The Law of Humanity

The first case arose from a challenge to the 1996 Income Support Regulations under the Conservative government, which abolished benefits for asylum seekers who did not claim asylum immediately on arrival, or were appealing a first decision. The challenge was initiated by the Joint Council for the Welfare of Immigrants (R v SSSS ex parte JCWI, QBD), alleging inconsistency with the 1951 Convention on the Status of Refugees (CSR) and the 1993 Asylum and Immigration Appeals Act (Home Office, 1993). The High Court (HC) found no direct interference with rights conferred by the 1993 Act (Scoular, Reference Scoular1997), and that the removal of benefits did not amount to deportation, expulsion or refoulement.Footnote ³ Nevertheless, the Court of Appeal (CA) reversed the decision (R v SSSS ex parte JCWI [1966] 4 All ER 385. Hereafter JCWI, CA). Simon Brown LJ noted the questionable logic of the policy and accepted an argument of conflict with asylum seekers’ right to status determination, contained in the CSR and confirmed in the 1993 Act. In his view, enforced destitution of asylum seekers did amount to constructive refoulement, and could place the UK in violation of the CSR.

The ostensible core of the judgment was that statutory rights were not to be cut down by subordinate legislation, but the decision was much more broadly conceived, arguing that Parliament made a full commitment to the CSR in the 1993 Act, granting fuller rights than asylum seekers had previously enjoyed, some of which would be rendered nugatory by the Regulations. Simon Brown LJ therefore identified an expansionary logic at work, which would be undermined by the Regulations, and ruled that ‘Primary legislation alone could achieve that sorry state of affairs’ (JCWI, CA, p. 13). Criticism of the government went further, in describing the ‘uncompromisingly draconian’ (JCWI, CA, p. 13) effect of the Regulations which ‘necessarily contemplate a life so destitute that . . . no civilised nation can tolerate it’ (JCWI, CA, p. 12). Simon Brown LJ also made reference to an earlier case (R v Eastbourne, 1803), which upheld an obligation to maintain poor foreigners by reference to the ‘Law of Humanity’ (JCWI, CA, p. 12), and moved beyond the core of the legal decision to state:

In effect, the Law of Humanity gave moral weight to the decision, underlining the unacceptable nature of the policy, while Simon Brown LJ's comment on the ECHR issued an implied threat or warning of a bigger debate in waiting, to be played out in later cases. In contrast, the dissenting opinion from Neill LJ stressed the established treatment of persons from abroad as special cases, the primary purpose of the Regulations given rising public costs and the need to strike a balance between collective interests and the rights of asylum seekers. These issues drive much of the ensuing history, and Neill LJ's position is implicit in later attempts to re-establish the policy. Since this case turned on the legality of secondary legislation, it remained open to the government to confirm the policy in primary legislation, which in turn sparked further challenge.

The National Assistance Act

The 1996 Asylum and Immigration Act (Home Office, 1996) enshrined key aspects of the discredited Regulations in primary legislation (see Gillespie, Reference Gillespie1996) and so overcame the negative ruling. The next case (R v Westminster Council ex parte M [1977] 1 CCLR 69. Hereafter M) turned upon S21(1)(a) of the 1948 National Assistance Act (NAA) (Department of Health, 1948), granting residential care to those ‘in need of care and attention’, now put to a use in apparent conflict with the purpose of the 1996 Act. Collins J, in his HC judgment, recognised the intention of Parliament to reverse the JCWI decision (M, p. 13), but in failing to designate exclusion from the NAA they had left open the question of Local Authority liability. Since Parliament ‘could have made (this) clear beyond doubt’ (M, p. 15), the interpretive task was to uncover their intentions in the NAA, which was deemed a source of provision for those unable to fend for themselves. Resource constraints were ruled out of the picture and Collins J cited the JCWI case on the dilemma confronting asylum seekers without benefit and on asylum rights rendered valueless.

