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Article 3 Systems and Investigatory Duties: Recent Developments

Wednesday 11 December 2024

Article 3 Systems and Investigatory Duties Recent Developments
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Article 3 Systems and Investigatory Duties: Recent…

For #humanrightsday Alex Goodman KC reviews key developments in the case law of article 3 of the European Convention on Human Rights, including recent domestic applications in the context of the “no recourse to public funds” policy, migrant accommodation and immigration detention.

Introduction

  1. Article 3 of the European Convention on Human Rights (“ECHR”) is an absolute and unqualified right which reads:

    Prohibition of torture
    Article 3
    No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
    The importance of the rights at stake has led to extensive jurisprudence around the prohibition of torture, inhuman treatment and degrading treatment which extends not only to prohibiting direct and operational acts by the state but to requiring “positive” acts by the state to anticipate and obviate article 3 mistreatment. These duties are variously described as “framework”, “systemic”, “procedural”, “preventative”, “proactive”, “prospective” or “anticipatory” duties, as well, in the most recent domestic cases to the “low-level” and “high-level” “systems duty”. Where a breach has occurred, it has also been held that article 3 requires such breaches to be investigated, wrongdoers to be punished, and lessons learned so that the breaches do not recur. In recent years these elements of article 3 have become increasingly important in the armoury of those who seek to vindicate people’s rights. This article considers recent lines of case law in three areas:
    (i) The “no recourse to public funds” policy;
    (ii) Accommodation for migrants;
    (iii) Immigration detention.

    Common Law and Pre-1998 Statutory Protections
  2. Article 3 of the ECHR reflects a key common law protection and prohibition on torture and inhuman or degrading treatment[1]. English Jurists and Judges from John Fortescue in the 15th Century through Edward Coke, Blackstone, to Lord Bingham[2] have all stated that torture and other forms of cruel and inhuman treatment are “totally repugnant to the fundamental principles of English law” and “repugnant to reason, justice, and humanity.” Legally sanctioned ill-treatment in England came to an end with the Bill of Rights of 1689 which provided a statutory prohibition on cruel and unusual punishments.

    Human Rights Act 1998
  3. Section 1 and Schedule 1 of the Human Rights Act 1998 (“HRA 1998”), in incorporating the ECHR into UK law, and sections 3 and 6-8 of the HRA 1998 in securing those rights to everyone in the UK (as required by article 1 ECHR) have strengthened and extended the ambit of pre-existing statutory and common law prohibitions on torture, inhuman and degrading treatment. I conclude below by considering briefly the extent to which the common law is able to keep up with the HRA 1998.

  4. The statutory concept of “torture” is “deliberate inhuman treatment causing very serious and cruel suffering".[1] Torture must also be inflicted for a purpose, such as, inter alia, intimidation. Torture can be psychological as well as physical. A single incident can amount to torture if serious/cruel enough, and a threat of physical torture can amount to mental torture depending on the severity of the pressure exerted and the intensity of the mental suffering caused.[2] By contrast, “inhuman treatment” does not need to be deliberate or intended to cause suffering. The European Court of Human Rights (“ECtHR”) defined “inhuman treatment” and “degrading treatment” in Kudla v Poland (2000) 35 EHRR 198 to include treatment that “caused either actual bodily injury or intense physical or mental suffering”. The minimum threshold incorporates consideration of the individual’s circumstances, including his particular vulnerability by reason of his mental illness and his individual needs for medication and treatment. The most authoritative statement of principle is to be found in the 2019 Grand Chamber judgment of Rooman v Belgium [2019] ECHR 105 at § § 141-147. The Grand Chamber held that “ill-treatment” for the purposes of article 3 does not require physical ill-treatment:

    …In particular, the Court has held that the suffering which flows from naturally occurring illness, whether physical or mental, may in itself be covered by Article 3, where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible…Hence, the detention of a person who is ill in inappropriate physical and medical conditions may in principle amount to treatment contrary to Article 3.

