Regina v. Secretary of State for the Home Department (Appellant)ex parte Adam (FC) (Respondent) Regina v. Secretary of State for the Home Department (Appellant) ex parte Limbuela (FC) (Respondent)Regina v. Secretary of State for the Home Department (Appellant) ex parte Tesema (FC) (Respondent)(Conjoined Appeals) (HTML version)

Where legislation withdraws support from an asylum-seeker and the state also prevents that person from working, the resulting regime constitutes treatment for article 3 purposes. Article 3 creates no general duty to house the homeless, and ordinary destitution does not itself cross its high threshold.

Under section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002, support becomes mandatory when a fair and objective assessment shows an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or basic necessities. An actual breach need not have occurred. Relevant circumstances include health, age, gender, available assistance, weather and the likely duration of deprivation. Once the article 3 threshold is reached, lawful policy and proportionality cannot justify the treatment.

The three respondents were adult asylum-seekers whom the Secretary of State found not to have claimed asylum as soon as reasonably practicable. Section 55(1) of the Nationality, Immigration and Asylum Act 2002 consequently excluded them from ordinary asylum support. Each lacked adequate independent means and was prohibited from working. Mr Adam had slept outside for about a month, Mr Limbuela had slept rough and faced renewed homelessness, and Mr Tesema faced immediate eviction without money or shelter.

Collins J, Gibbs J and Charles J respectively granted judicial review. The Court of Appeal, by a majority comprising Carnwath and Jacob LJJ, dismissed the Secretary of State's appeals; Laws LJ dissented: [2004] EWCA Civ 540, [2004] QB 1440.

The common issue before the House was when section 55(5)(a) required support to be provided to avoid inhuman or degrading treatment contrary to article 3 and section 6 of the Human Rights Act 1998.

1. Disposition. The House unanimously dismissed the Secretary of State's conjoined appeals. Lord Bingham ordered that the appeals be dismissed with costs. The first-instance judges had sufficient evidence to find an imminent prospect of article 3 ill-treatment, and the Court of Appeal majority had been entitled to uphold them.
2. Nature of the statutory power. Lord Bingham, consistently with Lord Hope and Lord Brown, held that section 55(5)(a) of the Nationality, Immigration and Asylum Act 2002 left the Secretary of State with no discretion. Support was prohibited unless necessary to avoid a Convention breach. Once necessary, it became mandatory because section 6(1) of the Human Rights Act 1998 made incompatible conduct unlawful. Support could be given only to the extent required to avoid the breach.
3. Treatment attributable to the state. Lord Bingham and Lord Hope approved the conclusion in R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 that the combined regime was positive treatment for article 3 purposes. The state withheld accommodation and basic support while preventing asylum-seekers from earning their own living. Lord Scott agreed that mere failure to provide welfare would not suffice, but that this statutory combination constituted treatment.
4. Threshold and timing. Lord Bingham held that article 3 imposed a high threshold where pain or suffering was not deliberately inflicted. The duty arose when a fair and objective assessment of all relevant circumstances disclosed an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the basic necessities of life. Lord Hope emphasised that the word “avoiding” required preventive action. It was unnecessary to wait for an actual breach. Age, gender, physical and mental health, alternative support, weather, duration, rough sleeping, hunger, hygiene, humiliation and despair were relevant. Persuasive evidence of compulsory street sleeping, except perhaps for a short and foreseeably finite period, serious hunger or inability to maintain basic hygiene would ordinarily cross the threshold.
5. Absolute protection. Lord Hope, supported by Baroness Hale, rejected the suggestion that article 3 permitted a more exacting threshold or policy justification where suffering resulted from lawful government policy. Where the state was directly responsible and the severity threshold was met, the prohibition was absolute and proportionality had no part to play. Lord Brown preferred to ask whether the state was properly responsible for the threatened harm, but likewise concluded that policy could not justify deliberately reducing this group to street destitution.
6. Limits. All members accepted that article 3 created no general public duty to house homeless people or provide a minimum standard of living. Destitution under section 95(3) of the Immigration and Asylum Act 1999 was therefore insufficient by itself. The decisive question remained whether the complete state-imposed regime produced, or imminently threatened, suffering severe enough to be inhuman or degrading.

• House of Lords: The Secretary of State's conjoined appeals were dismissed unanimously, with costs: [2005] UKHL 66.
• Court of Appeal: Carnwath and Jacob LJJ, Laws LJ dissenting, dismissed the Secretary of State's appeals from all three judicial-review decisions: [2004] EWCA Civ 540, [2004] QB 1440.
• Administrative Court: Collins J granted Mr Limbuela's application, Gibbs J granted Mr Tesema's application and Charles J granted Mr Adam's application. Each held that withdrawal or refusal of support engaged, or imminently threatened to engage, article 3.