Facts: 4 healthy, able-bodied asylum-seekers faced destitution because they claimed asylum late, by virtue of section 55 of the Nationality, Immigration and Asylum Act 2002.

Judgment: the House of Lords (Lords Bingham, Hope, Scott, Lady Hale and Lord Brown) held that:

1) Article 3 imposes an absolute prohibition on torture or inhuman or degrading treatment or punishment. While the prohibition requires the state or public authority to refrain from treatment of the kind it describes, it may also require the state or public authority to do something to prevent its deliberate acts which would otherwise be lawful from amounting to the prohibited ill-treatment. There is no sound basis for the distinction drawn by the Court of Appeal between state violence and acts or omissions which arise in the administration or execution of government policy. Where inhuman or degrading treatment results from acts of omissions for which the state is directly responsible, the state is under an absolute obligation to refrain from it.

2) The regime imposed on those who do not make an asylum claim as soon as reasonably practicable after their arrival in the UK constitutes ‘treatment’ within the meaning of Article 3. The Secretary of State is directly responsible for all the consequences that flow from the decision to withdraw support bearing in mind the prohibition on asylum-seekers from earning money in order to fend for themselves.

3) Whether treatment attains the minimum level of severity required in order to be ‘inhuman or degrading’ depends on all the circumstances of the case including the nature and context of the treatment. The test is not more exacting where the treatment is the result of legitimate government policy. Treatment will be inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. Destitution for the purposes of section 95 of the 1999 Act is not sufficient to give rise to a breach of Article 3. The question is whether the treatment to which the asylum-seeker is being subjected by the entire package of restrictions and deprivations that surround him or her is so severe that it can properly be described as inhuman or degrading treatment. A variety of factors are relevant to that assessment including age, gender, health, availability of alternative support and the length of time that the person has spent or is likely to spend without support. The threshold will be crossed where a person has no means and no alternative sources of support, is unable to support him or herself and is denied shelter, food or the most basic necessities of life.

4) The purpose of section 55(5)(a) is to prevent a breach from taking place before it occurs. The Secretary of State is therefore under a duty to provide support as soon as the asylum-seeker makes it clear that there is an imminent prospect that a breach of Article 3 will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity.

5) In the claimants’ cases, there was sufficient evidence to justify the conclusion that there was an imminent prospect that the way they were being treated by the Secretary of State would lead to a condition that was inhuman or degrading.