ASY & Ors v Home Office

The Court of Appeal held that a low-level systems duty under Article 3 ECHR can arise in respect of persons granted limited leave to remain with a no recourse to public funds (NRPF) condition. The court applied the established taxonomy of Article 3 positive obligations (systems, operational and investigative) and concluded that the Home Office, having put claimants in a position where public funds were not available, could owe a systems duty to prevent a person falling into destitution so serious as to amount to inhuman or degrading treatment. The court explained that damages under section 8 of the Human Rights Act 1998 can be awarded where a claimant has either suffered inhuman or degrading treatment or was at immediate risk of such treatment, notified the Home Office by making a change of condition (CoC) application, did not receive a positive and prompt response and suffered severe distress: damages require a causal link and a finding that an award is necessary to afford just satisfaction.

The court allowed the appeal on Ground 3 (systems duty) and remitted the cases to the trial judge to determine liability and, if appropriate, quantum in each individual case applying the principles it articulated. The court rejected the proposition that no damages claim can ever arise unless there is an actual finding of inhuman or degrading treatment, but emphasised the fact-specific nature of any award and the mandatory s.8 HRA threshold that damages be necessary to afford just satisfaction.

This appeal concerned four claimants who had been granted limited leave to remain subject to no recourse to public funds (NRPF). Each applied to the Home Office for the NRPF condition to be lifted (a change of condition, or CoC application) and the applications were accepted only after a period during which the Home Office contemporaneously assessed the claimants as destitute. The claimants sued for damages under section 8 of the Human Rights Act 1998 for breaches of their Article 3 ECHR rights arising from the operation of the old NRPF regime and accompanying Home Office guidance.

Nature of the claim: damages under s.8 HRA 1998 for alleged breaches of Article 3 (the right not to be subjected to inhuman or degrading treatment) caused or risked by the application of the old NRPF regime and the Home Office's handling of CoC applications.

Procedural and appellate history: at first instance HHJ Ralton (Bristol County Court) found for the claimants and awarded modest pecuniary and non-pecuniary damages; May J in the High Court ([2023] EWHC 196 (KB)) allowed the Home Office's appeal and set aside that decision; permission to appeal to the Court of Appeal was subsequently granted.

Issues framed:

• Whether a claimant subject to NRPF can recover damages for breach of Article 3 absent proof of actual inhuman or degrading treatment (IDT).
• What is the nature and scope of any Article 3 duty owed where NRPF is imposed and CoC applications are made.
• How section 8 HRA 1998 applies to awards of damages in this context (causation, necessity to afford just satisfaction and fact-specific assessment).

Court of Appeal reasoning (concise): the court adopted the systems/operational/investigative taxonomy of Article 3 positive obligations. It concluded that the Home Office owed a low-level systems duty in respect of persons placed in a position by NRPF where public funds were withheld, because the policy could put claimants at risk of destitution amounting to IDT. The court emphasised that an award of damages under s.8 requires (i) a finding of unlawful act or prospective unlawfulness (a breach or imminent breach of Article 3), (ii) a causal link between the violation and the damage, and (iii) a conclusion that damages are necessary to afford just satisfaction after taking account of all circumstances. The court held that damages can follow where a claimant either suffered IDT or was at immediate risk of IDT, notified the Secretary of State by making a CoC application, did not receive a positive and prompt response and suffered severe distress in the period before resolution. The court rejected a rule that damages are never available unless IDT actually occurred, but stressed the fact-sensitive inquiry and the mandatory s.8 threshold.

Disposition: the appeal succeeded on Ground 3; the Court remitted the cases to the county court judge (HHJ Ralton) to determine each claimant’s position and any award of damages, applying the legal tests set out in the judgment.

Appeal allowed in part. The Court of Appeal allowed the claimants’ appeal on Ground 3, holding that a low-level Article 3 systems duty can arise where the imposition of NRPF places a person at risk of destitution amounting to inhuman or degrading treatment; damages under section 8 HRA 1998 may be available where the claimant either suffered such treatment or was at immediate risk, made a CoC application, did not receive a positive and prompt response and suffered severe distress. The court remitted the individual cases to the trial judge to apply these principles and determine liability and any awards of damages.

County Court (Bristol) – HHJ Ralton: preliminary issue answered for the claimants and modest damages awarded (judgments dated 28 October 2021 and 19 January 2022). Permission to appeal initially refused but then granted (Foxton J, 6 April 2022). High Court (King's Bench) – May J: allowed the Home Office's appeal and set aside HHJ Ralton's decision ([2023] EWHC 196 (KB)). Permission to appeal to the Court of Appeal granted (Whipple LJ, 7 August 2023). Court of Appeal – appeal heard and determined (this judgment) [2024] EWCA Civ 373.