- This is an appeal
from the judgment of Collins J dated 19 February 2003. The issues that it
raises all relate, in one way or another, to the efficacy of section 55 of
the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), which came
into force on 8 January of this year. Before that date, any asylum seeker
who had no means of obtaining adequate accommodation or who could not meet
his other essential living needs was likely to look to the Secretary of State
for assistance. Under the legislative scheme, as it had developed, he and
he alone had the power to provide such persons with assistance. Section 55
of the 2002 Act now provides that the Secretary of State ‘may not provide
or arrange for the provision of support’ to a person making a claim for asylum
where he ‘is not satisfied that the claim was made as soon as reasonably practicable
after the person’s arrival in the United Kingdom’. Collins J had before him
applications for judicial review by six asylum seekers whose claims for support
had been refused on the ground that they had failed to satisfy the Secretary
of State that they had advanced their claims for asylum as soon as reasonably
practicable. Collins J allowed those applications and quashed the decisions,
primarily on the grounds that the procedure adopted in each case was not fair.
The Secretary of State appeals against his decision. We have permitted the
Joint Council for the Welfare of Immigrants and Liberty to make a joint intervention
by short oral and written submissions. The cases have been treated as test
cases.
- Had the provision
of section 55 of the 2002 Act gone no further than that which we have quoted
above, it would have raised two of the issues with which Collins J had to
grapple: (i) what is meant by reasonably practicable and (ii) what procedural
safeguards does the section require? The issue might, however, have arisen
of whether the provision was compatible with the European Convention on Human
Rights (‘the Convention’), as applied by the Human Rights Act 1998. In the
event that issue does not arise for section 55(5) of the 2002 Act provides
that the section shall not prevent ‘the exercise of a power by the Secretary
of State to the extent that this is necessary for the purpose of avoiding
a breach of a person’s Convention rights (within the meaning of the Human
Rights Act 1998)’.
- This raises the
following conundrum. On the one hand section 55(1) prohibits the Secretary
of State from providing support to persons who are destitute, but on the other
hand section 55(5) permits him to provide support in so far as this is necessary
to prevent a breach of an applicant’s Convention rights. Article 3 of the
Convention provides that no one shall be subjected to ‘inhuman or degrading
treatment’ and section 6 of the Human Rights Act 1998 forbids the Secretary
of State to act incompatibly with the Convention rights. Can the Secretary
of State refuse support to the destitute without thereby subjecting them to
inhuman treatment? If there are some circumstances in which he can do so,
how are they to be defined and what procedure is required to make sure that
he does not stray outside them? A similar issue arises in relation to Article
8, which provides that everyone has the right to his private and family life
and his home. Will refusal of assistance to the destitute infringe this right?
Collins J held that there was a potential tension between section 55(1) and
both Article 3 and Article 8.
- The task of any
court when faced with issues of statutory construction, such as those which
arise in this case, is to deduce and give effect to the intention of Parliament.
The judge has no discretion of his own. Rules of law prescribe what can and
what cannot be considered when seeking to interpret a statute. The starting
point must always be the words of the statute itself, but where there is any
uncertainty there is other material to which it is legitimate to have regard
and principles of construction which fall to be applied.
- This appeal, which
is concerned with the meaning and application of a single section of a statute,
raises difficult and important issues, as is demonstrated by the fact that
the argument before us, of the Attorney-General and Mr Pannick QC on the one
hand and Mr Nicholas Blake QC and Mr Rabinder Singh QC on the other, lasted
three and a half days. The judgment of Collins J covered 34 pages of transcript.
The approach of Collins J to his task cannot be faulted and we commend the
care with which, in his lengthy judgment, he addressed the difficult issues
before him.
Legislative
History
- In 1986 the Social
Security Act introduced a regime under which income support could be claimed
by those with no or minimal income. Under this regime, asylum seekers who
were awaiting the determination of their claims were entitled to income support.
In 1993 the Asylum and Immigration Appeals Act first provided express statutory
protection for asylum seekers, including protection against refoulement pending
the determination of their claims. In 1996 Regulations were introduced which
purported to restrict entitlement to income support to those asylum seekers
who claimed asylum on entry into the United Kingdom. In R v Secretary of State
for Social Security ex parte Joint Council for the Welfare of Immigrants [1997]
1 WLR 275 the majority of the Court of Appeal held that the Regulations were
ultra vires in that they rendered nugatory the rights conferred by the 1993
Act on ‘in-country’ applicants for asylum. At p292 Simon Brown LJ commented:
"After all, the
Act of 1993 confers on asylum seekers fuller rights than they had ever previously
enjoyed, the right of appeal in particular. And yet these Regulations for
some genuine asylum seekers at least must now be regarded as rendering these
rights nugatory. Either that, or the Regulations necessarily contemplate
for some a life so destitute that to my mind no civilised nation can tolerate
it. So basic are the human rights here at issue that it cannot be necessary
to resort to the European Convention on Human Rights to take note of their
violation. Nearly 200 years ago Lord Ellenborough C.J in Reg v Inhabitants
of Eastbourne (1803) 4 East 103, 107 said:
‘As to there
being no obligation for maintaining poor foreigners before the statutes
ascertaining the different methods of acquiring settlements, the law of
humanity, which is anterior to all positive laws, obliges us to afford them
relief, to save them from starving;’
True, no obligation
arises under Article 24 of the Convention of 1951 until asylum seekers are
recognised as refugees. But that is not to say that up to that point their
fundamental needs can properly be ignored. I do not accept they can. Rather
I would hold it unlawful to alter the benefit regime so drastically as must
inevitably not merely prejudice, but on occasion defeat, the statutory right
of asylum seekers to claim refugee status. If and when that status is recognised,
refugees become entitled under Article 24 to benefit rights equivalent to
nationals. Not for one moment would I suggest that prior to that time their
rights are remotely the same; only that some basic provision should be made,
sufficient for genuine claimants to survive and pursue their claims."
He concluded
his judgment at p293:
"Parliament cannot
have intended a significant number of genuine asylum seekers to be impaled
on the horns of so intolerable a dilemma: the need either to abandon their
claims to refugee status or alternatively to maintain them as best they
can but in a state of utter destitution. Primary legislation alone could
in my judgment achieve that sorry state of affairs."
- In response to
this judgment, section 11 of the Asylum and Immigration Act 1996 expressly
conferred the power to make Regulations excluding asylum seekers from entitlement
to income support. Under the provisions of that Act, or of subordinate legislation
made under it, asylum seekers who did not claim asylum at the point of entry
lost all assistance to public housing benefit or social security benefits.
In R v Westminster City Council ex parte M (1997) 1 CCLR 85 the Court of Appeal
held that asylum seekers thus deprived of the right to benefits were still
entitled to relief under section 21(1)(a) of the National Assistance Act 1948,
as amended. This section provided that local authorities could provide residential
accommodation for persons ‘who by reason of age, illness, disability or other
circumstances are in need of care and attention which is not otherwise available
to them’. Giving the judgment of the Court, Lord Woolf MR held at p94:
"The destitute
condition to which asylum seekers can be reduced as a result of the 1996
Act coupled with the period of time which, despite the Secretary of State’s
best efforts, elapses before their applications are disposed of means inevitably
that they can fall within a class who local authorities can properly regard
as being persons whose needs they have a responsibility to meet by the provision
of accommodation under section 21(1)(a). The longer the asylum seekers remain
in this condition the more compelling their case becomes to receive assistance
under the subsection."
Lord Woolf added
at p95:
"Asylum seekers
are not entitled merely because they lack money and accommodation to claim
they automatically qualify under section 21(1)(a). What they are entitled
to claim (and this is the result of the 1996 Act) is that they can as a
result of their predicament after they arrive in this country reach a state
where they qualify under the subsection because of the effect upon them
of the problems under which they are labouring. In addition to the lack
of food and accommodation is to be added their inability to speak the language,
their ignorance of this country and the fact they have been subject to the
stress of coming to this country in circumstances which at least involve
their contending to be refugees. Inevitably the combined effect of these
factors with the passage of time will produce one or more of the conditions
specifically referred to in section 21(1)(a). It is for the authority to
decide whether they qualify. In making their decision, they can bear in
mind the wide terms of the Direction to which reference has already been
made, as contrary to Mr Beloff’s submission the direction is not ultra vires
and gives a useful introduction to the application of the subsection. In
particular the authorities can anticipate the deterioration which would
otherwise take place in the asylum seekers condition by providing assistance
under the section. They do not need to wait until the health of the asylum
seeker has been damaged."
This passage
has particular relevance to one of the issues with which we have to grapple
- is it compatible with Article 3 of the Convention to provide no assistance
to those who are destitute on the basis that Article 3 will not be engaged
unless and until that destitution results in ill-health or some other similarly
severe adverse consequence?
- The effect of
ex parte M was set at nought by section 116 of the Immigration and Asylum
Act 1999 (‘the 1999 Act’). This amended section 21 of the 1948 Act by adding
subsection 1A, which provides:
"A person [subject
to immigration control (which includes asylum seekers)] may not be provided
with residential accommodation under subsection 1(a) if his need for care
and attention has arisen solely -
(a) because he
is destitute, or
(b) because of
the physical effects, or anticipated physical effects, of being destitute"
- However, the 1999
Act introduced a new regime under which the Secretary of State undertook responsibility
for the provision of support to asylum seekers. Section 95 of the 1999 Act
provides:
"95 Persons
for whom support may be provided
(1) The Secretary
of State may provide, or arrange for the provision of, support for -
(a) asylum-seekers,
or
(b) dependants
of asylum-seekers,
who appear to
the Secretary of State to be destitute or to be likely to become destitute
within such period as may be prescribed.
