The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits to any asylum applicant who did not claim asylum immediately upon entry, was unfair. There were several possible reasons which might lead to a claim not being made as soon as reasonably practical. These reasons would be disregarded under the appellant’s system. The burden of establishing the promptness of the application lay on the asylum seeker. A decision not to provide support could not become unlawful until it became clear that charitable aid would not be forthcoming, and the applicant would be unable to fend for himself. The threshold for establishing inhuman or degrading treatment by the failure to provide support was a high one. The system failed in not explaining properly to the applicant the nature and purpose of the interview. The case workers were not properly directed as to the tests to apply. Regard had to be given to the applicant’s state of mind, and the reasons for not applying immediately should be investigated. The interviewer and decision maker needed to be the same person. The applicants had been treated unfairly, and the Secretary of State’s appeal was dismissed.
Lord Phillips of Worth Matravers MR said: ‘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 polity. 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.’
Judges:
Lord Justice Sedley Lord Justice Clarke Lord Phillips Mr
Citations:
Times 19-Mar-2003, [2003] EWCA Civ 364, Gazette 29-May-2003, [2003] 2 All ER 905, [2003] HRLR 21, [2004] QB 36, [2003] UKHRR 607, [2003] 3 WLR 365, (2003) 6 CCL Rep 136, (2003) 6 CCL Rep 136, [2003] ACD 46
Links:
Statutes:
Nationality, Immigration and Asylum Act 2002 55, European Convention on Human Rights 3 8
Jurisdiction:
England and Wales
Citing:
Appeal from – Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc Admn 19-Feb-2003
The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form . .
Cited – Rex v Inhabitants of Eastbourne 1803
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 . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited by:
Appealed to – Regina (Q) v Secretary of State for the Home Department; Regina (D) v Same; Regina (J) v Same etc Admn 19-Feb-2003
The several applicants challenged the implementation of the section, which required an asylum seeker to make his application at the very first opportunity on arriving in the UK, and denied all benefit and support to those who did not do so. A form . .
Cited – K v London Borough of Lambeth CA 31-Jul-2003
The claimant appealed against refusal of judicial review. She had entered the UK, and applied for asylum. She was then found to have contracted a marriage of convenience, and thus become ineligible for support. She appealed and now sought housing . .
Cited – Anufrijeva and Another v London Borough of Southwark CA 16-Oct-2003
The various claimants sought damages for established breaches of their human rights involving breaches of statutory duty by way of maladministration. Does the state have a duty to provide support so as to avoid a threat to the family life of the . .
Cited – Regina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been . .
Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL 3-Nov-2005
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . .
Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights, Benefits
Updated: 07 June 2022; Ref: scu.179864