    The rights / duty under article 3 of the ECHR
  5. In R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 66, Lord Brown held at § 19: “Member states are under an absolute obligation not to take steps which would expose people to the risk of article 3 ill-treatment, a negative obligation”.

  6. The most familiar context in which we encounter the broad scope of article 3 is in relation to the removal or deportation of a person from the UK to a country in which they face a risk of ill-treatment. Soering v United Kingdom (1989) 11 EHRR 439 and Ilias and Ahmed v Hungary [2017] ECHR 255 in the ECtHR demonstrate article 3 imposing obligations on states well beyond the duty not to inflict inhuman or degrading treatment. In the latter case, Hungary removed people to Serbia on the basis of an assumption that Serbia was safe and without examining their asylum claim. The Grand Chamber held that was a breach of the procedural obligations under article 3 ECHR (see (§§ 162, 244) but dismissed the claim for a substantive violation. The Grand Chamber awarded € 5000 in just satisfaction. The finding of a violation without a substantive breach (§ 40) confirms there was no inhuman or degrading treatment: the highest was that “the applicants felt threatened and thought that they risked violence.’ The deportation was prohibited not because it would in itself amount to article 3 mistreatment, but because it would expose a person to a risk of such treatment on return. Such risks of ill-treatment may arise where a deportation or removal would expose a person who is dying to “inhuman treatment” (see for example D v UK (1997) 24 EHRR 423) or to intense suffering from ill-health (see Paposhvili v Belgium [2017] Imm A.R. 867 and AM (Zimbabwe) v SSHD [2020] UKSC 17).

  7. The obligations imposed by Article 3 must be exercised in what might be called an anticipatory manner. The Soering line of case law played a crucial role in the Rwanda litigation. In that litigation, the UK’s Divisional Court and Court of Appeal refused to grant interim relief (even applying the low threshold applicable to interim relief). The ECtHR was perhaps less deferential to the executive and granted rule 39 indications to hold the ring. The substantive decisions of the Court of Appeal and then the Supreme Court in R (AAA) v SSHD [2023] 1 W.L.R. 443 (themselves applying the Soering and Illias line of jurisprudence), vindicated the European Court’s approach.

  8. States are therefore obliged not only to prohibit and punish ill-treatment but also to forestall its occurrence: The state must not violate the physical and psychological integrity and the human dignity of persons deprived of their liberty and is required to take preventive measures to preserve human dignity:Premininy v Russia (44973/04) (2016) 62 E.H.R.R. 18, Mouisel v France (67263/01) (2004) 38 E.H.R.R. 34 and Keenan v United Kingdom. It is insufficient merely to intervene after its infliction when the physical or moral integrity of human beings has already been irremediably harmed. Consequently, States are bound to put in place measures that pre-empt perpetration of ill-treatment. Article 3 can therefore be understood as imposing both negative and positive duties on the state including (i) to have in place a clear and effective legal framework and procedure to prevent a breach (the ‘systemic duty’): Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 and VC at §§113-114, 118, and (ii) an operational duty to prevent a breach in the individual case.

  9. Among the positive or procedural obligations that have been identified under Article 3 are the systems duty (with a ‘higher’ and a ‘lower’ level) and the ‘operational’ duty[1] as well as an investigative duty. The ‘systems’ or ‘framework duty was afforded domestic recognition in Smith v Ministry of Defence [2013] 3 WLR 69 per Lord Hope at §68 and Lord Mance at §105. Lord Hope held that at a “high level”, the state must ensure that there are effective criminal law provisions to deter offences against the person, a police force to investigate such offences, and a court and judicial system to enforce those criminal law provisions (citing Osman v United Kingdom (1998) 29 EHRR 245, para 115) and that in certain situations, public authorities fall under a “lower level” duty to adopt administrative measures to safeguard life.

