S 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, the question whether asylum was claimed as soon as reasonably practicable requires an individualised assessment. Relevant considerations include the claimant’s state of mind, personal circumstances, practical opportunity, and the influence of an agent or facilitator. Generic assumptions about asylum seekers, illegal entry, airport notices or travel documents cannot replace that assessment.

Where support is refused, Article 3 may require intervention before the claimant reaches the worst possible condition. The relevant question is whether the claimant’s destitution is verging on the required minimum level of severity, having regard to the absence of charitable support, inability to fend for himself, and resulting humiliation, loss of dignity, illness or severe suffering.

Three judicial review claims challenged refusals of asylum support under section 55 of the Nationality Immigration and Asylum Act 2002. The claimants, nationals of Somalia, Ethiopia and Malaysia, had entered the United Kingdom by air and claimed asylum after arrival. Support was refused on the basis that their claims had not been made as soon as reasonably practicable.

They also argued that continuing refusal of support, in circumstances of homelessness and destitution, would breach Article 3 of the ECHR. The court considered the guidance in R (Q and Others) v Secretary of State for the Home Department [2003] EWCA Civ 364, the fairness of the decision-making process, and whether the evidence in each case established a breach of Article 3.

1. Section 55(1). The statutory test is whether, having regard to the practical opportunity to claim asylum and the claimant’s personal circumstances, he could reasonably have been expected to claim earlier. The decision-maker must assess the individual case fairly and must consider the effect of anything said or done by an agent or facilitator. Generic reasoning cannot substitute for that assessment.
2. S’s section 55 challenge failed. Although parts of the reasoning were generic, the Secretary of State had made individualised findings concerning the passport, airline and alleged accommodation, and it was open to him to conclude that S had fabricated his account to conceal his date of arrival.
3. D’s section 55 challenge succeeded. The decision relied on preconceptions about how asylum seekers and agents act, gave excessive weight to airport notices and illegal entry, and failed to assess D’s evidence and subjective state of mind fairly. The decision was quashed.
4. T’s section 55 challenge failed. The individualised findings concerning his conduct after arrival provided a sound and inevitable basis for concluding that he had not claimed asylum as soon as reasonably practicable.
5. Article 3. Section 55(5)(a) permits, and section 6 of the Human Rights Act 1998 requires, support where necessary to avoid a breach of Convention rights. The threshold is high, but the obligation may arise prospectively when the claimant’s condition is verging on the relevant degree of severity. The absence of charitable support, inability to fend for oneself, rough sleeping, begging, hunger, illness, humiliation and diminution of human dignity were material considerations.
6. All three claimants established an Article 3 breach. Their judicial review claims therefore succeeded. The claimants were awarded their costs in full. Permission to appeal was refused on D’s section 55 claim but granted on the Article 3 issue.

This was a first-instance decision in the Administrative Court. Permission to appeal was refused in relation to D’s section 55(1) success and granted on the Article 3 issue.