(2) In prescribed
circumstances, a person who would otherwise fall within subsection (1) is
excluded.
(3) For the purposes
of this section, a person is destitute if -
(a) he does not
have adequate accommodation or any means of obtaining it (whether or not
his other essential living needs are met); or
(b) he has adequate
accommodation or the means of obtaining it, but cannot meet his other essential
living needs."
- The Secretary
of State set up the National Asylum Support Service (‘NASS’) to administer
this regime.
- The numbers of
those who manage, in one way or another, to enter this country and who then
or subsequently claim asylum has grown significantly in recent years and the
annual cost of providing support to asylum seekers has grown to £1 billion
together with the considerable additional cost of providing them with legal
aid. Section 55 of the 2002 Act is a measure by which Parliament has sought
to reduce that cost. The relevant provisions of that section read as follows:
"Late claim
for asylum: refusal of support
(1) The Secretary
of State may not provide or arrange for the provision of support to a person
under a provision mentioned in subsection (2) if -
(a) the person
makes a claim for asylum which is recorded by the Secretary of State, and
(b) the Secretary
of State is not satisfied that the claim was made as soon as reasonably
practicable after the person’s arrival in the United Kingdom.
(2) The provisions
are -
(a) sections
4, 95 and 98 of the Immigration & Asylum Act 1999 (c.33) (support for
asylum-seeker &c), and
(b) sections
17 and 24 of this Act (accommodation centre).
(3) An authority
may not provide or arrange for the provision of support to a person under
a provision mentioned in subsection (4) if -
(a) the person
has made a claim for asylum, and
(b) the Secretary
of State is not satisfied that the claim was made as soon as reasonably
practicable after the person’s arrival in the United Kingdom.
(4) The provisions
are -
(a) section 29(1)(b)
of the Housing (Scotland) Act 1987 (c.26) (accommodation pending review),
(b) section 188(3)
or 204(4) of the Housing Act 1996 (c.52) (accommodation pending review or
appeal), and
(c) section 2
of the Local Government Act 2000 (c.22) (promotion of well-being).
(5) This section
shall not prevent -
(a) the exercise
of a power by the Secretary of State to the extent necessary for the purpose
of avoiding a breach of a person’s Convention rights (within the meaning
of the Human Rights Act 1998),
(b) the provision
of support under section 95 of the Immigration & Asylum Act 1999 (c.33)
or section 17 of this Act in accordance with section 122 of that Act (children),
or
(c) the provision
of support under section 98 of the Immigration & Asylum Act 1999 or
section 24 of this Act (provisional support) to a person under the age of
18 and the household of which he forms part.
(9) For the purposes
of this section "claim for asylum" has the same meaning as in section 18.
(10) A decision
of the Secretary of State that this section prevents him from providing
or arranging for the provision of support to a person is not a decision
that the person does not qualify for support for the purpose of section
103 of the Immigration & Asylum Act 1999 (appeals)."
- The effect of
subsection (10) is to preclude the right of appeal against the Secretary of
State’s decision to an asylum support adjudicator. Thus an application for
judicial review was the only remedy open to the asylum applicants in this
case.
The Issues
raised by Section 55
- Section 55 of
the 2002 Act requires the Secretary of State, when faced with a request for
support from an asylum seeker, to decide through his officials the following
matters:
- Is he satisfied
that the asylum seeker claimed asylum ‘as soon as reasonably practicable’?
If not:
- Is it necessary
to afford the asylum seeker support in order to avoid a breach of his
Convention rights?
The immediate
issue raised by this appeal is whether the Secretary of State followed a
fair procedure in order to decide these matters. Collins J decided that
he did not. If he was correct that was sufficient reason to quash the decisions.
- Collins J further
considered the test of what is ‘reasonably practicable’ in the context of
section 55. He also considered how to resolve the tension which he identified
between Articles 3 and 8 of the Human Rights Convention and the refusal of
support to asylum seekers who are destitute. We have to consider whether the
conclusions that he reached on these issues were correct.
- The last issue
that arises is whether the absence of any right of appeal against the decision
of the Secretary of State under section 55 is in conflict with the requirements
of Article 6 of the Convention.
- Before one can
consider the requirements of procedural fairness in relation to section 55
of the 2002 Act, it is necessary to identify the nature and ambit of the factual
enquiry that the Secretary of State has to carry out when faced with an application
for support by an asylum seeker. As we understand it, such an application
is usually made, expressly or by implication, at the same time as the claim
to asylum itself. Two questions arise. The first is the nature of the test
of whether the Secretary of State is satisfied that the asylum seeker has
claimed asylum ‘as soon as reasonably practicable’ after arrival in the United
Kingdom. The second is as to the circumstances in which, if at all, it is
‘necessary’ for the Secretary of State to provide or arrange for the provision
of support to an asylum seeker ‘for the purpose of avoiding a breach of [that]
person’s Convention rights’.
‘As soon as
reasonably practicable’
- The first issue
of statutory interpretation raised by this appeal is the precise meaning to
be attached to the phrase ‘as soon as reasonably practicable’. The Attorney-General’s
primary submission was that the meaning of this phrase was perfectly clear
and that there was no need to look beyond the natural meaning of the words
in order to interpret them. ‘Practicable’ meant ‘possible’. For those arriving
at an airport it would almost always be practicable to claim asylum at the
point of entry, the airport itself. In the vast majority of such arrivals
it would be ‘reasonably practicable’ to claim asylum at the airport. The addition
of the adverb ‘reasonably’ catered for the exceptional case where, by reason
of special circumstances, it was reasonable for an asylum seeker not to claim
asylum immediately upon arrival. By way of example, he accepted that an asylum
seeker who was too traumatised to think clearly, or whose will was overborne
by threats, might fall into this exceptional category. The test of whether
there was good reason not to claim asylum as soon as practicable was an objective
one.
- Mr Blake, for
the Respondents, submitted that the test of what was reasonable had to take
account of the subjective state of mind of the asylum seeker. An asylum seeker
would often rely utterly upon the agent who had made arrangements to get him
or her into the United Kingdom. Such arrangements usually involved false documents
and infringed our criminal law. Agents were concerned to get their charges
through immigration without detection, so that by the time a claim for asylum
was made, the agent could make himself scarce. If an agent told an asylum
seeker not to claim asylum at the port of entry, and the asylum seeker complied
with that instruction, it could not normally be said to have been ‘reasonably
practicable’ for the asylum seeker to claim asylum at the airport.
- Mr Singh, for
the Intervenors, also submitted that it was necessary to have regard to any
advice given by the agent when deciding whether it had been ‘reasonably practicable’
for an asylum seeker to claim asylum at an earlier point in time. He advanced
the following test: In all the circumstances of the case, could the individual
asylum seeker reasonably have been expected to claim asylum any earlier than
he or she did?
- The Attorney-General,
for the Appellant, responded to these submissions by arguing that, if they
were correct, they would effectively defeat the object of section 55. Agents
would instruct asylum seekers not to claim asylum until after they had cleared
immigration in the confident knowledge that this would cause them no prejudice.
- The qualification
of ‘practicable’ by ‘reasonably’ undoubtedly raises a problem of construction.
The problem can be illustrated by the following somewhat confusing guidance
issued to caseworkers by NASS:
"4.1 The burden
of proof is on the applicant for support to show that it was not reasonably
practicable to have made their asylum claim sooner. Those who apply for
asylum immediately on arrival to an Immigration Officer will be able to
access asylum support, provided they otherwise qualify. If the person fails,
without good reason, to make an asylum claim immediately at the port of
arrival then the expectation is that support will be refused.
4.2 There may
however be a number of cases where a person has been given temporary admission
by an Immigration Officer and then subsequently applies for asylum to the
Immigration Officer at a port. In such circumstances NASS must consider
whether the individual had good reason for not applying as soon as reasonably
practicable.
4.3 Those who
claim asylum in country following a significant change in circumstances
in their country of origin (such as a military coup) will be supported by
NASS provided they make their asylum claim at the earliest possible opportunity
following that change of circumstance. Case-workers must decide whether
a reason put forward for the timing of an asylum application is indeed a
significant change of circumstance."
- It seems to us
that in relation to this issue of construction it is relevant to consider
the object or objects of section 55. The meaning of ‘as soon as reasonably
practicable’ must have regard to the context. For this reason it is particularly
relevant to consider the extent to which a failure to claim asylum at the
earliest possible opportunity is likely to be detrimental to the objects of
the section.
- Collins J recorded
that a considerable amount of evidence was put before him about the background
leading to, the reasons for and the purpose of section 55. He commented that
some of this had been deployed to explain the mischief which the section was
designed to remedy and some to try to influence the construction of the section.
Section 55 was introduced, by amendment, in the House of Lords. Some of the
material to which Collins J referred consisted of statements by Lord Filkin,
who introduced the amendment in the House of Lords, subsequent statements
by the Secretary of State in the House of Commons, briefing notes, a written
statement by the Minister, Ms Beverley Hughes, following the Royal Assent
to the 2002 Act and a witness statement by Mr Christopher Mace, the Deputy
Director General in the Immigration and Nationality Directorate of the Home
Office (IND).
