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

A State may owe a positive obligation under Article 3 to take reasonable measures to protect individuals from inhuman or degrading treatment inflicted by private persons. The duty arises where the State knew or ought to have known of more than a fanciful risk. It does not guarantee safety. Protection must be reasonably available, practical, and capable of offering a real prospect of avoiding or mitigating the harm. The extent of protection depends on the degree and generality of the risk, and relevant policy considerations may be balanced against the need for protection. In the asylum-dispersal context, accommodation is not inadequate merely because racial abuse and violence are possible. The risk must be sufficiently particular and grave that reliance on ordinary police and support arrangements is no longer reasonable.

The claimant, a Turkish asylum seeker of Kurdish origin, challenged decisions by the National Asylum Support Service to disperse his family to deck-access accommodation on the Toryglen Estate in Glasgow, and later to require their return there. The family experienced sustained racial abuse and a violent attack, after which they returned to London. NASS subsequently threatened to terminate support if they did not return, delayed subsistence vouchers, and withdrew the return decision after receiving medical evidence.

The judicial review claim alleged breaches of Articles 3 and 8 of the European Convention on Human Rights and sought damages. The central issue was whether NASS had failed in its positive obligation to protect the family from a known or foreseeable risk of treatment falling within Article 3.

1. The claim and damages claim were dismissed. The treatment actually suffered by the family, consisting of sustained racial abuse coupled with racially motivated violence, fell within Article 3. The claimant’s medical condition also made the treatment more serious because it exacerbated his psychological problems.
2. Article 3 may require the State to protect individuals against inhuman or degrading treatment administered by private persons. The obligation arises where the State knew or ought to have known of a risk that was more than fanciful. The claimant need not prove that the harm would have been avoided but for the State’s omission. A failure to take reasonably available measures offering a real prospect of avoiding or mitigating the harm is sufficient.
3. The obligation is one of reasonable protection, not a guarantee of safety. The measures must be reasonably available and assessed by practicality, common sense and humanity. The extent of protection depends on the degree of risk. General risks call for general measures; specific risks may require more targeted protection. Policy considerations, including scarce public-sector accommodation, public order, crime prevention and the avoidance of no-go areas, may be taken into account.
4. The risk to asylum seekers in the Toryglen deck-access accommodation had not, before the attack on 27 October 2001, become so grave that reliance on police protection and support arrangements was unreasonable. The accommodation was therefore not shown to be inadequate under sections 95 and 97 of the Immigration & Asylum Act 1999.
5. Although the treatment suffered also engaged Article 8, failure of the Article 3 claim meant that no breach of Article 8 was established. The court declined to add obiter guidance on damages. It nevertheless observed that, had a breach been established, a declaration alone would not have provided just satisfaction and damages would have been appropriate.

This was a first-instance judicial review in the Administrative Court. The court refused permission to appeal, holding that the case applied settled principles to the facts.