As in the Court of Appeal (CA) judgment on JCWI, once the legal core of argument was established there were a number of wider-ranging references, notably to the Right to Life and the Law of Humanity (M, p. 27). Emphasising that the judgment did not frustrate but implemented the will of Parliament as expressed by the NAA, it was declared impossible to believe that Parliament intended lawfully present asylum seekers to be left destitute and at risk of illness and death. If the intent was to deny all assistance, then:

The same judicial technique was in play as in the JCWI CA judgment, by reference to a broader argument awaiting a public airing. However, the subsequent CA judgment on M (R v Westminster Council ex parte M [1997] 1 CCLR 85, CA. Hereafter M, CA) while arriving at the same conclusion, was cast in narrower terms.

In this CA judgment, delivered by Woolf LJ, the NAA was construed as ‘an act which is always speaking’, requiring a reading which addressed contemporary circumstances. Late claimers thus qualified for support under the NAA as a result of their particular predicament: lacking food and accommodation, without knowledge of the language or country and under stress in pursuing an asylum claim. However, the judgment rested purely on a statutory interpretation of the NAA, making explicit the fact that provision could not be claimed by those simply short of money (thereby excluding undocumented migrants). It made no reference to fundamental Human Rights, the Law of Humanity or the CSR, and its impact was explicitly linked to the practical circumstances confronting asylum seekers. The policy message was more limited as a result, but nevertheless made an explicit connection between the circumstances of asylum seekers and their need for basic maintenance. It may therefore seem surprising that the denial of benefit for late claimers should resurface some five years later, under a New Labour government. However, nothing in the judgments above prohibited the removal of asylum seekers from eligibility under the NAA, or the introduction of further deterrent measures.

Interpreting Section 55

A fixed or bright line?

A step towards specifying concrete conditions was taken in Kay J's HC hearing on the case of S, D and T (EWHC 1941 (Admin) Hereafter S, D and T). Though one S55(1) decision was found to be flawed, the main burden of the judgment fell to addressing article 3 and applying the principles established in Q. Seeking a means to assess IDT, counsel representing the asylum seekers reformulated the Pretty definition into ten ways whereby treatment could breach article 3. This reformulation included a distinction between physical and psychological suffering, and was supported by a submission that dignity is the core value of our society. Lord Hoffman (Matthews v Ministry of Defense, para 26) was cited on the ECHR, to make the argument that, although social rights were not included in the convention, without the right to a minimum standard of living, many of the other rights would be meaningless.

It was also argued that the purpose of S55(5) was to prevent a breach of Convention rights, thus requiring anticipation.

The HO again relied on the ECtHR decision on O'Rourke, but Kay J dismissed the case as inapplicable since the claimant's suffering had been self-induced. Though the determining level of suffering was not explicitly addressed, Kay J did state that:

On this basis, all three cases were found to qualify for support under S55(5), and in his closing paragraph, Kay J set out parameters for an IDT test:

The judgment thus moved closer to a concrete definition of IDT for S55(5) purposes. Humiliation and loss of dignity were critical, and they were placed in the context of contemporary values by reference to Simon Brown LJ's condemnation of ‘a life so destitute that . . . no civilised nation can tolerate it’ (JCWI, CA, p. 12).

This still left scope for interpretation in the application of the ruling, though of the three individual cases in S, D and T only T was appealed, yielding a judgment later criticised by the HoL. Although Q, EWCA had established the absolute nature of article 3, Kennedy LJ accepted an argument for restraint:

This came close to turning an absolute right into a qualified right, to be determined by resource availability. Furthermore, HO counsel argued that a claimant must be able to present a stronger claim than the general mass of asylum seekers, or the situation would become unworkable, again a position more appropriate to a qualified right. The judgment was also significant in preserving the gap between destitution for NASS purposes and destitution which might trigger article 3 protection.

Eschewing any ‘simple test’ (T, para. 16), comparison was made between S and T. The case of S was recognised as inexorable – sleeping rough, forced to beg and suffering psychological disturbance and weight loss, he was verging on the required degree of severity. T had mental health problems he did not recognise, and was living (with some limited funds) at Heathrow in breach of local by-laws. The conclusion was that: ‘the boundary – which is not a fixed or bright line – lies somewhere between the two’ (T, para. 18), and T fell outside the scope of article 3. The case turned in part on a temporal issue and privileged the physical condition of the claimant above his loss of dignity. The first policy change followed some three months later, when the acceptable period for ‘as soon as reasonably practicable’ was extended from 24 hours to 72 (Refugee Council, 2004: 11).