- No point appears
to have been taken before Collins J as to the admissibility of this material.
We do not believe that most of this was admissible on the correct application
of Pepper v Hart [1993] AC 539 at 593 or otherwise - see the remarks of Lord
Bingham of Cornhill in R v Environment Secretary, ex p. Spath Holme Ltd [2001]
2 WLR 15 at pp35-6, [2001] 2 AC 349 at 391-2 and of Lord Hoffmann in Robinson
v Secretary of State for Northern Ireland and Others [2002] UKHL 32 at paragraphs
39 to 40.
- Before us statistical
data were relied upon by way of background. Insofar as figures have been agreed,
we can properly draw from them such inferences as logically flow from them.
Unfortunately there was not agreement as to the accuracy of all the figures.
There was no dispute, however, as to the broad overall picture. This is reflected
by the figures given to us by the Attorney-General in his final speech. In
2002 19% of applicants were granted indefinite leave to remain on grounds
which included recognition of refugee status under the Refugee Convention.
A further 27% were granted exceptional leave to remain on various grounds.
There was not agreement as to the comparative success of port of entry asylum
applications and in-country applications for asylum, but the statistics did
not suggest that the difference was significant. They further demonstrated
that, numerically, in-country appeals significantly exceeded port of entry
applications.
- Mr Mace’s statement
set out a number of reasons for the introduction of section 55. The Attorney-General
accepted that this was not a legitimate way of proving the objects of the
legislation, but relied upon them by way of submission. Insofar as the statement
reflected what can be legitimately deduced from the wording of section 55
and the background statistics, we consider that this course was legitimate.
Neither Mr Blake nor Mr Singh objected to it. On this basis, we consider that
the primary object of section 55 can properly be treated as preventing (1)
those who are not genuine asylum seekers and (2) those who are not in fact
in need of state support from obtaining assistance. The section assumes that
genuine asylum seekers can be expected to seek asylum on arriving in this
country, not to go off and do something else before seeking support. Furthermore,
those who do not claim asylum and support on arrival, but do so later, will
ordinarily have demonstrated an ability to subsist without support in the
interim. Section 55 is designed to ensure that the circumstances in which
support is sought will be circumstances in which support is likely to be needed.
- While the considerations
set out above demonstrate good reason to restrict support to those who apply
for asylum reasonably promptly upon arrival, they do not demonstrate a necessity
for the application to be made at the first possible opportunity. In this
context the decision in R v Uxbridge Magistrates’ Court, ex parte Adimi and
others [2001] 1 QB 667 has some relevance. That case involved an asylum seeker
who had entered the country on a false passport. This fact was discovered
at the point of entry and he was detained. Only then did he claim asylum.
Charged with a criminal offence involving the use of false documents he sought
to rely on Article 31 of the Refugee Convention. This provided protection
for refugees who presented themselves ‘without delay to the authorities’.
In considering whether he qualified for such protection, Simon Brown LJ quoted
at p679, as demonstrating the mischief against which this requirement was
aimed, the following passage from Grahl-Madsen, The Status of Refugees in
International Law (1972), vol II p219:
"exemption from
penalties according to Article 31(1) may not be claimed if the refugee has
chosen to stay in a country of refuge for a protracted period without presenting
himself to the authorities. If he eventually learns that he is about to
be discovered and for that reason gives himself up, he cannot rely on the
provisions of Article 31(1)."
He went on to
quote from the previous page:
"A person crossing
the frontier illegally may have reasons for not giving himself up at the
nearest frontier control point or to a local authority in the border zone.
If he succeeds in finding his way to the capital or to another major city
and presents himself to the authorities there, he must be deemed to have
complied with the requirement, and the same ought to apply if he was unsuccessful,
but could show that such was his intention."
Simon Brown LJ
went on to conclude:
"If Mr Adimi’s
intention was to claim asylum within a short time of his arrival even had
he successfully secured entry on his false documents, then I would not think
it right to regard him as having breached this condition."
- The Attorney-General
rightly submitted that this decision had no direct bearing on the issue of
construction in the present case. It does, however, demonstrate the degree
of delay in claiming asylum that may be acceptable where the object of the
exercise is to distinguish between the person who enters this country bent
on seeking asylum and the person who intends to remain without doing so.
- Mr Mace’s statement
advances the proposition that, by requiring asylum seekers to claim asylum
at the port of entry, section 55 makes it less easy for facilitators who accompany
them to escape detection and that this will deter them from bringing asylum
seekers to the United Kingdom. We are not aware of any admissible material
which advances this proposition as an explanation of section 55 and it is
not a point that the Attorney-General advanced with any vigour, if he advanced
it at all. There is no valid basis for approaching the construction of section
55 on the premise that this was one of the objects of that section.
- The Attorney-General
did, however, advance a reason why it was desirable that asylum seekers should
claim asylum at the port of entry, which we are able to accept, for it is
self-evident. Those who claim at the port of entry demonstrate beyond doubt
that they have just arrived. If, instead, they present themselves at asylum
centres in, say, Croydon or Newcastle, the problem of determining whether
they are, indeed, genuine newly arrived asylum seekers will impose a significant
additional administrative burden on the immigration service.
- In the context
of these considerations of background, we turn to consider whether previous
authority provides any guidance in interpreting the phrase ‘as soon as reasonably
practicable’. In Slivak v Lurgi Pty Ltd (2001) 177 ALR 585 Gaudron J remarked:
"The words "reasonably
practicable" have, somewhat surprisingly, been the subject of much judicial
consideration. It is surprising because the words "reasonably practicable"
are ordinary words bearing their ordinary meaning. And the question whether
a measure is or is not reasonably practicable is one which requires no more
than the making of a value judgment in the light of all the facts. Nevertheless,
three general propositions are to be discerned from the decided cases:
- the phrase
"reasonably practicable" means something narrower than "physically possible"
or "feasible";
- what is
"reasonably practicable" is to be judged on the basis of what was known
at the relevant time;
- to determine
what is "reasonably practicable" it is necessary to balance the likelihood
of the risk occurring against the cost, time and trouble necessary to
avert that risk."
- The last proposition
reflects the fact that most of the authorities referred to relate to statutory
duties imposed on employers to take such steps as are reasonably practicable
to protect their employees. There the relevant test of proportionality involves
weighing what is physically involved in taking a precaution against the risk
that it will guard against - see, for instance, Edwards v National Coal Board
[1949] 1 KB 704. There is no scope for such an exercise in the present context.
The Secretary of State argued convincingly that it was always ‘practicable’
for an asylum seeker to claim asylum at a British airport. He might have argued
that, at an airport, the qualification ‘reasonably’ adds nothing in contradistinction
to the position where asylum seekers are disgorged from a lorry far from the
point of entry. He conceded, however, that in extreme circumstances - mental
trauma or the imposition of threats - it was relevant to consider the mental
state of the asylum seeker when deciding whether it was reasonably practicable
for him or her to claim asylum at the airport. Two questions fall for consideration:
(1) was the Attorney-General right to make that concession? If so, (2) why
should one not have regard to the asylum seeker’s state of mind resulting
from the information or instructions given by the agent who is facilitating
his or her entry?
- As to the first
question, a strict interpretation of what is ‘reasonably practicable’ might
focus objectively and exclusively on what, if any, physical obstructions existed
to claiming asylum, so that the knowledge or state of mind of the asylum seeker
would have no relevance. We consider that the Attorney-General was right not
to advance such an extreme interpretation in the present context. To deprive
an asylum seeker of support regardless of his reason for failing to claim
asylum at the airport would, in some cases, be extremely harsh. It is possible,
where the context so requires, to interpret ‘as soon as reasonably practicable’
so as to mean ‘as soon as could reasonably be expected having regard to what
was physically possible’, and this opens the door to having regard to the
mental state of the asylum seeker in question. As an illustration of that
proposition and for no other reason we will quote two statements in relation
to the manner of operation of section 55.
- The Secretary
of State on 5 November 2002 when the amendment came before the Commons said
this (Hansard 5 November 2002 Column 199):
The question
is how reasonable we are regarding people who come here but do not claim
asylum at the port of entry. We need to be reasonable and to take into account
the trauma that people experience."
The written statement
on section 55 issued by Ms Beverley Hughes on 28 November 2002 included
the following passage:
"It will not
be acceptable for an asylum seeker wanting NASS support to postpone making
an asylum claim unless there is a very good reason for doing so. And even
if there is a good reason for not claiming asylum immediately on arrival
at the port, the person must claim asylum as soon as possible thereafter."
- Perhaps more pertinent
is a decision upon which the Attorney-General himself relied. In Wall’s Meat
Co Ltd v Khan [1979] ICR 52 the issue was whether it had been ‘reasonably
practicable’ for an employee to present to an industrial tribunal, within
the three months required by the relevant statute, a complaint that he had
been unfairly dismissed. The employee had failed to do so because he mistakenly,
but reasonably, believed that he had satisfied this requirement by making
a claim for unemployment benefit to a different tribunal. The Attorney-General
relied upon passages in the judgments of each of the three members of the
Court of Appeal. At p56 Lord Denning MR said this:
"I would venture
to take the simple test given by the majority in Dedman’s case [1974] ICR
53, 61. It is simply to ask this question: Had the man just cause or excuse
for not presenting his complaint within the prescribed time? Ignorance of
his rights - or ignorance of the time limit - is not just cause or excuse,
unless it appears that he or his advisers could not reasonably be expected
to have been aware of them. If he or his advisers could reasonably have
been so expected, it was his or their fault, and he must take the consequences.