  10. A similar principle is inherent in Article 2.[6] In Öneryildiz v Turkey (2005) 41 EHRR 20 (Grand Chamber) at §§89-90, the ECtHR held, in the related context of article 2 procedural duties, that the state was under a ‘primary duty’ to establish a ‘framework’ to provide effective deterrence against threats to the right to life. The duty applies to the regulation of dangerous activities and includes a compulsory requirement for all concerned to take practical measures to ensure the effective protection of those who might be endangered.

  11. In particular, the lower-level duty arises whenever a public body undertakes, organises or authorises dangerous activities: Öneryildiz at §71. The duty to prevent persons from suffering inhuman or degrading treatment or to provide effective preventive measures applies particularly in the case of children and vulnerable individuals: see X and Others v. Bulgaria Application no. 22457/16 (2 February 2021) at §177 and in cases where a public body is responsible for the welfare of individuals within its care and under its exclusive control—particularly young children who are especially vulnerable: Kemaloğlu v Turkey (2012) 61 EHRR 36, §35. Detained persons are in a vulnerable position and the authorities are under a duty to protect them: Edwards v United Kingdom (2002) 35 EHRR 19 at §56. This includes persons in administrative detention for immigration purposes: Slimani v France (2006) 43 EHRR 49. Johnson J held in R (MG) v SSHD [2023] 1 WLR 284 at §8

    The contexts in which such additional measures are required therefore include hospitals (Calvelli ), prisons (R (Scarfe) v Governor of HMP Woodhill [2017] Inquest LR 234 ), the detention of mentally ill persons (Renolde v France (2008) 48 EHRR 42, para 84 ), immigration removal centres ( R (CSM) v Secretary of State for the Home Department [2021] 4 WLR 110 ), military operations ( R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 ), dangerous industrial activities, such as the operation of waste collection sites (Öneryildiz at para 71) or building sites ( Pereira Henriques v Luxembourg (Application No 60255/00) (unreported) 9 May 2006), safety on board a ship (Leray v France (Application No 44617/98) (unreported) 20 December 2001), packs of stray dogs which were known to be a public health and safety issue ( Stoicescu v Romania (2011) 31 BHRC 523), derelict buildings (Banel v Lithuania (Application No 14326/11) (unreported) 18 June 2013), road safety ( Rajkowska v Poland (Application No 37393/02) (unreported) 27 November 2007) and flooding reservoirs giving rise to a risk of drowning (Kolyadenko v Russia (2012) 56 EHRR 2).

    1. Cases on No Recourse to Public Funds
    R. (on the application of Limbuela) v SSHD [2005] 3 W.L.R. 1014
  12. Lying behind the recent run of cases on the application of article 3 to no recourse to public funds is the decision of the House of Lords in R. (on the application of Limbuela) v Secretary of State for the Home Department [2005] 3 W.L.R. 1014, which concerned the provision of support to destitute asylum seekers prohibited from working in the UK. Lord Bingham’s judgment at §§6-8 discussed what amounts to a breach of article 3 in this context and in particular, at §8
    When does the Secretary of State's duty under section 55(5)(a) arise? The answer must in my opinion be: 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. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.

    Lord Hope commented further on the anticipatory nature of the duty at §§44, 46-47.

  13. Limbuela concerned the Secretary of State’s refusal to provide support to certain destitute asylum seekers who were also prohibited from working or claiming mainstream benefits in the UK. The SSHD only had the power to release such prohibitions where it was necessary to do so to avoid a breach of their rights under the ECHR (his power under section 55 was thus co-extensive with his duty under section 6 HRA 1998). The issue before the House of Lords was in what circumstances the Secretary of State was obliged (and thereby empowered) to support such applicants (see §1 per Lord Bingham; §42 per Lord Hope). It was thus a case about the minimum content of the section 6 HRA 1998 duty in the context of the duty not to act incompatibly with article 3 of the ECHR. The Court held:

    a. Firstly, the regime imposed on asylum seekers (no work, no benefits) fell within the meaning and scope of ‘treatment’ prohibited by article 3 (§7 per Lord Bingham; §56 per Lord Hope; §§67-68 per Lord Scott [AB/v1/6/125, 138 & 141]);

    b. Secondly, section 6 of the HRA 1998 obliged the Secretary of State to provide support where an applicant faced ‘an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life.’ - see §8 per Lord Bingham; §62 per Lord Hope; §73 per Lord Scott).

