ASY & Ors v Home Office

A public authority which imposes a no-recourse-to-public-funds condition owes a low-level systems duty under article 3 to protect affected persons from imminent inhuman or degrading treatment. The duty applies irrespective of whether the person is permitted to work.

Damages are not available merely because the condition was imposed under an unlawful regime. They may be awarded where the claimant suffered inhuman or degrading treatment. They may also be available where the claimant faced an immediate risk, notified the authority, received no positive and prompt response, and suffered severe distress. Under section 8 of the Human Rights Act 1998, the court must consider all the individual circumstances, necessity for just satisfaction and causation.

Four holders of limited leave to remain were subject to conditions preventing recourse to public funds. They applied to have those conditions lifted after their financial circumstances deteriorated. The conditions were eventually lifted, but the claimants sought damages under section 8 of the Human Rights Act 1998, relying on the unlawfulness of the former administrative regime.

HHJ Ralton decided a preliminary issue in their favour and awarded pecuniary and non-pecuniary damages. On appeal, May J allowed the Home Office's appeal and set aside that decision in [2023] EWHC 196 (KB). The claimants brought a second appeal.

The central questions were whether the Home Office owed an article 3 systems duty before actual inhuman or degrading treatment occurred, and what a claimant must establish before damages can be awarded.

1. Appeal allowed on Ground 3. Article 3 positive obligations are best described as the systems duty, operational duty and investigative duty. Dividing article 3 rights into separate procedural and substantive rights introduces an unnecessary and confusing gloss, particularly in a damages claim.

2. The Home Office owed persons subject to the former no-recourse-to-public-funds regime a low-level systems duty. By imposing that condition, it potentially placed them beyond the protection of public funds when they might otherwise fall into destitution severe enough to constitute inhuman or degrading treatment. Recognising that duty did not extend an existing category of article 3 obligation.

3. The scope of article 3 is the same for citizens, visitors, asylum seekers and persons with limited leave to remain. A person's ability to work does not diminish the fundamental right. The duty identified in Limbuela arises where a claimant demonstrates an imminent prospect of conditions reaching the severity required by article 3. The administrative response must be proportionate to the immediacy of that risk.

4. It was wrong to restrict the claimants' right to having a change-of-condition application determined within a reasonable time, or to require proof that the application was wrongly decided. A claimant facing an immediate risk could rely on the systems duty even though the condition was ultimately lifted.

5. Damages may be awarded where a claimant either suffered inhuman or degrading treatment, or faced its immediate risk, notified the Home Office by a change-of-condition application, received no positive and prompt response, and suffered severe distress while awaiting resolution. Mere imposition of the condition is insufficient. Destitution alone also falls short of the article 3 threshold.

6. Section 8 of the Human Rights Act 1998 requires an individual assessment of all the circumstances. Damages must be necessary for just satisfaction, and a causal link between the violation and the loss must be proved. There is no strict liability.

7. The respondent's additional grounds were rejected. The cases were remitted to HHJ Ralton for reconsideration under the stated test. The Court approved, in principle, modest non-pecuniary awards and pecuniary damages measured by unavailable benefits, subject to proof of liability in each case.

1. Court of Appeal (Civil Division): Allowed the claimants' appeal on Ground 3 in [2024] EWCA Civ 373, rejected the respondent's additional grounds, reformulated the answer to the preliminary issue and remitted the individual claims to HHJ Ralton.
2. High Court, King's Bench Division: May J allowed the Home Office's appeal and set aside the County Court's determination of the preliminary issue in [2023] EWHC 196 (KB).
3. Bristol County Court: HHJ Ralton determined the preliminary issue in the claimants' favour and subsequently awarded pecuniary and non-pecuniary damages.