That was the view adopted by the Employment Appeal Tribunal in Scotland
in House of Clydesdale Ltd v Foy [1976] IRLR 391 and in England in Times
Newspapers Ltd v O’Regan [1977] IRLR 101 - decisions with which I agree.
The present case
is not one where the man was ignorant of his rights or of the time limit.
He was aware of them, but he thought quite naturally that his claim was
already lodged and was being processed before the appropriate tribunal.
He continued in that state of mind until he was told on December 9, 1976
- after the three months had expired - by the local insurance tribunal that
he had to lodge a complaint with the industrial tribunal. That seems to
me to afford just cause or excuse: such that it was open to the industrial
tribunal to hold that it was not "reasonably practicable" to present it
within the three months."
At p59 Shaw LJ
said:
"I turn to the
situation where a dismissed employee does know of his right to present his
claim but does not realise that there is a time limit and delays his attempt
to claim until that time limit is passed. I do not regard this situation
as being one which of itself makes it not reasonably practicable to present
a claim before the limitation has expired. There may be other factors which
effectively impede the presentation of the claim in time. Some have been
adverted to, such as illness; but in this context mere ignorance is not
among them. Apart from extraneous considerations, such as illness or incapacity,
once an ex-employee is aware of his rights it is practicable for him to
pursue them from the day that he becomes aware of them."
Finally at pp60-61
Brandon LJ added:
"Looking at the
matter first without reference to the authorities, I should have thought
that the meaning of the expression concerned, in the context in which it
is used, was fairly clear. The performance of an act, in this case the presentation
of a complaint, is not reasonably practicable if there is some impediment
which reasonably prevents, or interferes with, or inhibits, such performance.
The impediment may be physical, for instance the illness of the complainant
or a postal strike; or the impediment may be mental, namely, the state of
mind of the complainant in the form of ignorance of, or mistaken belief
with regard to, essential matters. Such states of mind can, however, only
be regarded as impediments making it not reasonably practicable to present
a complaint within the period of three months, if the ignorance on the one
hand, or the mistaken belief on the other, it itself reasonable. Either
state of mind will, further, not be reasonable if it arises from the fault
of the complainant in not making such inquiries as he should reasonably
in all the circumstances have made, or from the fault of his solicitors
or other professional advisers in not giving him such information as they
should reasonably in all the circumstances have given him."
- The context of
Wall’s Meat Co. Ltd. v Khan was very different from the present, but we consider
that it fairly demonstrates that, in determining what is reasonably practicable,
the state of mind of the person concerned can have relevance. Particularly
relevant will be the knowledge of the asylum seeker as to where, how and to
whom to claim asylum. As to this, the position may differ markedly depending
upon whether the asylum seeker arrives by air or is smuggled in by lorry.
The Test
- In the light of
the considerations discussed above, we would define the test of whether an
asylum seeker has claimed asylum ‘as soon as reasonably practicable’ as follows:
‘On the premise that the purpose of coming to this country was to claim asylum
and having regard both to the practical opportunity for claiming asylum and
to the asylum seeker’s personal circumstances, could the asylum seeker reasonably
have been expected to claim asylum earlier than he or she did?’
- The Attorney-General
relied upon Wall’s Meat Co Ltd v Khan for the proposition that an individual
cannot contend that he has acted reasonably where he has been misled or misinformed
by a professional adviser. This principle, so he submitted, precluded any
asylum seeker from relying upon information, advice or instructions given
by the agent facilitating his or her entry as rendering it not ‘reasonably
practicable’ for the asylum seeker to claim asylum at the port of entry.
- The reason why
an individual cannot normally contend that conduct based on bad advice from
a solicitor or other professional adviser was reasonable was not stated in
Wall’s Meat Co Ltd v Khan nor explored before us. It may be by reason of principles
of the law of agency, or considerations of policy, or a combination of the
two. Before us the Attorney-General relied heavily on considerations of policy
and practicality. He argued that if asylum seekers were entitled to pray in
aid what they have been told by facilitators in order to justify failure to
seek asylum at the port of entry, section 55 would become a dead letter. He
also contended that it would be quite wrong to permit an asylum seeker to
rely upon instructions given by a facilitator who is committing a serious
criminal offence and who is motivated by the need to avoid apprehension.
- We do not consider
that an agent who arranges by generally fraudulent means for an asylum seeker
to come to this country is, as a matter of legal principle, to be equated
with a solicitor or professional adviser so as to preclude the asylum seeker
from relying upon inaccurate or self-interested advice or information given
by agents when claiming that it was not reasonably practicable to claim asylum
at the port of entry. Mr Alexander Buchan, the Chief Executive of Refugee
Action, put in evidence Home Office research which demonstrates the degree
of control that some facilitators have over their charges. The Attorney-General
recognised the possibility of duress by threats against the families of asylum
seekers, and this phenomenon is recorded in the Home Office research. It is
also clear that some asylum seekers are so much under the influence of the
agents who are shepherding them into the country that they cannot be criticised
for accepting implicitly what they are told by them. There is no valid comparison
between agents of this kind, whose interests at the point of entry may well
be in serious conflict with those of the asylum seekers, and professional
advisers. To disregard the effect that they may have on their charges would
be both unrealistic and unjust.
- Nor can we accept
that to have regard to the effect of information provided to asylum seekers
by facilitators will rob section 55 of effect. We have had evidence of the
steps that the Home Office is taking to draw to the attention of passengers
arriving at United Kingdom airports that asylum must be claimed at the airport.
Notices to this effect have been posted in a variety of languages. These steps,
and possibly others, will make it increasingly difficult for an asylum seeker
credibly to claim ignorance of the requirement to claim asylum at the airport.
There is a conflict of evidence, and the evidence continued to proliferate
during the hearing before us, as to how easily an asylum seeker can pass through
immigration without being subjected to any questions. We cannot resolve that
issue, but if evidence advanced on behalf of the respondents is correct, there
is scope for the immigration service to tighten up entry formalities. It seems
to us that it is likely to become increasingly difficult for asylum seekers
to allege, credibly, that they have been led to believe that asylum cannot
or should not be claimed at the airport. At the same time the risks posed
by section 55 to those who do not claim at the airport are likely to become
more widely appreciated.
- There is one final,
and important point. Later in this judgment we comment upon the nature of
the factual inquiry that must, in fairness, be carried out when an asylum
seeker claims assistance. When appropriate procedures are in place, we consider
that it will be very difficult for an asylum seeker who is not very recently
arrived to discharge the burden of proving that it was not reasonably practicable
for him or her to claim asylum any earlier. Thus, insofar as the object of
section 55 is to draw a distinction between genuine asylum seekers who have
recently arrived in this country and others who claim asylum only after they
have been living here for a period as illegal immigrants, the section is likely
to meet that objective.
- For these reasons
we agree with Collins J’s conclusion that, when deciding whether an asylum
seeker claimed asylum as soon as reasonably practicable, it is right to have
regard to the effect of anything that the asylum seeker may have been told
by his or her facilitator.
Article 3
of the Convention
- Section 6 of the
Human Rights Act 1998 forbids the Secretary of State from acting in a way
which is incompatible with the Convention rights scheduled to that Act. Section
55(5) of the 2002 Act permits the Secretary of State to provide support where
section 55(1) would otherwise prohibit it where this is necessary in order
to avoid a breach of the asylum seeker’s Convention rights. At issue in this
appeal is whether, and in what circumstances, he will be required to provide
support to an asylum seeker who has fallen foul of section 55(1) in order
to avoid a breach of Article 3 or Article 8 of the Convention. We shall consider
first Article 3.
- Article 3 of the
Convention provides:
"No one shall
be subjected to torture or to inhuman or degrading treatment or punishment."
- Two issues arise:
(1) can failure to provide support ever constitute subjecting an asylum seeker
to inhuman or degrading treatment? If yes, (2) in what circumstances will
the failure constitute such treatment?
- Collins J answered
the first question in the affirmative, although the basis upon which he did
so is a little opaque. He referred to the decision of Stanley Burnton J in
R (Husain) v Secretary of State [2001] EWHC Admin 852, in which the issue
was whether the withdrawal of support from destitute asylum seekers violated
Article 3. As to this Stanley Burnton J held at paragraph 53:
"I find the question
whether a failure to support destitute asylum seekers constitutes a violation
of Article 3 a difficult one. I do not think it is necessary for me to answer
it and I do not propose to do so. The question in the present case is whether
the withdrawal of support from destitute asylum seekers, who by definition
lack the means of obtaining adequate accommodation or cannot meet their
essential living needs, in consequence of their misconduct, may constitute
inhuman punishment or treatment and so violate Article 3. The judgment of
the Court of Appeal in the JCWI case indicates that other means of support
principally by charities, are scarce. In my judgment, unless other means
of support are available when support is withdrawn, there will be a violation
of Article 3".