    From the understanding elucidated in Limbuela, it can be inferred that article 3 contains the negative duty of the state not to create circumstances by which persons are denied the basic essentials of life such that they are exposed to risks of inhuman or degrading treatment (“IDT”), and/or the correlative positive duty to avoid such risks where they arise.

    R (W) v SSHD [2020] 1 WLR 442
  14. InR (W) v SSHD, at §§ 39 to 42, Bean LJ. and Chamberlain J. applied Limbuela in the context of the “no recourse to public funds” (“NRPF”) scheme by which migrants have a condition attached to their leave to remain which prohibits them from claiming benefits and other public funds. The claim concerned a challenge to the policy by which a person could only apply to lift the condition in circumstances where they were already “destitute” (meaning that they did not have adequate accommodation or money sufficient to meet their essential living needs). The Divisional Court held there was an article 3 procedural duty on the Defendant to lift (or not impose) the NRPF condition where an applicant ‘is not yet destitute but will imminently suffer inhuman or degrading treatment without recourse to public funds’ (W §73). In other words, where the denial of access to the welfare state would lead to a person becoming “destitute” (as defined by section 95 of the Immigration and Asylum Act 1999) the state had to act in an anticipatory manner to avoid the risk that such destitution would lead on to inhuman or degrading treatment. That duty was based on (i) the Defendant’s obligations under Article 3 ECHR read with section 6 of the HRA 1998; and in any event (ii) analogous common law principles (W §§42, 60-61).

  15. W identified that the (in light of the judgment, former) Immigration Rule by which NRPF conditions were imposed on migrants’ leave denying them access to the welfare state was unlawful in that it subjected persons in certain specific circumstances to destitution and thereby to the risk of IDT, contrary to the Defendant’s anticipatory duty in article 3 (W at §§42, 60-61, 73).

  16. The Divisional Court held:
    42. This makes two things clear. First, the fact that someone is "destitute" as the term is defined for the purposes of s. 95 of the 1999 Act does not necessarily mean that he or she is enduring treatment contrary to Article 3 ECHR: the threshold of severity which must be reached to make out a breach of Article 3 is higher than that required for a finding of destitution within the s. 95(3) definition. Second, s. 6 of the Human Rights Act 1998 imposes a duty to act not only when someone is enduring treatment contrary to Article 3, but also when there is an "imminent prospect" of that occurring. In the latter case, the law imposes a duty to act prospectively to avoid the breach. (emphasis added)

  17. The Court identified those legal obligations on the Defendant which, if breached in respect of particular classes of individuals, would give rise to unlawful conduct:

    60. The analysis begins with three propositions of law, which, as we understand it, are not in dispute in these proceedings:
    (a) There are some cases in which the Secretary of State is not only entitled, but legally obliged, not to impose a condition of NRPF or to lift such a condition.
    (b) These include cases where the applicant is suffering inhuman and degrading treatment by reason of lack of resources.
    (c) They also include cases where the applicant is not yet suffering, but will imminently suffer, such ill-treatment without recourse to public funds.
  18. The Court found that the Guidance, as it was, failed to make clear to the Defendant’s caseworkers that they were under a duty to act prospectively so as to avoid the risk of breaches of article 3 of the ECHR. The Court acknowledged at §68 that the duty obliges the Defendant not to leave matters too late by requiring applicants to be destitute before lifting (or not imposing) the NRPF condition. The duty is thus breached when persons are subjected to an administrative system that fails to require caseworkers to act so as to avoid imminent destitution (and instead allows people to fall into destitution before they can seek relief from the effects of an NRPF condition which denies access to the welfare state). In conclusion, the Court held:

