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= R. (Adam, Limbuela and Tesema) v. Secretary of State for Home Department =

R. (Adam, Limbuela and Tesema) v. Secretary of State for Home Department was a case decided on 3 November 2005 by the UK House of Lords that determined whether or not a delay in initiating an application to seek asylum limited an individual from receiving access to state relief. Furthermore, the case questioned whether this denial of state relief constituted a breach of the European Convention on Human Rights 1950 ('ECHR').

The Secretary of State for the Home Department ('Home Department') refused the claimants state support under Section 55 of the Nationality, Immigration, and Asylum Act 2002 ('the Act'), under the basis that the asylum seekers did not make their claim as soon as reasonably practical. Article 3 of the ECHR prohibits torture, inhuman or degrading treatment and/or punishment of individuals. In this case, the court observed that due to this refusal of state support, Yusif Adam, Wayoka Limbuela and Binyam Tefera Tesema were exposed to the risk of being homeless, were without access to food and were prevented from working while waiting for their application to be processed. These circumstances were thus considered to be an Article 3 violation, and led the House of Lords to grant state relief to the claimants under Section 55(5) of the Act.

Following this judgment, asylum seekers who apply late may receive accommodation and financial support if the alternative is a real risk of destitution and a violation of human rights.

Background
Following Royal Assent on 7 November 2002 the then Minister for Citizenship and Immigration, Beverley Hughes, ushered in the Act. This required all adult asylum seekers make an application for asylum support. Section 55 (1) of the Act prevents the Secretary of State and other public authorities in the UK from providing support and accommodation to asylum seekers unless satisfied that the applicant's claim for asylum was made as soon as reasonably practicable after their arrival in the UK. A three-day time frame is used as a general guideline to satisfy this as soon as reasonably practicable test, however dependent on the particular circumstances of each individual it may be decided that the applicant could not have claimed within that period, or that the applicant should have claimed earlier.

Yusif Adam arrived in the UK from Sudan, Wayoka Limbuela arrived in the UK from Angola and Binyam Tefera Tesema arrived in the UK from Ethiopia. Each of the claimants claimed asylum the following day upon arriving in the UK. All three asylum claimants were refused state report due to the operation of Section 55 of the Act, and this limited their access to adequate shelter, food and other necessary requirements until they were later granted interim relief following the judicial review of their applications.

Adam had been sleeping rough in a shelterless car park from October 16 2003 to November 10 2003, almost one month. When Limbuela's application for judicial review was heard he had already been forced to sleep rough for two days and beg for food due to the lack of state support. Other evidence of destitution presented to the hearing judge included a series of medical complaints Limbuela was suffering from that were exasperated by Secretary of State's refusal. Similarly, Tesema was about to be evicted from his emergency accommodation and if he had been, he would have had no access to housing, no money for food and no private sanitary facilities.

Adam, Limbuela and Tesema were each successful in their application for judicial review in the Administrative Court, which was later upheld by the Court of Appeal. The Home Department then appealed to the House of Lords. The Appellant, the Home Department, refused the claimants state support under Section 55 of the Act which allowed them to refuse support to asylum seekers who did not make their claim for asylum as soon as reasonably practicable. The Court of Appeal, and subsequently the House of Lords observed this legislation with reference to Section 55(5) that allows an exception that provides that support should still be provided to asylum-seekers if a failure to do so would violate their human rights.

Article 3 of the ECHR states that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Hence, Adam, Limbuela and Tesema responded by arguing that their circumstances satisfied the provision in Section 55(5)(a) which entitled them to receive state support from the Home Department due to violation of their rights under the ECHR (within the meaning of the Human Rights Act 1998).

The charity Shelter, and the National Council for Civil Liberties and Justice provided written submissions in support of the appellants as Interveners. The Appellant was represented by Nigel Griffin QC, John-Paul Waite and Kate Grange (instructed by Treasury Solicitor). The Respondents were represented by Nicholas Blake QC, with White Ryland as instructing solicitors for Limbuela and Tesema and H C L Hanne & Co as instructing solicitors for Adam.

Decision
Firstly, the House of Lords had to determine in what circumstances did the Secretary of State become obliged to provide state support and relief to an asylum seeker who did not make their application as soon as reasonably practicable after arriving in the UK under Section 55 of the Act.

Secondly, the House of Lords needed to determine in what circumstances would the refusal of state support and relief by the Secretary of State constitute a breach of Article 3 of ECHR rights.