- Collins J’s conclusion
appears from the following passage of his judgment:
"It is clear
that there is no duty on a State to provide a home. It may even be that
there is no duty to provide any form of social security. But the situation
here is different since asylum seekers are forbidden to work and so cannot
provide for themselves. Unless they can find friends or charitable bodies
or persons, they will indeed be destitute. They will suffer at least damage
to their health. I therefore agree with Stanley Burnton J."
- The inference
from this passage is that Collins J concluded that the Secretary of State
would be in breach of Article 3 if he failed to provide support to an asylum
seeker in circumstances where he would not receive assistance from friends
or charity. Later he held that Article 3 would be violated if:
"a State puts
into effect a measure which results in treatment which can properly be described
as inhuman or degrading by adversely affecting his mental or physical health
to a sufficiently serious extent"
He added:
"It is not necessary
to wait until damage of a sufficient severity occurs provided there is a
real risk that it will occur."
- This last comment
resolved an issue raised earlier in his judgment as to whether the ‘real risk’
test that has been applied by the Strasbourg Court in relation to intended
removal was applicable in the present context.
- Collins J went
on to hold that there will normally be a real risk that to leave someone destitute
will violate Article 3, observing that he was not persuaded that charity offered
a real chance of providing support. However, he held that in none of the six
cases before him could it be said whether there had been a breach of Article
3 because insufficient consideration had been given by the decision makers
to this question. This formed part of his reason for quashing the decisions.
Positive and
Negative Obligations
- Before us there
was an interesting debate as to whether the regime imposed on asylum seekers
who are deprived of assistance by virtue of section 55(1) constitutes treatment
within the meaning of Article 3. Mr Blake and Mr Singh submitted that it did
and that, if those deprived of support reached a sufficient level of degradation,
the State would be in breach of the negative obligation to refrain from inhuman
or degrading treatment. The Attorney-General submitted that failure to provide
support could never constitute treatment and thus breach of a negative obligation.
He accepted, however, that in extreme circumstances Article 3 could impose
a positive obligation on the State to provide support for an asylum seeker.
By way of example, he cited the predicament of a heavily pregnant woman. It
seemed to us that the distance between the parties was in practice fairly
narrow, albeit that the argument covered what is at present the cutting edge
of human rights jurisprudence.
- The European Court
of Human Rights has been asked on more than one occasion to draw a positive
right out of Articles 3 and 8. It has occasionally done so in fields far removed
from the present one; but even in those cases where it has declined to do
so, it has reiterated that at some point positive obligations do arise under
these Articles. A single citation will make the point:
"49. Article
3 of the Convention, together with Article 2, must be regarded as one of
the most fundamental provisions of the Convention and as enshrining core
values of the democratic societies making up the Council of Europe. In contrast
to the other provisions in the Convention, it is cast in absolute terms,
without exception or proviso, or the possibility of derogation under Article
15 of the Convention.
50. An examination
of the Court’s case law indicates that Article 3 has been most commonly
applied in contexts in which the risk to the individual of being subjected
to any of the proscribed forms of treatment emanated from intentionally
inflicted acts of State agents or public authorities. It may be described
in general terms as imposing a primarily negative obligation on States to
refrain from inflicting serious harm on persons within their jurisdiction.
However, in light of the fundamental importance of Article 3, the Court
has reserved to itself sufficient flexibility to address the application
of that Article in other situations that might arise.
51. In particular,
the Court has held that the obligation on the High Contracting Parties under
Article 1 of the Convention to secure to everyone within jurisdiction the
rights and freedoms defined in the Convention, taken together with Article
3, requires States to take measures designed to ensure that individuals
within their jurisdiction are not subjected to torture or inhuman and degrading
treatment or punishment, including such treatment administered by private
individuals. A positive obligation on the State to provide protection against
inhuman or degrading treatment has been found to arise in a number of cases:
see, for example, the above-cited A v United Kingdom (1998) 27 EHRR 611,
§22, where the child applicant had been caned by his stepfather, and Z and
others v United Kingdom (2001) 34 EHRR 3, where four child applicants were
severely abused and neglected by their parents. It also imposes requirements
on State authorities to protect the health of persons deprived of liberty."
(Pretty v United Kingdom (2002) 35 EHRR 1)
- As the Attorney-General
pointed out, decisions of the European Court of Human Rights, typically O’Rourke
v United Kingdom (39022/97, 23 June 2001), make it clear that the state’s
failure to provide shelter does not by itself amount to inhuman or degrading
treatment. But, as he himself accepted, it does not follow that in a case
of sufficiently acute individual need - perhaps, as suggested in argument,
that of a person who is not only destitute but blind - no positive obligation
can arise; and such cases as D v United Kingdom (1997) 24 EHRR 423 clearly
establish that a breach of the constant negative obligation can occur where
an affirmative act of the State is such as to result, indirectly, in inhuman
or degrading consequences for the individual.
- The distance between
positive and negative obligation is thus not necessarily great. But the distinction
is still real, not least because of its potential consequences for State policy.
- In our judgment
the regime that is imposed on asylum seekers who are denied support by reason
of section 55(1) constitutes ‘treatment’ within the meaning of Article 3.
Our reasoning is as follows. Treatment, as the Attorney-General has pointed
out, implies something more than passivity on the part of the State; but here,
it seems to us, there is more than passivity. Asylum seekers who are here
without a right or leave to enter cannot lawfully be removed until their claims
have been determined because, in accordance with the United Kingdom’s obligations
under Article 33 of the Refugee Convention, Parliament has expressly forbidden
their removal by what is now section 15 of the 1999 Act. But while they remain
here, as they must do if they are to press their claims, asylum seekers cannot
work (Asylum and Immigration Act 1996, section 8) unless the Home Secretary
gives them special permission to do so (Immigration (Restrictions on Employment)
Order 1996).
- The imposition
by the legislature of a regime which prohibits asylum seekers from working
and further prohibits the grant to them, when they are destitute, of support
amounts to positive action directed against asylum seekers and not to mere
inaction.
- At what point
then does such treatment become inhuman or degrading?
- Destitution is
an emotive word, and it might be argued that denying support to the destitute
is necessarily inhuman and degrading treatment. Such an argument has not been
advanced before us, and for good reason. Mr Blake has accepted that there
is a margin between the condition that renders an asylum seeker destitute
for the purposes of the Asylum Support Regulations, and section 95 of the
1999 Act, and the condition to which an individual must sink before he can
contend that he is a victim of a breach of Article 3. As to the former, an
individual will, by virtue of section 95(3), be deemed to be destitute if
his living accommodation is not adequate and the regulations provide for a
minimum sum of money or money’s worth which must be provided by way of subsistence.
The degree of degradation that must be demonstrated to engage Article 3 falls
significantly below this definition of destitution. This can be illustrated
by reference to the decision of the Strasbourg Court in O’Rourke v United
Kingdom. The applicant was evicted from temporary accommodation provided for
him when he came out of prison. He lived on the streets, to the detriment
of an asthmatic condition and a chest infection from which he suffered. The
Strasbourg Court held that this experience did not attain the requisite level
of severity to engage Article 3.
- It is quite impossible
by a simple definition to embrace all human conditions that will engage Article
3. In Pretty the Strasbourg Court provided the following guidance:
"52. As regards
the types of "treatment" which fall within the scope of Article 3 of the
Convention, the Court’s case law refers to "ill-treatment" that attains
a minimum level of severity and involves actual bodily injury or intense
physical or mental suffering. Where treatment humiliates or debases an individual
showing lack of respect for, or diminishing, his or her human dignity or
arouses feelings of fear, anguish or inferiority capable of breaking an
individual’s moral and physical resistance, it may be characterised as degrading
and also fall within the prohibition of Article 3. The suffering which flows
from naturally occurring illness, physical or mental, may be covered by
Article 3, where it is, or risks being, exacerbated by treatment, whether
flowing from conditions of detention, expulsion or other measures, for which
the authorities can be held responsible."
- The passages from
the judgment of Collins J to which we have referred above suggest that he
considered that there will be a breach of Article 3 if the Secretary of State
refuses permission to an asylum seeker where there is a real risk that, because
he will receive no support from any alternative source, he will decline into
the kind of state described in Pretty. The ‘real risk’ test is one that Strasbourg
has applied in the case of removal to a country in circumstances where the
removing State will no longer be in a position to influence events. We do
not believe that it is an appropriate test in the present context.
- Some who apply
for asylum may already be in a condition which verges on the degree of severity
capable of engaging Article 3 described in Pretty. For those section 55(5)
of the 2002 Act will permit and section 6 of the Human Rights Act will oblige
the Secretary of State to provide or arrange for the provision of support.
What of the others? Their fate will be uncertain. Those who have been in-country
long enough to demonstrate that they have found other means of subsistence
may be able to fend for themselves. But it is manifest that some recent arrivals
who have no recourse to work, to funds or to help may also be caught by section
55(1). The Attorney-General submitted that one cannot discount the possibility
that charitable bodies or individuals will come to their assistance. This
must be a possibility. But equally there must be a possibility that some will
be brought so low that they will be driven to resort to crime or to prostitution
in order to survive.
- Unlike Collins
J we do not consider that the fact that there is a real risk that an individual
asylum seeker will be reduced to this state of degradation of itself engages
Article 3. It is not unlawful for the Secretary of State to decline to provide
support unless and until it is clear that charitable support has not been
provided and the individual is incapable of fending for himself. That is what
section 55(1) requires him to do. He must, however, be prepared to entertain
further applications from those to whom he has refused support who have not
been able to find any charitable support or other lawful means of fending
for themselves. The Attorney-General indicated that is always open to asylum
seekers who have been refused support to re-apply for this.