    73. …The NRPF regime, comprising paragraph GEN 1.11A and the Instruction read together, do not adequately recognise, reflect or give effect to the Secretary of State's obligation not to impose, or to lift, the condition of NRPF in cases where the applicant is not yet, but will imminently suffer inhuman or degrading treatment without recourse to public funds. In its current form the NRPF regime is apt to mislead caseworkers in this critical respect and gives rise to a real risk of unlawful decisions in a significant number of cases. To that extent it is unlawful.

  19. Home Office guidance was amended pursuant to the judgment and order of the court and now provides that “It is mandatory not to impose, or to lift if already imposed, the condition of no recourse to public funds if an applicant is destitute or at imminent risk of destitution without recourse to public funds.” (emphasis added - see version 14 of the Guidance). In other words, the amendment made in order to comply with the article 3 ECHR procedural safeguards required against inhuman or degrading treatment is that a person must be entitled to claim public funds from the point at which they are ‘at risk of imminent destitution’ and not, as before the W case, only upon proof of destitution.

    R (A) v SSHD [2021] 1 WLR 3931
  20. Since W, the UK Supreme Court has provided further clarification on the appropriate test for challenges to the lawfulness of government policies in R (A) v Secretary of State for the Home Department [2021] 1 WLR 3931. The Court reviewed W, noting at § 74 that: ‘…the way in which the court decided the case is consistent with the approach in Gillick. Having identified at paras 60–61 what would be unlawful conduct in an individual case, at paras 62–66 the court construed the relevant rules and the policy as a complete set of instructions to officials of the Secretary of State (of the kind referred to by Rose LJ in Bayer [2020] PTSR 1153, para 214: see para 45 above) which required them to impose or maintain the no recourse to public funds condition in cases where that would be unlawful.’

    R (ASY) v SSHD [2024] 3 WLR 766
  21. The Claimants in these cases were a number of single mothers, each of whom has limited leave to remain in the UK and each of whom has at least one British child. The mothers are each key workers, earning minimum wage, and sole carers of their children. In each case the Defendant had, in the exercise of a discretionary power, imposed on the mothers’ leave to remain a condition which prohibited their having recourse to public funds such as universal credit. The Defendant had imposed the “no recourse to public funds” conditions pursuant to a policy which was held by the Divisional Court in R (W) v SSHD [2020] 1 WLR 4420 to be unlawful (the policy was contained in paragraph GEN.1.11A of Appendix FM to the Immigration Rules and the guidance to caseworkers ‘Family Migration: Appendix 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes’ as of 21 May 2020.

  22. In short, the Defendant’s NRPF policy applied to the Claimants was unlawful because by only allowing for the lifting of the NRPF condition where a person was already destitute, it failed to anticipate and obviate inhuman or degrading treatment. That failure was a breach of duty of a procedural and anticipatory character within article 3.

  23. In each Claimant’s case the Defendant accepted (after the event) that each Claimant and/or their children had, by being unable to access public funds, been rendered “destitute” meaning either that they could not meet their or their children’s essential living needs and/or that they did not have accommodation which was adequate for them. She lifted the NRPF conditions between 40 and 62 days after – on the Defendant’s acknowledgement – the state of destitution had been reached.

  24. The Claimants brought claims under section 7 of the Human Rights Act 1998 alleging that they were victims of a breach of the Defendant’s duty under section 6 of the HRA1998 not to act incompatibly with a ECHR right (article 3) and that they were entitled to damages pursuant to section 8 of the HRA 1998. The Claimants alleged (relevantly) in the particulars of claim that:

    a. Each mother and child became destitute as a result of being subject to the NRPF condition

    b. Each mother was subject to the NRPF scheme which was in R (W) v SSHD declared to operate unlawfully by requiring them to prove that they had already become destitute before the Defendant would lift the NRPF condition.

    c. Each mother and child were denied recourse to public funds where they were entitled to such benefits by the Defendant’s NRPF condition.