Wait and see or common sense?

Despite the rulings thus far, the application of article 3 was still unresolved for want of a clear test of the level of severity required for a breach (cf. Cassese, Reference Cassese1991). The next four judgments demonstrate two contrasting approaches to how much suffering the application of section 55(1) could inflict before triggering article 3 protection. As we will see, the choice between them was critical in determining the feasibility of the policy in practice.

Positive negative and absolute rights

The CA judgment on Adam, Limbuela and Tesema (R v SSHD on application of Adam, Limbuela and Tesema, EWCA. Hereafter Limbuela, EWCA) began with Laws LJ's dissenting judgment. This reopened the question of treatment in a manner that placed policy considerations to the fore. Laws LJ distinguished between article 3 breaches through violence by state servants, and violations stemming from acts or omissions by the state which expose the claimant to suffering; the key issue being the degree of direct state responsibility. There was a negative obligation on states to refrain from inflicting harm, but flexibility in article 3 to address other circumstances that might imply the need for protection and therefore a positive obligation. For Laws LJ only negative obligations were absolute, while positive obligations required a balance between ‘the general interests of the community and the interests of the individual’ (Limbuela, EWCA, para. 61). The effect was to undermine the absolute nature of article 3 in the light of policy objectives.

The legal reality was presented as a spectrum whereby in certain cases government action which caused suffering was justifiable. In deciding where the balance lay, account should be taken of the severity of the suffering, its origin and government purpose. Laws LJ recognised the ECHR as a living instrument, with an elastic quality, but argued that this flexibility should not be used to impose obligations beyond those originally envisaged in the Convention (Limbuela, EWCA, para 73)

Declining to act in the face of destitution, when there were no additional considerations, was not a breach of article 3 (para. 75). Having introduced government purpose into the equation, Laws LJ argued anything other than a ‘wait and see’ approach ‘would plainly emasculate the effect of S55(1)’ (para. 78). He thus gave policy factors considerable weight, and notwithstanding the 600 asylum seekers who would suddenly be without support (para. 79), allowed the HO appeal, with the admonition:

This closing statement leaves hanging the role of moral principles in the interpretation of a statute or, as other judges have put it, an interpretation guided by the standards of civilised society though, in the event, Laws LJ held a minority view.

Carnwath LJ also adopted a policy focus, but to very different effect. He made reference to 650 cases awaiting a decision, the difficulty of applying the Pretty criteria and the absence of any single test that could resolve the issue. Q, EWCA was taken to establish that lacking charitable assistance and with no other means of fending for himself, a claimant would qualify for support without evidence of further suffering. However, Carnwath LJ queried other aspects of the decision in Q to argue that suffering by the destitute flowed from the absence of charitable support rather than treatment by the state. He therefore accepted the ‘spectrum’ analysis but nevertheless found a breach of article 3. In his view, the Convention required the state:

For Carnwath LJ, this implied more than acting as a long stop in individual cases:

At odds with his endorsement of the spectrum analysis, Carnwath LJ then asserted the absolute and fundamental nature of article 3, noting the very limited scope for deference to the Secretary of State (Limbuela, EWCA, para. 128). He found the approach of other judgments far too narrow for a problem that was systemic and related to the scale of numbers involved, such that individual solutions would not suffice. The third opinion, from Jacobs LJ, was on similar ground and also in agreement with the ‘spectrum analysis’, though finding this did not resolve the question of where on the spectrum a case fell. Jacobs LJ went further than Carnwath LJ in advocating a systemic approach:

Hence he offered an approach which, instead of focusing on degrees of suffering, a spectrum of accountability and individual rights, considered the collective impact of the regime.

