Home > Cases > R. (on the application of Q) v Secretary of State for the Home Department

The Secretary of State appealed against a decision allowing Q, six asylum seekers, provision for support notwithstanding that that they had failed to satisfy him that they had advanced their claims for asylum “as soon as reasonably practicable” as required by the Nationality, Immigration and Asylum Act 2002 s.55 . The Secretary of State contended that (1) the test of whether there was good reason not to claim asylum as soon as practicable was an objective one; a subjective test, which took into account the state of mind of the asylum seeker, would defeat the object of s.55; (2) notwithstanding that in extreme circumstances the Human Rights Act 1998 Sch.1 Part I Art.3 imposed a positive obligation on the State to provide support for an asylum seeker, failure to provide support to a destitute asylum seeker could never constitute treatment within the meaning of Art.3 and thus there would be no breach of the obligation to refrain from inhuman or degrading treatment, and (3) the system was fair to applicants and the reasoning adopted in coming to the decision to grant support on the basis of procedural impropriety had been unsound.

Held, dismissing the appeal, that (1) the judge had been correct in deciding that each of the six decisions under consideration had been vitiated as a result of deficiencies in the procedure. When deciding whether an asylum seeker had claimed asylum as soon as reasonably practicable, it was right to have regard to the effect of anything that the asylum seeker was told by his or her facilitator. The burden of satisfying the Secretary of Statet that he or she had claimed asylum as soon as reasonably practicable after his or her arrival in the United Kingdom was on the applicant and thus the test was a subjective one, Wall’s Meat Co Ltd v Khan [1979] I.C.R. 52 CA (Civ Div)considered; (2) the regime that was imposed on asylum seekers who were denied support by reason of s.55(1) of the 2002 Act constituted “treatment” within the meaning of Art.3 as treatment implied something more than passivity on the part of the State. However, the fact that there was a real risk that an individual asylum seeker might be reduced to a state of degradation did not in itself engage Art.3, Pretty v United Kingdom (2346/02) [2002] 2 F.L.R. 45 ECHR considered, and (3) the system had some unsatisfactory features and was therefore unfair to applicants. The purpose of the screening interview should be spelled out more clearly to the applicant, interviewers and decision makers should be properly instructed as to what was meant by “reasonably practicable” and the completion of a standard form questionnaire was insufficient to provide a full picture on which the Secretary of State could base his decision. Interviewing skills and a more flexible approach were required in addition to further enquiries in order to avoid an infringement of the applicants’ Convention rights.

Samantha Broadfoot appeared for the Secretary of State.

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