Court decides whether asylum seeker is destitute

In R (T) v Home Office (23 September 2003) the court of appeal
heard the latest round of the litigation concerning the plight of
asylum seekers from whom all support had been removed.

This situation arises when the home office decides that a person
has not claimed asylum as soon as they can when they arrive in the
UK. Section 55 of the Nationality, Immigration and Asylum Act 2002
gives the home secretary the power to remove all support from an
adult asylum seeker in this situation. There is one saving in that
any such removal must not lead to a breach of a person’s
right not to be subjected to inhuman and degrading treatment for
the purposes of article 3 of the European Convention of Human
Rights.

The high court decided that simply being destitute was not
sufficient to claim a breach of article 3. A person had to have
absolutely no support from anyone, and be at least on the verge of
being in the most desperate straits imaginable. The high court
decided that two asylum seekers who were clearly starving and ill
and living rough in the open had reached that state, as had a third
asylum seeker, T, who had been living rough at Heathrow for six
days before an interim court order was obtained.

The home office appealed only T’s case. Somewhat
surprisingly the court of appeal agreed. The court held that T had
not reached the degree of destitution required given his access to
the public facilities at the airport. 

There were some hopes that the court would provide detailed
guidelines as to when what level of destitution amounted to inhuman
and degrading treatment. However, the judgment largely leaves that
question open, and the scores of applications to the high court
every week for injunctions are bound to continue. The burden of
proving that complete destitution has been reached will remain on
the asylum seeker.

The court did mention one other area of concern for welfare
agencies. T suffered mental health problems. The court felt that
the answer in his case may be to consider assistance from a local
authority under section 21 of the National Assistance Act 1948
which allows accommodation to be provided for ill, disabled and
elderly persons.  Where it appeared that a person had a hopeless
asylum case the court also implied that an early refusal and
subsequent detention might provide T with the assistance he
needed.

Comment: Lawyers acting for asylum seekers have
urged the courts to find that simple destitution caused by
withdrawal of support is inhuman and degrading in all cases.
Unfortunately, the courts have gone down the road of deciding in
each indivdual case the act level of desperation sought by an
asylum seeker. However, local authorities need to remain alive to
the possibility that destitute asylum seekers may be entitled to
community care services and to ensure that  assessments are carried
out quickly. T is hoping an appeal to the House of Lords will find
a more sympathetic response.

Stephen Cragg
Doughty Street Chambers