Article 8
- Article 8 provides
that ‘everyone has a right to respect for his private and family life, his
home and his correspondence’. Similar considerations apply in relation to
this right to those that we have discussed in relation to Article 3. If the
denial of support to an asylum seeker impacts sufficiently on the asylum seeker’s
private and family life, which extends to the individual’s physical and mental
integrity and autonomy - see X and Y v Netherlands (1985) 8 EHRR 235, the
Secretary of State will be in breach of the negative obligation imposed by
Article 8, unless he can justify his conduct under Article 8(2) - as to which
there was little debate before us. In the context of this case we think that
Article 8 adds little. Certainly Article 8 without more does not entitle the
applicant to a roof over his head - see Marzari v Italy [1999] 28 EHRR CD
175. On the facts of this case, we find it easier to envisage the risk of
infringement of Article 3 rights than of Article 8 rights. In the light of
our overall conclusions we do not consider there is any need to consider Article
8 at greater length.
Procedure
The Questions
- As we understand
it, in cases of the kind with which we are concerned, the asylum seeker is
treated as making a claim for support, either expressly or by implication,
when he claims asylum. Each such application requires the Secretary of State
or his agent to consider a number of questions.
- The first question
arises under section 55(1) and is whether the Secretary of State is satisfied
that the applicant has claimed asylum as soon as reasonably practicable after
his arrival in the United Kingdom. We have discussed the relevant test above.
If the answer to that question is yes, the Secretary of State will consider
whether the applicant should receive benefit under section 95 of the 1999
Act. This appeal is not concerned with that further question and we therefore
say nothing about it save that, so far as we are aware, it has not given rise
to particular difficulty.
- The second and
third questions, with which we are concerned, assume that the answer to the
first question is no. The second question is then whether the applicant appears
to the Secretary of State to be or likely to become destitute within the meaning
of section 95(1) of the 1999 Act. For that purpose, a person is defined by
section 95(3) as destitute if he does not have adequate accommodation or any
means of obtaining it or he has adequate accommodation or the means of obtaining
it but cannot meet his other essential living needs.
- If the answer
to the second question is no, that is the end of the matter and no question
of providing support will arise. However, if the answer to the second question
is yes, the third question arises. It is the question posed by section 55(5),
namely whether it is necessary to provide support for the purpose of avoiding
a breach of the applicant’s Convention rights. We have already expressed the
view that that is a high threshold but that it will be necessary to provide
the applicant with benefit for that purpose where he or she is so patently
vulnerable that to refuse support carries a high risk of an almost immediate
breach of Article 3 or 8.
The Principle
of Fairness
- It is common ground
that under section 55(1) of the Act the burden of satisfying the Secretary
of State that the claim for asylum was made as soon as reasonably practicable
after arrival in the United Kingdom is on the applicant. Equally, it is not
we think in dispute that the burden of satisfying the Secretary of State of
the answers to the second and third questions posed above is also on the applicant.
It is further common ground that in deciding whether the applicant has so
satisfied him the Secretary of State must act fairly, which means both that
he must set up a fair system to enable the decisions to be made and that he
must operate the system fairly: see eg Gaima v Secretary of State for the
Home Department [1989] Imm AR 205, applying Re HK (Infant) [1967] 1 QB 617
at 630.
- What fairness
requires of course depends upon the circumstances of the case. The underlying
principles were stated thus in a well known passage in the speech of Lord
Mustill in R v Home Secretary ex p Doody [1994] 1 AC 531 at 560:
"What does fairness
require in the present case? My Lords, I think it unnecessary to refer by
name or to quote from, any of the often-cited authorities in which the courts
have explained what is essentially an intuitive judgment. They are far too
well known. From them, I derive that (1) where an Act of Parliament confers
an administrative power there is a presumption that it will be exercised
in a manner which is fair in all the circumstances. (2) The standards of
fairness are not immutable. They may change with the passage of time, both
in the general and in their application to decisions of a particular type.
(3) The principles of fairness are not to be applied by rote identically
in every situation. What fairness demands is dependent on the context of
the decision, and this is to be taken into account in all its aspects. (4)
An essential feature of the context is the statute which creates the discretion,
as regards both its language and the shape of the legal and administrative
system within which the decision is taken. (5) Fairness will very often
require that a person who may be adversely affected by the decision will
have an opportunity to make representations on his own behalf either before
the decision is taken with a view to producing a favourable result; or after
it is taken, with a view to procuring its modification; or both. (6) Since
the person affected usually cannot make worthwhile representations without
knowing what factors may weigh against his interests fairness will very
often require that he is informed of the gist of the case which he has to
answer."
- The importance
of ensuring that the system is fair to applicants, as well of course as to
the public interest, seems to us to be of particular importance in the circumstances
with which section 55 is concerned. Section 55(1) is or is potentially of
draconian effect because, subject to section 55(5), it prevents the Secretary
of State from providing benefit to applicants who are destitute, since its
whole purpose is to disapply section 95 of the 1999 Act, which of course only
applies to applicants who are destitute as defined in that section.
- Further, and importantly,
section 55(1) involves a determination of a question of fact in circumstances
in which section 55(10) expressly provides that an adverse decision under
section 55 is not appealable under section 103 of the 1999 Act. Although,
as discussed below in connection with Article 6, that determination is subject
to judicial review, the nature of that review is necessarily limited so far
as conclusions of fact are concerned so that it is of particular importance
to ensure that the Secretary of State follows a fair procedure in reaching
his conclusion about the facts.
- Finally, where
the Secretary of State is not satisfied that the applicant has claimed asylum
as soon as reasonably practicable, the most careful consideration will be
called for as to whether refusing support will violate the applicant’s Convention
rights, at any rate where there is any possibility that they may be engaged.
The System
- The system which
was operated by the Secretary of State and which was relevant to the initial
decisions in the six cases with which we were concerned was described by Collins
J in paragraphs 18 to 22 of his judgment. It may be summarised in this way.
- A person applying
for asylum was interviewed by an administrative officer (‘an AO’), who was
given a screening form to help him decide what questions to ask. Before the
interview began the preamble on the form was read to the applicant. As originally
drafted it contained no explicit reference to the fact that the question for
decision was whether the applicant could show that he had applied for asylum
as soon as reasonably practicable after arrival. It included the following:
"I will write
down what you tell me and this form will then be passed to officers in the
Asylum Directorate of the Home Office. This form will also be passed to
officers in the National Asylum Support Service (NASS) if you are a person
to whom Section 55 of the Nationality, Immigration and Asylum Act 2002 applies,
so that a decision can be made on whether or not you are eligible to be
considered for NASS support. NASS officers may also request to interview
you in respect of the information you have supplied on this form."
- After a short
time the preamble was redrafted and a new form was substituted on 17 January.
It was used for interviews after that date and was thus used in cases where
the respondents were interviewed afresh. As Collins J observed, the only difference
of significance is in the preamble which now includes these sentences:
"It is VITAL
that all relevant information you possess in connection with when, how and
where you arrived in the UK, and how you travelled here today is given to
us today even if you are not directly asked a question about it. Otherwise
you may be refused support on the basis that you have given inadequate information
to satisfy the Secretary of State that you made your asylum claim as soon
as practicable after arrival in the UK. Do you understand? " (Record answer).
- The remainder
of the form, which is filled in by the AO, has remained much the same throughout.
It contains a number of printed questions with spaces for answers. The initial
questions are concerned with personal and family details. There then comes
a request to state the current address in the United Kingdom followed by a
number of questions asking how and when he arrived, how he travelled to the
interview, why there was a delay (if there was any) and what evidence could
be produced to support his account of when and how he arrived.
- Although there
are a large number of questions on the form, very few of them seem to us to
be related directly to the key question under section 55(1), namely whether
the applicant applied for asylum as soon as reasonably practicable after arrival.
The only such questions seem to us to be these:
"1.25a Explain
why you did not immediately apply for asylum to an [IO] at the port of entry?
1.25b What evidence
do you have to support your previous answer?
1.25c [If there
is a delay between the date the interviewee arrived in the UK and the date
of his/her application for asylum]. Explain why there is a delay between
the date you arrived in the UK and the date you applied for asylum
1.25d What evidence
do you have to support your previous answer?
1.26 Country
of embark.
1.26a What evidence
do you have to show when you were last in the country you claim to have
arrived from?"
- There are then
questions about means and assets which complete the first part of the form.
There follows what is described as a level two form, of which there are two
types. They are a long version and a shorter version which is used at Croydon,
where the pressure of work is much greater than elsewhere. The shorter version
asks whether the interviewee passed through immigration control when he reached
the UK and, if so, what reasons he gave the IO for his visit, how long he
said he planned to stay and on what conditions he entered the UK, and, if
not, how he entered the UK. If the interviewee entered by lorry it further
asks what type of lorry, what its cargo was, how long he was in the lorry
and where in the UK he was dropped off. Finally it asks what evidence he has
to support the statements made in the interview and whether he has anything
else to add. The longer form asks one or two more questions, including what
documentation the interviewee has and concludes with this warning:
"It is vital
that you tell us everything you know which is relevant to the questions
I have asked you or to which you think you should tell us. It may affect
your entitlement to support if you fail to provide full details."
