Secretary of State for the Home Department v Limbuela & Ors

Denial of asylum support may constitute inhuman or degrading treatment where the claimant has no effective charitable support or lawful means of subsistence and the resulting destitution is sufficiently severe or imminent.

The state must take reasonable measures where the scale of destitution makes it practically certain that existing charitable services cannot prevent a substantial number of affected asylum-seekers from crossing the Article 3 threshold. A policy which leaves the state without adequate arrangements in those circumstances is unlawful.

The Secretary of State appealed against three Administrative Court judgments granting judicial review of decisions to withhold asylum support. Each respondent had been excluded from support under section 55(1) of the Nationality, Immigration and Asylum Act 2002. The issue was whether section 55(5) required support to avoid inhuman or degrading treatment contrary to Article 3.

The appeals also raised a wider problem. More than 650 similar cases were awaiting determination, and the evidence indicated that existing charitable accommodation, food and hygiene facilities could not cope if interim support were withdrawn. The central questions concerned the degree of destitution required to engage Article 3 and the state’s responsibility for preventing systemic breaches.

1. Appeals dismissed by a majority. Carnwath and Jacob LJJ held that the Administrative Court’s orders should stand. Laws LJ dissented and would have allowed the appeals.

2. Per Carnwath LJ, with whose wider analysis Jacob LJ agreed, the decision in R (Q) v Home Secretary [2003] 3 WLR 365 established that the statutory regime could constitute state treatment for Article 3 purposes. The relevant condition need only be verging on the required severity. A claimant need not await the actual onset of severe illness. Clear evidence that charitable support is unavailable and that the claimant has no other lawful means of subsistence may justify the inference that severe suffering will imminently follow.

3. The assessment is fact-sensitive. Relevant matters include access to shelter, food and sanitation; physical and mental resilience; health; weather; the duration of destitution; and the practical availability of charitable assistance. Shelter from the elements is ordinarily a basic amenity, particularly in winter or bad weather.

4. The state’s obligation to take measures may extend beyond reacting to individual cases. Where the number of unsupported asylum-seekers exceeds the capacity of charitable agencies, the Secretary of State must take reasonable measures to prevent Article 3 breaches. The means adopted remain a matter for executive judgment and may include direct support or assistance to charities.

5. Per Jacob LJ, the evidence established a near certainty that withdrawing support from hundreds of claimants would cause a substantial number to cross the Article 3 threshold. The absence of any adequate policy for that collective problem made the current policy unlawful. Treatment of the individual respondents under that policy was therefore also unlawful.

6. Carnwath LJ additionally found no legal error in the first-instance assessments. Judicial review remained review rather than an excluded statutory appeal, although scrutiny had to be intensive. An appellate court should not disturb a reasoned application of the correct standard unless it was plainly wrong.

7. In dissent, Laws LJ considered Article 3 a safety net confining lawful government policy only in exceptional or extreme cases. He found no exceptional feature in any respondent’s circumstances and would have allowed all three appeals.

1. Court of Appeal (Civil Division): By a majority, dismissed the Secretary of State’s three conjoined appeals: [2004] EWCA Civ 540.
2. Administrative Court: Collins J, Gibbs J and Charles J separately granted judicial review of decisions refusing asylum support to Limbuela, Tesema and Adam respectively. Neutral citations for those three judgments are not stated in the judgment.