Guveya, R (on the application of) v National Asylum Support Service

A policy not to enforce removal of failed asylum seekers does not, without more, make voluntary return unreasonable or require the provision of accommodation and support. Where the Secretary of State confirms that non-enforcement is based on political rather than safety concerns, the court must proceed on that basis. Section 4 support is a safety net for persons unable to leave or return, not for a person whom it is reasonable to expect to leave voluntarily. Article 3 is not engaged merely because a person who has no lawful basis to remain chooses not to return and consequently lacks food or accommodation.

The claimant, a failed Zimbabwean asylum seeker, challenged NASS’s refusal on 23 January 2004 to provide accommodation and support under section 4(4) of the Immigration and Asylum Act 1999. His asylum claim and all appeal rights had been exhausted. He argued that the Government’s policy of not enforcing removal to Zimbabwe made voluntary return unreasonable, brought him within the Hard Cases Support policy or section 4, and required support to prevent a breach of article 3 of the European Convention on Human Rights.

The central issues were whether the refusal misapplied the published policy or section 4, and whether the claimant’s destitution engaged a positive article 3 obligation.

1. The claim for judicial review failed. The Secretary of State was entitled to conclude that the claimant could reasonably be expected to return voluntarily to Zimbabwe. The policy of non-enforcement did not establish that return was unsafe or that refusal to return was reasonable.

2. The court accepted the Secretary of State’s express assurance that the non-enforcement policy was adopted on political, rather than legal or safety, grounds. The court could not infer from that policy that the Secretary of State considered return unsafe. The adjudicator had also found that return was not unsafe for this claimant, and that factual conclusion could not be gainsaid in judicial review proceedings.

3. The purpose of section 4 of the Immigration and Asylum Act 1999 is to provide a safety net for persons unable to return or leave forthwith. That purpose is not served where the claimant can reasonably be expected to leave voluntarily. The non-enforcement policy was therefore neither an exceptional circumstance requiring support nor evidence that the policy had been applied unlawfully.

4. The article 3 claim also failed. Following the approach in R (Q and others) v Secretary of State, endorsed in Secretary of State v Limbuela and others, and applied in R (K) v Lambeth London Borough Council and Secretary of State, the claimant was not permitted by law to remain in the United Kingdom. No state action compelled or permitted him to remain. His plight resulted from his choice not to leave, so the denial of support did not constitute treatment by the United Kingdom for article 3 purposes.

   Permission to appeal was refused by the judge; the claimant was entitled to taxation of costs.

This was a first-instance judicial review in the Administrative Court. The judgment records interim relief granted by Burton J on 26 February 2004 and renewed by Fulford J on 3 March 2004. Mr Justice Moses refused permission to appeal, leaving the claimant to apply to the Court of Appeal.