right to quash the decisions.

Article 6 and s.55(10)

The Court held that exclusion of the statutory appeal by s.55(10) was not incompatible with Article 6 provided the Secretary of State remedies procedural defects; modern judicial review can afford a Convention‑compliant route to an independent tribunal where the administrative process is fair and sufficiently probing.

Disposition

Appeals dismissed. The Court emphasised the need for the Secretary of State to reform interview and decision‑making procedures so s.55 can operate consistently with fairness and Convention obligations.

Appeal dismissed. The Court upheld Collins J’s central conclusion that the particular decisions under section 55 were vitiated by unfair procedure. The Court (i) construed the phrase "as soon as reasonably practicable" to require consideration of practical opportunity and the asylum seeker’s personal circumstances (including facilitator advice/instructions where relevant); (ii) held that the regime of denying support can amount to "treatment" under Article 3 and that s.55(5) preserves the obligation to provide support where necessary to avoid inhuman or degrading treatment; (iii) concluded that the Secretary of State’s system then in operation was procedurally unfair (inadequate pre‑interview explanation, poor guidance, insufficiently probing interviews, credibility findings without opportunity to meet the gist); and (iv) found s.55(10) not incompatible with Article 6 provided procedural defects are remedied and judicial review can operate effectively.

Appeal from Collins J’s judgment in the Administrative Court (High Court of Justice, Queen’s Bench Division) dated 19 February 2003, which quashed six decisions refusing asylum support under section 55 of the Nationality, Immigration and Asylum Act 2002. This Court (EWCA Civ) dismissed the Secretary of State’s appeal on 18 March 2003.