Once filled in
the form is passed to NASS where it is considered by an executive officer
(an ‘EO’) or an IO and a decision made.
Is the System
Fair?
- Collins J held
that that system was not fair to the applicants. His conclusions are set out
in paragraphs 19 to 21 of his judgment as follows:
"19. It is an
unfortunate element of the system, although I understand why it is considered
necessary, that the person at NASS who decides whether to refuse or allow
support under s.55 relies entirely on the answers recorded on the form.
He does not see nor does he question the Claimant. This means that it is
important that all necessary information is obtained so that a fair decision
can be made and all relevant circumstances can be taken into account. It
is to be noted that there is no guidance provided as to how human rights
issues should be investigated and no questions in the form give much, if
any, assistance in that respect.
20. The decision
is not appealable. Steps must be taken to ensure that the decision-making
process is fair; so much will always be implied. In the circumstances, it
is the more important that the Claimant should have a reasonable opportunity
to deal with and to explain any matter, which is to be relied on against
him. I recognise that Mr Garnham has stated that the Secretary of State
will always be prepared to reconsider an adverse decision if further representations
are made or evidence produced. That is to be welcomed. But it is not a substitute
for proper and fair primary decision-making. I am satisfied that in port
arrivals cases further detail must be asked about reliance on advice and,
if an account of what happened at the airport is considered incredible,
an opportunity should be given for further explanation. In lorry cases,
vagueness about the nature of the lorry or the journey should again be investigated,
particularly if, as has been the case in these and I gather in many claims,
it is to be said that such vagueness means that the Secretary of State is
not satisfied that the Claimant arrived when he said he did. I do not suggest
any extra questioning need be at all lengthy. What is needed will depend
on the circumstances, but the reasonableness of the delay in claiming asylum
can only be properly decided on if sufficient information is provided. At
the very least, the Claimant must be given the chance to rebut a suggestion
of incredibility and to explain himself if he can. All that may be needed
is a warning that the account is too vague or is incredible having regard
to known practices at ports or it was not reasonable to rely on advice or
to obey instructions. In those latter cases, it is not uncommon that threats
are made that the Claimant’s family will be made to suffer if instructions
are not obeyed. Equally, I am well aware from my position as President of
the Immigration Appeal Tribunal (the "IAT") that in some countries to claim
asylum at a port will result in immediate refusal to enter and removal by
the police. This has led some to believe that it is essential to gain entry
before claiming asylum.
21. It is accepted
that reasons should be given for an adverse decision. Suffice it to say
that they [ie the reasons] need not be at all lengthy but they must enable
the Claimant to know why his claim has been refused."
- The Attorney-General
submits that this reasoning is unsound. We do not agree. The system as it
has been operated to date seems to us to have some curious and unsatisfactory
features.
- The Attorney-General
stresses on behalf of the Secretary of State that the burden of proving that
he claimed asylum as soon as reasonably practicable after arrival is on the
applicant and submits that that is entirely reasonable because only the applicant
knows the true facts, which of course include when and where he entered the
United Kingdom and what, if any, explanation he gave to the immigration officer.
We entirely accept that that is so, although the question remains whether
the system is a fair one which is fairly operated.
- As already explained,
on applying for asylum, whether or not any claim for benefit is made, the
applicant is interviewed as part of a general screening process. It appears
to us that the interview is carried out without any clear statement that one
purpose of the interview is to determine the questions identified above. In
our view fairness requires that the purpose of the interview should be more
clearly explained to the applicant. In its first incarnation the preamble
contained no reference to the reasonable practicability test and was inadequate
on that ground. In its second incarnation it was significantly improved, but
it seems to us that the purpose of the interview should be spelled out still
more clearly to the applicant.
- As we understand
it, the decisions as to whether the applicant claimed asylum as soon as reasonably
practicable and as to whether it is necessary to provide support in order
to avoid an infringement of the applicant’s Convention rights are taken (at
least in the first instance) on the basis of the answers given as part of
the general screening process described above. In these circumstances fairness
requires that the applicant be told what the purpose of the interview is in
clear terms. Further thought should be given to an appropriate formulation.
It might include a statement that an important purpose of the interview is
to enable the Secretary of State to decide whether he is eligible for support;
that he may not be eligible unless he persuades the Secretary of State that
he had good reason for not applying for asylum earlier (the section 55(1)
issue); and that he will otherwise be eligible only for such support as is
necessary to prevent his treatment by the authorities here from becoming inhuman
or degrading (the section 55(5) issue).
- Quite apart from
the adequacy or otherwise of the information given to the applicant before
the interview begins, we have reached the conclusion that the system operated
to date by or (more accurately) on behalf of the Secretary of State is not
fair in a number of respects.
- First it seems
to us to be important that the interviewer and the decision maker should be
properly instructed as to what is meant by ‘reasonably practicable’ in section
55(1). Otherwise the issue is most unlikely to be properly investigated on
the facts. We set out in paragraph 21 above the somewhat confusing guidance
at present issued to caseworkers by NASS. It is confusing because of the different
expressions used in paragraph 4.1 and 4.2. The guidance includes a number
of examples, but the guidance given in these examples is not wholly consistent
with the conclusions we have reached above. We also note that there is no
example in relation to an applicant who says that he arrived by air.
- We have already
expressed our view that in order to decide whether the applicant applied for
asylum "as soon as reasonably practicable after [his] arrival in the United
Kingdom" the Secretary of State should ask himself the question: on the premise
that the purpose of coming to this country was to claim asylum and having
regard both to the practical opportunity for claiming asylum and to the asylum
seeker’s personal circumstances, could the asylum seeker reasonably have been
expected to claim asylum earlier? We have also expressed the view that in
answering that question the Secretary of State should have in mind the asylum
seeker’s state of mind including his state of mind resulting from any information
or instructions given by the agent who facilitated his entry.
- It is clear that
the decision makers were not given instructions to that effect. If they had
been, we have no doubt that the questions asked in interview would have been
more extensive than there were in fact. This brings us to the second reason
for our conclusion that the system operated to date is not fair.
- It is this. It
seems to us to be important for the interviewer to probe the facts of each
case in order to ensure that he has a reasonably full picture so that the
Secretary of State’s decision can be properly informed. Few, if any, asylum
seekers have advice at the time of the interview, so that (at any rate without
a much clearer explanation of the purpose of the interview) it is insufficient
for the Secretary of State to contend that the burden of proof is on the applicant
and that he has only himself to blame if he does not provide the interviewer
with the whole picture.
- We do not think
that the questions asked at present enable the interviewer (let alone the
decision maker) to have a sufficiently full picture for a fair decision to
be made. In the light of the conclusions set out above, fairness requires
the interviewer to try to ascertain the precise reason that the applicant
did not claim asylum, say, at the airport or immediately after being let out
of a lorry. This calls for interviewing skills and a more flexible approach
than simply completing a standard form questionnaire. For example, depending
upon the circumstances, it may well involve the need to ask at least some
questions relating to the state of mind of the applicant. That may in turn
involve asking him what advice or instructions he was given by his agent or
facilitator, although it is fair to say that in only one of the four cases
of applicants who said that they arrived by air did the applicant say that
he had been told by the agent not to claim asylum at the airport but later.
We recognise in this regard that it is not for the court to say what questions
should be asked in any particular case or how interviews should be conducted.
Suffice it to say that we are in no doubt that the system at present in place
does not satisfy the test of fairness.
- That is in our
view so, even though we recognise that an applicant can always ask the Secretary
of State to reconsider his first view and that the Secretary of State has
indicated that he will always be prepared to reconsider an adverse decision
where (as Collins J put it in paragraph 20) further representations are made
or evidence produced. We agree with the Judge that, although that is to be
welcomed, it is not a substitute for proper and fair primary decision making.
- Once a reasonably
full picture is available so that a decision can be properly informed, the
decision maker may of course accept the facts stated by the applicant and,
having correctly directed himself as to the appropriate test, reach a conclusion
as to whether he is satisfied that the applicant applied for asylum as soon
as reasonably practicable after arrival. If he concludes that he is not, he
must of course notify the applicant to that effect and give appropriate (albeit
short) reasons.
- He must then consider
whether it is necessary to provide support in order to avoid an infringement
of the applicant’s rights under the Convention. Such a consideration is necessary
in order for the Secretary of State to decide whether the case is taken outside
section 55(1) by reason of section 55(5)(a). This will involve a consideration
of the applicant’s physical state and, depending upon the circumstances of
the particular case, may involve asking appropriate questions in that regard.
- That brings us
to the third point. It does not seem to us that the present screening form
has sufficient regard to the nature of the enquiries that may be necessary
under this head in order to satisfy the requirement of fairness. As Collins
J put it in paragraph 19 of his judgment, quoted above, it is to be noted
that there is no guidance provided as to how human rights issues should be
investigated and no questions in the form give much, if any, assistance in
that respect.
- All will of course
depend upon the applicant’s individual circumstances. There is a considerable
difference between a person who has recently arrived and a person who has
been subsisting in this country for an appreciable period (and has for example
claimed asylum after being caught working illegally). Thus the number and
extent of the questions which it will be appropriate to ask will depend upon
the circumstances of the particular case. It will be a matter for the interviewer
in each case to decide.
- We should stress
that we are not persuaded that the further questioning which we anticipate
will be required to ensure that the system is a fair one will have to be extensive.
