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

Refusing asylum support may breach Article 3 where the claimant has no accommodation, no realistic access to food or washing, and no lawful means of support. Rough sleeping, particularly in winter, may reach the required minimum severity. The assessment must consider the claimant’s present and prospective situation, including vulnerability, health, weather, and reasonable efforts to obtain charitable assistance. A bare assertion of destitution is insufficient, but detailed medical evidence is not invariably required where the consequences of sleeping rough are matters of common sense. The Secretary of State cannot adopt a wait-and-see approach where an imminent breach is established.

The claimant, an Angolan asylum seeker, challenged the refusal of asylum support under section 55(5) of the Nationality, Immigration and Asylum Act 2002. Permission was granted only on the human-rights ground. Interim relief had provided accommodation and essential support pending determination of the claim.

The central issue was whether withdrawing support would place the claimant in a situation contrary to Articles 3 or 8 of the Convention. The court considered R(Q) v Secretary of State [2003] EWCA Civ 364, R(T) v Secretary of State [2003] EWCA Civ 1285, and Zardasht v Secretary of State [2004] EWHC 91 Admin.

1. Claim succeeded. Withdrawal of support would have left the claimant without overnight accommodation, with only remote prospects of obtaining food or washing facilities, and dependent on begging or chance assistance. That reached the Article 3 threshold described in Pretty v United Kingdom [2002] 35 EHRR 1.
2. The threshold required a minimum level of severity involving substantial physical or mental suffering, or treatment which humiliated or debased and diminished human dignity. The effect on the individual was decisive. Previous torture, ill-health, psychological effects, weather and the practical availability of charitable assistance were relevant.
3. The court had to consider both the claimant’s past experience and the situation which refusal of relief would create at the date of decision. It was not necessary to wait until the breach occurred. The Secretary of State had to act where the evidence showed an imminent breach.
4. Following R(Q) v Secretary of State [2003] EWCA Civ 364 and R(T) v Secretary of State [2003] EWCA Civ 1285, the claimant had to provide evidence of reasonable efforts to obtain support and of the resulting circumstances. General evidence of charities was insufficient to answer specific evidence that assistance was unavailable.
5. The court declined to follow all the reasoning in Zardasht v Secretary of State [2004] EWHC 91 Admin. Common sense could establish the likely health consequences of sleeping rough in winter; specific medical evidence was not always required. Mere assertion remained insufficient, but extensive detail was unnecessary.
6. The circumstances also engaged Article 8(1), although that added little to the Article 3 conclusion. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment, and leave to appeal was granted because the correct general approach was important.

This was a first-instance judicial review in the Administrative Court. Leave to appeal was granted because the court’s approach differed from that in Zardasht v Secretary of State [2004] EWHC 91 Admin, although the judge considered the result on the facts unlikely to change.