The judgment overall found against the HO appeal and thereafter S55 was in effect suspended (Joint Committee on Human Rights, 2007, para. 90), except in maintenance-only cases. However, there was still no clear specification of a concrete test, though this eventually came as a result of a further HO appeal, to the HoL.

Resolution

In the HoL appeal (Adam, UKHL), the statements of caseFootnote ⁸ for each side show clearly contrasting orientations: for the HO, an interpretation of the ECHR in terms of its original focus, an assertion of the limits of positive obligations and an interpretation in the context of legitimate policy objectives and proportionality; for the claimants, an emphasis on the ECHR as a living instrument, on the absolute nature of article 3 and on a defence of fundamental rights over and above policy objectives.

Lord Bingham opened by recognising that the policy and purpose of S55 were a legislative choice and therefore not at issue. The question was rather what was required by the ECHR, and he accepted the ruling in Q which confirmed the regime as treatment for the purposes of article 3. On the IDT threshold, he recognised that, while many factors could affect a judgment, being compelled to sleep on the street, OR being seriously hungry, OR being unable to satisfy the needs of hygiene would qualify. A concrete test was thus finally provided, while Laws LJ's spectrum approach was dismissed by Lord Hope as having no foundation in the jurisprudence of the ECtHR. For Lord Hope, the application of S55(1) amounted to an intentionally inflicted act, which removed from asylum seekers the ability to fend for themselves, and required positive intervention as a remedy. Where the state was directly responsible for the action, this qualified as treatment, the prohibition was absolute and there was no question of balance with regard to legitimate government policy.

The word avoid was identified as the key to when preventive action was required; ‘it was not just a question of wait and see’ (Adam, UKHL, para. 62). Real risk was again deemed too generous, so ‘verging on’ and the ‘imminent prospect’ of a breach stood as the critical test. Lord Hope did not translate this directly into concrete indicators, but identified a safety net of wide reach, embracing all sorts of ‘inhumanity and degradation’, thus making implicit reference to dignity (Adam, UKHL, para. 59). Lord Scott agreed with the HO that treatment required more than failure, but he found that the whole regime imposed on asylum seekers could meet this test. Emphasis was again placed on the need to avoid a breach, and while in this, each case must be judged on its facts:

Lord Scott also stressed not only physical suffering, but ‘growing despair and loss of self-respect’, and like Lord Hope made implicit reference to dignity. Similarly, Lady Hale read article 3 as a reflection of:

She also expressed unease with the spectrum approach, though recognising two types of state responsibility for suffering: through direct infliction of the suffering or through failure to provide protection. S55 was construed as a clear case of the first:

Judged by the ‘standards of our own society’ (Adam, UKHL, para. 78), the result was deemed inhuman and degrading, and Lady Hale endorsed the Bingham criteria.

Finally, for Lord Brown state responsibility was the key, with no room for policy justification. While recognising that S55 necessarily contemplates homelessness for some, and that there is only limited scope for any positive obligation to house the homeless, Brown saw it as:

He emphasised the deliberate nature of the state's involvement, and quoted the Prime Minister on rough sleeping as a scandal in a ‘modern and civilised society’ (Adam, UKHL, para. 99), thus invoking contemporary moral standards. Doubting the practical impact of the policy, he found the consequences must be regarded as intended and therefore inhuman and degrading, or unintended and involving hardship disproportionate to the policy's aims. Either way, street homelessness crossed the article 3 threshold.

The decision was unanimous, and the issue on which the judgment turned was the significance of state responsibility in engaging article 3. A rejection of the spectrum approach and the involuntary nature of the situation confronting late claimers confirmed S55 as treatment, and human dignity was endorsed as a central principle. The use of article 3 in these rulings thus strikes a contrast to the tradition of judicial deference in immigration law, and serves as a positive illustration of the impact of the HRA (cf. Stevens, Reference Stevens2004). While there were references to the non-political nature of the judicial role (Adam, UKHL, paras 2, 14, 85), these were partially belied by indirect statements of moral censure (Adam, UKHL, paras 66, 77, 99), and an awareness of the broader significance of the polarised positions represented by the case (Adam, UKHL, paras 13, 53, 73, 101).