21.62R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364, (2003) 6 CCLR 136
It was incompatible with Article 3 ECHR to refuse support to destitute asylum-seekers
Facts: the claimants were asylum-seekers excluded from asylum support by statute, subject to the ECHR if, as was the case, the Secretary of State for the Home Department concluded that they had failed to claim asylum as soon as reasonably practicable. Each had failed to claim asylum on arrival in the UK, but had done so a day or so later.
Judgment: the Court of Appeal (Lord Phillips MR, Clarke and Sedley LJJ) held that the test of ‘as soon as reasonably practicable’ was not limited to focussing on physical obstacles but required consideration of all the claimant’s circumstances including what instructions or advice he had been given by an agent:
37. 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 Court of Appeal went on to hold that the regime imposed on late-claiming asylum-seekers amounted to ‘treatment’ for the purposes of Article 3 ECHR:
56. 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).