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

Support under section 55(5) of the 2002 Act is required only where its withdrawal would risk a breach of Convention rights. For Article 3, the claimant bears the burden of showing that support is necessary to avoid inhuman or degrading treatment. The threshold is high, and the practical issue will often be whether the claimant faces street homelessness and destitution. The Secretary of State may assess the whole evidential picture, including available family, charitable or informal support. A refusal is not unlawful merely because the claimant’s circumstances may later change. However, a material change may require reconsideration. The court must decide the legality of the refusal on the evidence available at the relevant time and must not replace the statutory scheme with its own regime.

The claimant, an Iranian national, entered the United Kingdom with her adult British-citizen son and claimed asylum. She initially received accommodation under the National Asylum Support Scheme, but the Secretary of State refused further support under section 55 of the 2002 Act, concluding that her asylum claim had not been made as soon as reasonably practicable and that no Convention-rights exception applied.

Permission had been refused on the section 55(1) issue. The remaining question was whether continued refusal of support was unlawful under section 55(5), principally because it allegedly exposed the claimant to treatment contrary to Article 3. The court considered whether the claimant had established destitution and whether the Secretary of State should be required to conduct a further interview or reconsideration.

1. Permission and disposition. Permission to apply for judicial review was granted on the section 55(5) issue, but relief was refused and the application dismissed.
2. Under section 55(5), support may be provided to the extent necessary to avoid a breach of Convention rights. Applying R (O and Others) v Secretary of State for the Home Department [2003] EWCA Civ 364, the claimant bears the burden of showing that support is necessary to avoid Article 3 treatment. The threshold is high.
3. In the context of refused asylum support, the practical question will often be whether the claimant is likely to become street homeless. The court considered the guidance in S, D and T [2003] EWHC Admin 1941, but the assessment remained fact-sensitive.
4. The Secretary of State was entitled to consider the claimant’s possible accommodation with, and support from, her son, acquaintances, Iranian contacts and charities. The claimant’s understandable wish for independence from her son was not relevant to whether she was destitute for this purpose.
5. Although the original decision contained factual inaccuracies about the son’s accommodation, the further evidence had been fully explored in the proceedings. The continued refusal had not been shown to be irrational or unlawful. There was no useful purpose in ordering a further interview or reconsideration at that time.
6. The position could change. If the claimant’s circumstances materially deteriorated, the Secretary of State might have to reconsider the issue. The court’s decision applied only to the circumstances existing at the time of judgment.

The judgment describes earlier procedural steps, including interim-relief applications and the refusal of permission on the section 55(1) issue by Stanley Burnton J. It is a first-instance decision. Permission to appeal was refused because the general legal issues were due to be considered by the Court of Appeal in S, D and T [2003] EWHC Admin 1941.