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

The House of Lords held that section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 must be read with section 6 of the Human Rights Act 1998: where withdrawal of asylum support under section 55(1) creates an imminent prospect that a claimant will suffer inhuman or degrading treatment within the meaning of article 3 ECHR, the Secretary of State is required to provide or arrange support to the extent necessary to avoid a breach. Section 95 of the Immigration and Asylum Act 1999 defines destitution but destitution alone does not automatically engage article 3; the relevant threshold is whether, on a fair and objective assessment, there is an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. The decision to provide support under section 55(5)(a) is therefore tightly confined to what is necessary to avoid an article 3 breach; where that necessity exists the Secretary of State has no discretion and must act.

These conjoined appeals concerned three asylum-seekers (Adam, Limbuela and Tesema) who had been refused conventional asylum support under section 55(1) of the Nationality, Immigration and Asylum Act 2002 because they were held not to have claimed asylum as soon as reasonably practicable. Each challenged the Secretary of State by judicial review claiming that section 55(5)(a) obliged the Secretary of State to provide support to avoid a breach of their Convention rights under article 3 ECHR.

Procedural history: All three obtained interim reliefs and permission for judicial review in the Administrative Court; the Secretary of State appealed and the Court of Appeal dismissed the appeals ([2004] EWCA Civ 540, [2004] QB 1440). The appeals came to the House of Lords by way of permission to appeal.

Issues framed:

• whether the denial of support under section 55(1) constitutes "treatment" for article 3 purposes;
• if so, whether the deprivation can attain the high threshold of "inhuman or degrading treatment" and when the duty under section 55(5)(a) to provide support arises; and
• how to balance the statutory scheme (sections 95 and 98 of the 1999 Act and section 55 of the 2002 Act) with the absolute prohibition in article 3 as incorporated by section 6 of the Human Rights Act 1998.

Reasoning: The Lords concluded that withdrawal of support under section 55(1), coupled with legislative restrictions preventing asylum-seekers from working, is "treatment" within the meaning of article 3 because it is an intentionally inflicted state measure and the state is directly responsible for its consequences. Article 3 is absolute, but it requires that the inflicted suffering attain a minimum level of severity. The court adopted a contextual, fact-sensitive approach: the Secretary of State's duty under section 55(5)(a) arises when, on a fair and objective assessment of all relevant facts (age, health, available alternatives, weather, period of privation, etc.), there is an imminent prospect of serious suffering resulting from denial of shelter, food or the most basic necessities. The duty is to act to the extent necessary to avoid the breach; it is not triggered by mere destitution as defined by section 95(3) unless destitution is on the verge of crossing into inhuman or degrading treatment. Applying those principles to the facts, the House agreed with the judges below that each appellant had produced sufficient evidence that an imminent prospect of inhuman or degrading treatment existed, and dismissed the appeals.

Wider context: The Lords emphasised that the ruling is confined to the statutory and Convention framework: Parliament deliberately preserved the public authority duty under the Human Rights Act and the Secretary of State must exercise the limited power in section 55(5)(a) to avoid article 3 breaches. No broad positive welfare entitlement was created beyond what is necessary to avert an article 3 violation.

Appeals dismissed. The House held that withdrawal of support under section 55(1) can constitute "treatment" under article 3 ECHR and that section 55(5)(a) obliges the Secretary of State to provide support when, on a fair and objective assessment, there is an imminent prospect that denial of shelter, food or basic necessities will cause inhuman or degrading treatment; in such cases the Secretary of State must act to the extent necessary to avoid the breach, but the duty is confined to what is required to avert the article 3 violation.

On appeal from the Court of Appeal: R (Adam; Limbuela; Tesema) v Secretary of State for the Home Department, Court of Appeal [2004] EWCA Civ 540, [2004] QB 1440. Earlier judgments at first instance in the Administrative Court granted interim relief and permission for judicial review on the section 55(5)(a) issue; the Court of Appeal dismissed the Secretary of State's appeals and the House of Lords dismissed the subsequent appeals from that decision.