Boundary between Positive and Negative Obligations
The distinction between positive and negative duties is mirrored in the traditional division between civil and political rights which are designed to "restrain the State from intruding", and socio-economic rights which "elicit protection by the State". Lady Hale described the boundary between a positive and negative obligation as not "clear cut", and Lord Brown stated that ‘Time and again these are shown to be false dichotomies.’

Limbuela establishes this as a firm limiting principle in the application of Convention jurisprudence; Hickinbottom J summarises the position at para 91:

''“The nature of a state’s obligation under article 3 is clearly set out in Limbuela. The article is aimed at positive acts of state-sponsored violence. If they meet the threshold of seriousness (to which I shall come shortly), such acts are absolutely prohibited. Where the acts are not directly those of the state, the state will only be the subject of this prohibition if it supports such acts by positive, intentionally inflicted acts of its own. What amounts to “positive action” will no doubt depend upon the circumstances of a particular case and, in some circumstances, the state may be required to take positive steps to prevent ill-treatment at the hands of others (see, e.g., R (Bagdanavicius) v Secretary of State for the Home Department [2005] UKHL 38 at [24] per Lord Brown of Eaton-under-Heywood, E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66 at [44] per Lord Carswell, and R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin) at [65]).”''

Ultimately, Lord Brown and Lord Hope agreed that it was more important to view the issue in terms of whether "the state is to be properly regarded as responsible for the harm inflicted (or threatened) upon the victim" thus the question of whether there was a positive obligation, rather than mere inaction, was not useful in this decision.

Standard of Proof required to trigger Section 55(5)(a)
Lord Bingham identified that the Home Department's statutory duty was triggered:"'when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life'."It was determined that although the State had not inflicted violence or punishment on the Respondents, they were still held responsible for leaving them in a position of destitution for it was the statutory regime itself that removed any from of support to access food, shelter and employment opportunities that would assist them in supporting themselves.

Lord Scott further acknowledged that the Home Department's mere failure to provide a minimum level of social support could not engage Article 3, but saw it as different if the statutory regime imposed restrictions on an individual's access to basic social security and other state benefits, which he or she would be entitled to if not for the legislation.

Article 3 of the EHCR Threshold
The House of Lords applied the precedent in Pretty v. United Kingdom [2002] 35 EHRR 1 in order to determine if the refusal of support violated Article 3 of the ECHR.

Significance
The result of this case was particularly relevant due the political climate at the time, where issues surrounding the integrity of the UK's borders and the asylum process were under serious debate. It marked the development of a doctrine of positive obligations under the ECHR and the UK's growing global commitment to protecting universal human rights through its legislative frameworks. However, whilst this case's decision was a progressive interpretation of Article 3, the threshold remains high and courts will continue to be bound by this provision in some circumstances.

Universal Human Rights
This case highlighted the importance of the universality of human rights obligations. Rather than focusing on 'citizens' rights, the outcome of this case heralded a major legislative change that moved the UK Government away from discriminatory social policies and provisions, and more towards protecting human rights. The ECHR was drafted to represent an egalitarian vision of human rights, where all rights are guaranteed by virtue of existence. However, the discriminatory application of Section 55 in this case was one example of how the UK government experienced the struggle between ensuring equality and non-discrimination in its treatment of asylum seekers, whilst also protecting citizen's rights and democracy when allocating resources for the people within its jurisdiction.

Academic Sandra Fredman noted that attempts to draw a clear distinction between negative and positive obligations has been strained by the need to balance civil and political rights on one hand, and socio-economic rights on the other when it comes to human rights cases. Fredman further states that nowhere is the difficulty in achieving this balance more apparent than in cases brought before the courts by asylum seekers who have had their state relief withdrawn and are as a result living in dire circumstances.

Response
A 2006 Refugee Action Report stated that preceding the judgment of this case, approximately 14760 asylum seekers applied to the Home Department for support and were then referred for a decision under Section 55. Out of the applications who were considered to have applied on time, not including those with dependents, 9410 were refused on the basis that they did not meet the threshold under Section 55 of the Act. The following year it was reported that 1565 applicants were referred for a decision, and only 225 applicants were refused support by the Home Department.

Housing charity Shelter, which supported the three claimants in their cases welcomed the decision. Shelter's director, Adam Sampson, said: "This judgment is a victory for very vulnerable people who are in desperate need with nowhere to turn. We hope that it will now not only implement the court's guidance, but also undertake a thorough review of Section 55 called for by the home affairs select committee."

The Home Department admitted section 55 was "a tough measure", it said: "The essential point of section 55 is that we are not prepared to use taxpayers' money on supporting people who make speculative asylum claims or who have some alternative source of support." Furthermore, they stated that they endeavoured to ensure that economic migrants were not abusing section 55 and would not be supported at the public's expense.