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

A failure by a public authority to protect Convention rights is not automatically actionable merely because an interference has occurred. For omissions, liability under the Human Rights Act 1998 requires an implied positive obligation. The relevant inquiry is whether the authority knew or ought to have known that the claimant was suffering, or was at risk of, treatment engaging Articles 3 or 8; whether it failed to take reasonably available measures; and whether those measures had a real prospect of avoiding or mitigating the harm.

Article 3 requires treatment reaching a high threshold of severity. Article 8 may be engaged by serious damage to mental health, dignity or psychological integrity. Damages are exceptional and must be necessary to afford just satisfaction, but may compensate psychiatric injury where a clear causal link is established.

The claimant, a Libyan national, sought asylum in the United Kingdom. The Home Office sent a Statement of Evidence form to an incomplete address, refused the asylum claim for non-compliance, failed to process the appeal for about eleven months, discontinued benefits and maintained removal directions despite information concerning the treatment of returned Libyan asylum seekers.

After judicial review proceedings were commenced, the refusal was withdrawn. The claimant was subsequently recognised as a refugee and granted indefinite leave to enter. He claimed declarations and damages under the Human Rights Act 1998, alleging breaches of Articles 3 and 8 through administrative errors and omissions. The central issues were whether the treatment engaged either Article, whether the Secretary of State owed and breached a positive obligation, and whether declaratory relief and damages were available.

1. Article 3. Article 3 is absolute and applies only where treatment reaches the requisite minimum level of severity, assessed in the light of its nature, context, duration and physical and mental effects. The claimant’s anxiety, depression, financial hardship, lack of furniture and fear of removal, considered cumulatively, did not reach the high Article 3 threshold. He had accommodation and food, retained rights of appeal, was not actually removed or harassed by the authorities, and the absence of intentional ill-treatment was a relevant factor. The Article 3 claim therefore failed.
2. Article 8. Article 8 protects psychological integrity and mental health. The claimant’s serious depressive illness and the effect of the Home Office’s conduct engaged his private-life rights. The court accepted, alternatively, that the Home Office’s conduct had departed so far from its duties as to amount to a denial or contradiction of the duty to act.
3. Positive obligation. The court adopted the approach in E and Others v United Kingdom (33218/96). A positive obligation may arise where the authority knew or ought to have known that the claimant was suffering, or was at risk of, treatment engaging Article 8; failed to take reasonably available protective measures; and those measures had a real prospect of altering or mitigating the harm. The same conclusion followed from the fair-balance approach in Rees v United Kingdom and, alternatively, the more demanding approach in Anufrijeva and Anufrijevas v London Borough of Southwark.
4. The Secretary of State knew or ought to have known of the claimant’s vulnerability, the danger facing returned Libyan asylum seekers, the failure to process the appeal, the loss of benefits and the resulting risk of mental anguish and degrading treatment. Reasonable steps included sending a further form, considering the claimant’s statement of claim, processing the appeal and granting appropriate leave or refugee status. Those steps had a real prospect of avoiding or mitigating the harm.
5. Remedies. A declaration was granted. Under section 8 of the Human Rights Act 1998, damages are not automatic and are exceptional, but they may be awarded where necessary to afford just satisfaction. The claimant established a clear causal connection between the Article 8 breach and his psychiatric injury. The finding of violation and later grant of asylum did not provide sufficient satisfaction. Entitlement to damages was established, with quantification and special damages adjourned for a further hearing. The Article 3 claim was dismissed.