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

Under section 55 of the Nationality, Immigration and Asylum Act 2002, reasonable practicability depends on both the practical opportunity to claim asylum and the individual asylum seeker's personal circumstances, including the effect of instructions from a facilitator. The applicant bears the burden of proof.

Refusal of support may amount to treatment under Article 3 where the statutory regime prevents both removal and work. Support is required only when the applicant's condition reaches the high Article 3 threshold, not merely because there is a real risk of future destitution. A fair process must explain the issues, investigate the individual account, and permit an applicant to answer credibility concerns. Judicial review can satisfy Article 6 if that fair primary process is in place.

Six asylum seekers sought judicial review after the Secretary of State refused them support under section 55 of the Nationality, Immigration and Asylum Act 2002. The refusals were based on the conclusion that their asylum claims had not been made as soon as reasonably practicable after arrival in the United Kingdom.

Collins J quashed the decisions, principally because the screening and decision-making procedure was unfair. The Secretary of State appealed. The Court of Appeal considered the statutory test for late claims, the effect of Articles 3, 6 and 8 of the European Convention on Human Rights, and whether the absence of a statutory appeal was lawful.

1. Appeals dismissed. The Court upheld Collins J's conclusion that the six original decisions were vitiated by an unfair procedure.

2. The section 55(1) question is whether, on the premise that the purpose of coming to the United Kingdom was to seek asylum, the applicant could reasonably have been expected to claim asylum earlier. The inquiry includes the practical opportunity to claim and the applicant's personal circumstances. It may include the effect of information or instructions from a facilitator. A facilitator is not to be equated with a professional adviser whose advice is legally attributable to the client.

3. The section 55(1) regime amounted to Article 3 treatment because an asylum seeker with an unresolved claim could neither be removed nor lawfully work without permission. Applying the Article 3 severity guidance in Pretty v United Kingdom (2002) 35 EHRR 1, the Court held that the threshold was high. It was not enough that there was a real risk that a destitute person might later deteriorate. Support became necessary where the applicant's condition already verged on the required degree of severity and there was no charitable or other lawful means of self-support. Article 8 could potentially be engaged but added little on these facts.

4. Fairness required a system that clearly explained the purpose of the interview, correctly instructed staff on the statutory and human-rights tests, and made sufficiently flexible inquiries into the reason for delay and any vulnerability. Where credibility was in issue, the applicant had to be told the gist of the concern and given an opportunity to respond. Reconsideration after an adverse decision could not cure an intrinsically unfair primary process.

5. Article 6 was not satisfied while that deficient process operated, because judicial review could then only quash an uninformed decision. However, section 55(10) was not incompatible with Article 6: a fair administrative process, followed by modern judicial review, could provide access to an independent and impartial tribunal with adequate jurisdiction.

• Court of Appeal (Civil Division): dismissed the Secretary of State's appeals and upheld the quashing of the six support decisions.
• Administrative Court: Collins J allowed the asylum seekers' judicial-review applications on 19 February 2003, principally because the procedure used to refuse support was unfair.