The Home Office v ASY & Ors

An unlawful administrative scheme does not, without more, create an entitlement to damages under section 8 of the Human Rights Act 1998. For persons subject to a no-recourse-to-public-funds condition, the relevant Article 3 systems duty arises when an application to lift the condition has brought destitution or imminent destitution to the Secretary of State’s attention. A violation may occur if the application is wrongly refused or dealt with unreasonably. Actual inhuman or degrading treatment need not always be proved, but a claimant must establish a breach of duty and a causal link between that breach and the claimed damage. The appeal was allowed because the claimants’ applications had been granted and no unreasonable delay was shown.

The respondents, non-British single mothers with British children, had been granted limited leave to remain subject to no-recourse-to-public-funds conditions. They claimed damages under section 8 of the Human Rights Act 1998, relying on the Divisional Court’s decision in R (W, a Child by his Litigation Friend J) v Secretary of State for the Home Department, which had declared the former scheme unlawful.

The County Court found that the respondents had procedural Article 3 rights and were entitled to damages, although they did not establish actual inhuman or degrading treatment. The Home Office appealed, challenging the existence and scope of the alleged duty, the interpretation of W, and causation.

1. Appeal allowed. The County Court’s decision on the preliminary issue was quashed. The judge had failed to identify the nature and scope of the alleged Article 3 duty and had misconstrued W.
2. The unlawful scheme identified in W did not establish a general systems duty arising when a no-recourse-to-public-funds condition was imposed. Where a person with limited leave to remain was not destitute or imminently destitute when leave was granted, imposing the condition was not unlawful. Such persons could work and could apply for the condition to be lifted if their circumstances deteriorated.
3. The relevant right was to have an application for non-imposition or lifting of the condition heard and decided within a reasonable time, and in a manner which avoided destitution reaching the level of inhuman or degrading treatment. A violation could arise where, after a Change of Conditions application had been made, the Secretary of State wrongly refused it or dealt with it unreasonably.
4. Actual inhuman or degrading treatment was not an indispensable precondition to breach of an Article 3 systems duty. The duty to act prospectively could arise before actual treatment occurred. However, the duty was engaged only in the circumstances identified above, not merely because a claimant was exposed to a risk under an unlawful scheme.
5. The authorities concerning investigative duties, including Beganovic and D, did not establish a general right to damages without a relevant substantive or systems breach. DMA was materially different because the Secretary of State had accepted that the claimants were destitute and had a duty to provide accommodation.
6. Section 8 damages required a relevant unlawful act, satisfaction of the statutory conditions for an award, and a causal link between the violation and the damage claimed. The respondents’ applications had been granted, and no wrongful refusal or unreasonable delay was shown. Their asserted loss therefore lacked the necessary causal connection.
7. The judge’s assessment of just satisfaction was not otherwise considered. The matter was to be addressed further only if any residual issue remained concerning the individual applications.

• High Court (King’s Bench Division): Appeal from the Bristol County Court allowed. The County Court’s decision on the preliminary issue was quashed.
• Bristol County Court: HHJ Ralton found for the claimants on the preliminary issue and subsequently awarded compensation.