Gezer v Secretary of State for the Home Department

Article 3 requires the State to take reasonable steps to protect individuals from sufficiently grave ill-treatment by private persons. The content of that duty is fact-sensitive and depends on the State’s responsibility, the severity and source of the threatened harm, and the practical ability of public authorities to provide protection. The distinction between positive and negative obligations does not itself determine whether protection is adequate, nor does State action automatically create an absolute duty. In administering asylum support under the Immigration and Asylum Act 1999, the support agency was not required to make special enquiries or select accommodation tailored to an individual’s vulnerabilities. It was entitled to rely on a functioning police response and properly withdrew the placement once informed that it was no longer viable.

An asylum-seeker and his family challenged decisions by the National Asylum Support Agency to disperse them from London to accommodation on the Toryglen estate in Glasgow and later to require their return there. The family experienced serious racial abuse and violence, including a knife attack, and the appellant relied on his psychiatric illness and the alleged failure of public authorities to identify the risks beforehand.

Moses J dismissed the judicial review application in the Administrative Court on 16 April 2003. He accepted that the treatment crossed the Article 3 threshold but concluded that the protection available was adequate. The Court of Appeal considered whether Article 3 required NASS to make special enquiries into local conditions or the appellant’s vulnerability before offering accommodation, and whether the later return decision constituted a separate public-law complaint.

The appeal was dismissed unanimously. Laws LJ gave the leading judgment. Carnwath LJ agreed. Elias J agreed in the result but differed on whether the appellant had a real choice to accept the accommodation.

1. Where State responsibility is engaged and State action or inaction may expose an individual to suffering sufficiently serious to engage Article 3, the State must take reasonable steps to avoid it. The content of that duty depends on the nature of the State’s responsibility and the factual and legal context. Effective protection requires an ability and willingness to provide a practical system of protection; it does not guarantee that no Article 3-level treatment will occur. This approach was consistent with [2003] EWCA Civ 1605 and [2001] AC 489.
2. The distinction between negative and positive obligations is useful analytically but is not the touchstone of the State’s duty. The case fell within the duty to protect against non-State violence, rather than an absolute prohibition on State-sponsored ill-treatment. The assessment lies on a factual spectrum, informed by the severity and violent origin of the threatened suffering, the State’s reasons and purpose, the degree of State responsibility and the practical circumstances. [2002] 1 WLR 1249 did not establish a separate rule for risks arising from positive State action.
3. Although the racial abuse and violence crossed the Article 3 threshold, the accommodation was offered under a discretionary support scheme and was not compulsorily imposed. Laws LJ treated the ability to refuse support as a factor placing the case towards the discretionary end of the spectrum. Elias J disagreed, holding that statutory rights should not be traded against human rights, but that difference did not affect the outcome.
4. Article 3 did not require NASS, merely because it knew of the appellant’s psychiatric vulnerability, to make special enquiries or select accommodation suitable for him personally. Such a requirement would approach a duty to provide individually tailored accommodation and conflict with the structure of sections 95 and 97 of the Immigration and Asylum Act 1999. On the evidence, NASS was entitled to rely on the local police assessment that protection remained feasible. Once informed that deck-access accommodation was no longer viable, it withdrew the requirement that the family return. The State’s duty was fulfilled, there was no Article 3 violation, and the issue of damages did not arise. The later return decision did not create a separate free-standing public-law complaint.

1. Court of Appeal (Civil Division) dismissed the appeal against the Administrative Court’s decision.
2. Administrative Court (Moses J) dismissed the application for judicial review on 16 April 2003.