The areas of investigation remain in a narrow compass.
- There is a further
important aspect of fairness. As we understand it, the initial decision in
five of the six cases with which the applications for judicial review were
concerned assumed that the account given by the applicant was true and was
to the effect that the applicant had not satisfied the Secretary of State
that he had applied for asylum as soon as reasonably practicable after arrival.
However, in some cases it was argued on behalf of the Secretary of State before
the Judge that, even if the Secretary of State would have been so satisfied
on the assumption that the applicant’s account was true, he was not satisfied
of the truth of the account given by the applicant.
- This has highlighted
what, in our opinion, are two further serious defects in the system adopted
by the Secretary of State, at any rate until now. The first is that the decision
maker is not in the ordinary course of events the same person as the interviewer.
This means that a view has to be formed as to the credibility of the applicant’s
account by a person who has not seen the applicant but only read the answers
noted on the screening form by someone else. We understand from the Attorney-General
that that aspect of the system is to be changed and that the interviewer and
the decision maker will be the same person. In our view that will be a most
welcome change for the future.
- The second defect
is not unconnected with the first and was identified by the Judge in paragraph
20 of his judgment. He stressed that it was important that the applicant should
be given a reasonable opportunity to deal with and to explain any matter which
was to be relied on against him. We agree. Before the decision maker concludes
that the applicant is not telling the truth he must be given the opportunity
of meeting any concerns or, as Lord Mustill put it in Doody, he should be
informed of the gist of the case against him. We should add that we also agree
with the Judge that at the very least the applicant must be given the chance
to rebut a suggestion of incredibility and to explain himself if he can. As
the Judge put it in paragraph 20:
"All that may
be needed is a warning that the account is too vague or is incredible having
regard to known practices at ports or it was not reasonable to rely on advice
or to obey instructions."
The fact that
the burden rests on the applicant makes such a warning more, not less, necessary.
- The system as
operated to date does not afford the applicant such an opportunity, although
it will no doubt be much easier for it to do so once the interviewer and the
decision taker are the same person. In this context it is, in our opinion,
important that the credibility of each account should be considered individually.
Thus far, as we understand it, that has not been the approach of the Secretary
of State. Before the Judge the Secretary of State relied upon a statement
of Mr Dave Roberts, who is the Head of UK Border Control Operation for the
Immigration Service, which suggested that no-one could by-pass questioning
by the IO at the airport as some of the applicants said in their statements
that they had done so that the credibility of their account was rejected out
of hand. Since then the respondents have sought to rely upon counter-evidence
of practice at airports and Mr Roberts has made a further statement which
to some extent qualifies his previous evidence.
- As stated earlier
we cannot resolve these issues of fact. They persuade us, however, that it
was not fair to dismiss applicants’ statements as incredible without a more
rigorous interview process involving a consideration of the account given
in the particular case. On the other hand we reject Mr Blake’s submission
that, whenever it is concluded that the statement of an applicant is capable
of belief because asylum seekers have sometimes entered the country in the
same way before, the applicant must be treated as telling the truth. Whether
the particular applicant is telling the truth must be judged having regard
to all the circumstances of his particular case.
- Thus, for example,
the Attorney-General drew our attention to the fact that some of the applicants
had given differing accounts of their arrival in different statements. That
fact is plainly of considerable potential importance in deciding whether the
Secretary of State is satisfied that the applicant is telling the truth, although
whether or not it is conclusive will again depend upon all the circumstances.
These are all matters for the interviewer/decision maker to weigh up before
reaching a decision in a particular case.
The Individual
Cases
- There were six
applicants before Collins J. There is no need for us to say anything about
the cases of J and Q, both of whom claimed to have arrived by lorry, save
this. J was initially refused support, but he was re-interviewed and the Secretary
of State was satisfied that he claimed asylum as soon as reasonably practicable.
Q was also refused support but the Secretary of State offered to reconsider
his case and to re-interview him. He initially declined to be re-interviewed
but later agreed and he was re-interviewed on the first day of the hearing
before Collins J. A decision has been deferred pending the outcome of the
appeal. The Secretary of State will no doubt consider his case in the light
of the contents of the re-interview and the conclusions reached in this appeal,
in so far as they may be relevant in his case.
- The remaining
applicants and respondents to this appeal, namely F, M, D and B, all claimed
to have arrived by air. Their individual cases are discussed in paragraphs
26-29, 30-34, 35-43 and 44-52 of the judgment respectively and the Judge’s
conclusions are summarised in respect of section 55(1) in paragraphs 56 and
57 and in respect of section 55(5) in paragraphs 72 and 73.
- In essence his
conclusions were that, in respect of section 55(1), the interviewing process
was flawed substantially for the same reasons as we have set out above. As
to section 55(5) he held, as stated above, that there will normally be a real
risk that to leave someone destitute will violate Articles 3 and 8.1 and that
the standard form of rejection of any application of section 55(5) in all
the refusal letters demonstrated that insufficient consideration had been
given to the issue.
- The grounds upon
which the Secretary of State seeks to impugn the Judge’s decision in each
case are much the same. They are that his approach was wrong in these main
respects:
- absent duress
or some other exceptional circumstance, the Secretary of State is entitled
to take the approach that the person could claim asylum at the airport
and, by failing to do so, he failed to make his claim as soon as reasonably
practicable;
- in particular,
simply relying on the statements of the agent does not generally offer
any reasonable explanation as to why it was not reasonably practicable
to make the claim;
- the Secretary
of State did make enquires because he asked the person why he did not
claim asylum at the airport so that he had every opportunity to explain
why it was not reasonably practicable to do so;
- on the basis
of Mr Roberts’ first statement the story that an applicant was able to
by-pass the IO at the airport was not credible;
- in the case
of some applicants, notably M, several different accounts have been advanced
which shows that the applicant’s story is not credible; and
- in the case
of section 55(5) the Judge applied the wrong test.
- The conclusions
which we have set out in some detail above show that points i) to iii) cannot
succeed. Point iv) cannot succeed on a blanket basis. Each case must be considered
on its own facts. As to point v), the fact that different accounts have been
given is plainly of considerable potential importance in deciding whether
the applicant is telling the truth or not, although whether or not it is conclusive
will again depend upon all the circumstances. These are all matters for the
interviewer/decision maker to weigh up before reaching a decision in a particular
case.
- As to point vi),
we agree that Collins J applied the wrong test but, for the reasons we have
given, we are of the opinion that Articles 3 and 8 may potentially be engaged,
albeit on a different basis from that suggested by Collins J. However, we
agree with him that the process adopted to date has not been intrinsically
fair.
- In these circumstances
we do not think that it is necessary for us further to discuss the facts of
the individual cases. The Secretary of State will no doubt reconsider them
as appropriate in the light of the conclusions which we have reached. However,
the appeals in the individual cases must be dismissed.
Section 55(10)
and Article 6
- Section 55(10)
is unequivocal in blocking access to the appeal mechanism for asylum support.
Mr Blake submits that in so providing Parliament has acted incompatibly with
Article 6 of the Convention, which begins by providing:
"In the determination
of his civil rights and obligations - everyone is entitled to a fair and
public hearing within a reasonable time before an independent and impartial
tribunal."
- It is common ground
that the officials who take the material decisions are not independent. The
Attorney-General is willing that we should assume, without his conceding it,
that the right in issue is a civil right within the meaning of Article 6.
But the Home Secretary’s answer to the charge of incompatibility is that recourse
to judicial review, which the statute does not modify in any way, affords
Convention-compliant access to an independent and impartial tribunal.
- The common law
of judicial review in England and Wales has not stood still in recent years.
Starting from the received checklist of justiciable errors set out by Lord
Diplock in the CCSU case [1985] AC 374, the courts (as Lord Diplock himself
anticipated they would) have developed an issue-sensitive scale of intervention
to enable them to perform their constitutional function in an increasingly
complex policy. They continue to abstain from merits review - in effect, retaking
the decision on the facts - but in appropriate classes of case they will today
look very closely at the process by which facts have been ascertained and
at the logic of the inferences drawn from them. Beyond this, courts of judicial
review have been competent since the decision in Anisminic [1969] 2 AC 147
to correct any error of law whether or not it goes to jurisdiction; and since
the coming into effect of the Human Rights Act 1998, errors of law have included
failures by the state to act compatibly with the Convention.
- The European Court
of Human Rights concluded in Bryan v United Kingdom (1996) 21 EHRR 342 that
merits review was not a necessary element of the full jurisdiction which Article
6 requires to be vested in an independent tribunal. What is needed, as Lord
Hoffmann said in the Alconbury case [2001] 2 All ER 929, §87, is jurisdiction
to deal with the case as the nature of the decision requires.
- Very recently,
in Runa Begum v Tower Hamlets LBC [2003] 1 All ER 731, their Lordships’ House
has considered the application of Article 6 to the county court’s appellate
jurisdiction under section 204 of the Housing Act 1996 in relation to local
authority decisions on homelessness. Making the same assumption as we are
making that a civil right within Article 6 was at issue, Lord Hoffmann said:
"35. An English
lawyer can view with equanimity the extension of the scope of art. 6 because
the English conception of the rule of law requires the legality of virtually
all governmental decisions affecting the individual to be subject to the
scrutiny of the ordinary courts. But this breadth of scope is accompanied
by an approach to the grounds of review which req