MG (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Articles 2 and 3 ECHR may require systems, operational and investigative obligations, but their scope depends on context. A lower-level systems duty to adopt administrative safeguards is not owed merely because people receiving asylum accommodation are vulnerable or dependent on the state for basic support. Relevant considerations include dangerous activity, exclusive control, responsibility for welfare and individual autonomy. An operational duty requires a known or reasonably knowable real and immediate risk, judged without hindsight, and reasonable measures are an obligation of means. Serious violence requires an adequate criminal investigation, but a separate systemic investigation is not legally required absent an arguable Convention breach. The claim was dismissed because neither systems nor operational breach was arguable; in any event, the Scottish investigative process could satisfy any investigative obligation.

The claimant, an asylum seeker housed at the Park Inn Hotel in Glasgow, was seriously injured in a stabbing attack by another asylum seeker. He sought judicial review of the Secretary of State’s refusal to commission an independent investigation into the events and the arrangements for asylum accommodation.

He argued that the systems and operational positive obligations under article 3 ECHR were arguably breached, triggering an investigative obligation. The Secretary of State relied on the police investigation, the Scottish Fatalities Investigation Unit and the potential for a Fatal Accidents Inquiry, together with the availability of civil proceedings. The central issues were whether either positive obligation was arguably breached and whether a separate independent investigation was legally required.

The claim was dismissed. The claimant had not shown an arguable breach of the Secretary of State’s positive obligations under articles 2 or 3 ECHR, and therefore had not established a legal obligation to commission an independent investigation.

1. Systems obligation. The lower-level systems obligation is context-sensitive. The categories in which it may arise are not closed, but the underlying theme is a relevant removal or curtailment of individual autonomy. The court considered whether the accommodation system involved an inherently dangerous activity, exclusive state control, a general responsibility for welfare, or circumstances warranting an extension of the recognised categories. Housing asylum seekers in a hotel was not inherently dangerous on the facts. The claimant and Mr Adam were not detained or under the Secretary of State’s exclusive control. They retained autonomy and capacity to care for their own welfare, subject to receiving basic support and access to medical care. Their broad vulnerability and dependence on the state to avoid destitution did not create a general welfare obligation. No arguable systems breach was shown.
2. Operational obligation. This arises where a public authority knows or ought to know of a real and immediate risk of inhuman or degrading treatment from criminal acts by a third party. The assessment must exclude hindsight. If the threshold is met, the duty is to take measures within the authority’s powers which might reasonably be expected to avoid the risk. It is an obligation of means, not result. The reported threats, the information from Mr Adam’s solicitor and the events on the morning of the attack did not establish an arguable failure to take reasonable steps. The incident was recorded and communicated, follow-up was arranged, and the police were called as soon as the attack began.
3. Investigation. Serious violence required a police investigation, which had taken place and was not shown to be deficient. A police investigation would not itself examine non-criminal systemic failings. The court nevertheless held that no separate investigation was legally required because no arguable systems or operational breach had been established. Alternatively, the independent Scottish Fatalities Investigation Unit investigation, followed if appropriate by a Fatal Accidents Inquiry, could fulfil the relevant investigative functions, including any related article 3 obligation arising from Mr Adam’s death. There was no obligation to initiate a public inquiry or parallel investigation.
4. The Secretary of State’s discretion to commission a broader investigation was subject to review for Wednesbury unreasonableness, but that ground was not pursued.