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

Support under section 55(5) of the Nationality, Immigration and Asylum Act 2002 is not required merely because an asylum seeker is destitute, homeless or dependent on charity. The claimant must establish, on detailed evidence, that support is necessary to prevent treatment contrary to Article 3 and that the condition is verging on the severity identified in Pretty v United Kingdom. This requires a discernible imminence of severe treatment, within a very short period, and clear evidence that charitable assistance, help from friends or family, and the claimant’s own efforts cannot prevent it. The assessment is individual and fact-sensitive. General assertions about homelessness, lack of money or intermittent food are insufficient without particulars concerning accommodation, food, hygiene, health and available assistance.

The claimant, a 20-year-old asylum seeker from Iraq, challenged the withdrawal of asylum support after he had failed to apply for asylum as soon as reasonably practicable after arrival. He relied on section 55(5) of the Nationality, Immigration and Asylum Act 2002, asserting that he had become homeless, had no money and had only intermittent access to food. The central issue was whether the evidence showed that support was necessary to avoid treatment contrary to Article 3 of the ECHR because his condition was verging on the required degree of severity.

1. Application dismissed. The claimant failed to establish that his condition was verging on treatment contrary to Article 3. Permission to appeal was refused, interim relief was not continued, and the usual costs order was made, with the claimant’s liability postponed under his funding arrangements.
2. Section 55(5) requires the claimant to satisfy the Secretary of State that support is necessary to avoid inhuman or degrading treatment. The claimant must show that charitable support has not been provided and that he is incapable of fending for himself. Assistance from friends, family and other sources is relevant.
3. The phrase “verging on” requires a discernible imminence that the relevant severity is impending, meaning within a very short period. It must also be clear that no other means, including charity or self-help, can prevent that outcome.
4. The common circumstances of asylum seekers, including homelessness, lack of income, few possessions, limited English and vulnerability, do not automatically satisfy the threshold. Their effect must be proved in relation to the particular claimant. Physical or mental illness, disability and age may materially affect the assessment and should be stated clearly and supported by independent evidence where possible.
5. The claimant’s evidence lacked sufficient detail about food, personal hygiene and access to assistance. Since the burden rested on him, the court was entitled to infer that the available food had prevented starvation or serious debilitation. The evidence therefore did not establish the required severity.
6. Practitioners should make detailed enquiries before bringing an application. Evidence should address approaches to day centres and refugee agencies, the assistance sought, any refusal, and practical barriers such as transport. Bare assertions of destitution are inadequate.

First-instance judicial review. The judgment states that the relevant principles had been established in Court of Appeal decisions, but no earlier decision in this claimant’s litigation is identified.