  25. The Claimants alleged that the Home Office acted unlawfully, ultra vires section 6 of the HRA 1998 by denying them access to mainstream benefits where they were or would imminently be destitute. In each case, the Defendant had failed to make clear to caseworkers that they were under a duty to act prospectively to avoid an imminent breach of the Claimants’ Article 3 rights by expeditiously lifting the NRPF condition where there was evidence of an imminent risk of a breach of Article 3. In each case, sufficient evidence was provided to the Defendant in the Claimants’ Change of Conditions applications that they were destitute. The Claimants were thereby subjected to an unlawful NRPF Scheme which in breach of their article 3 procedural rights exposed them real risk of an unacceptable breach of their substantive Article 3 rights.

  26. The Claimants sought non-pecuniary damages and by way of pecuniary losses the sums in welfare benefits to which they were entitled, but of which they were wrongfully deprived by the unlawful NRPF condition. The Defendant argued

    It is denied, in particular, that if the Claimants do not establish that their particular circumstances fell below the threshold of severity sufficient to violate Article 3 ECHR they will be entitled to any damages. As a matter of fact, it is denied that the Claimants’ situations fell below the threshold of severity to violate Article 3 ECHR at any stage.
  27.  A trial of a preliminary issue was directed:

    Whether or not the Claimants have a right to damages for breach of their procedural rights under Article 3 ECHR in light of the Defendant’s imposition of [NRPF] conditions on them pursuant to the application to them of the NRPF scheme found by the Divisional Court in W to breach the procedural right under Article 3 of the ECHR.

  28. HHJ Ralton sitting at Bristol County Court found in favour of the claimants on the preliminary issue. He awarded the claimants sums by way of damages, both non-pecuniary and pecuniary. The pecuniary damages were assessed as being the benefits that would have been payable to each claimant for the period from the date of their individual applications to lift the NRPF condition until the NRPF condition was lifted in each case. The non-pecuniary damages were assessed by the judge in the sum of £2,000 for each adult claimant, and £500 for each child.

  29. May J heard the Home Office’s appeal and found in favour of the Home Office in her judgment at [2023] EWHC 196 (KB). The Appellants appealed to the Court of Appeal.

  30. The Appellants said that they were entitled to damages because of the imminent threat of inhuman treatment caused by the SSHD’s policy- not, as the SSHD had pleaded and argued, solely if they could show inhuman or degrading treatment (there as yet being no findings that they had suffered to such an extent).

  31. Fraser LJ giving the judgment of the Court of Appeal in R (ASY) v SSHD held with regard to Limbuela:

    This approach to breach – the important principle that, as Lord Hope put it, “it is not just a question of "wait and see" – is in my judgment central to the issues that arise on this appeal. The House of Lords made clear inLimbuela that there is a duty upon the Secretary of State to act “as soon as the asylum-seeker makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity.” The fact that this was expressed by reference to asylum-seekers (in that case) rather than those with LLTR with a NRPF condition (as in this case) does not, in my judgment, matter. There is a duty if the claimant shows there is an “imminent prospect” that their Article 3 rights will be breached. To adapt the passage of Lord Hope [62] in Limbuela quoted above, with the necessary amendment for this case:
    “as soon as the [claimant with LLTR with a NRPF condition] makes it clear that there is an imminent prospect that a breach of the article will occur because the conditions which he or she is having to endure are on the verge of reaching the necessary degree of severity the Secretary of State has…. the duty under section 6(1) of the Human Rights Act 1998, to act to avoid it.”
  32. The Court applied that approach to the breaches of duty in the cases before it. Allowing the appeal against the order of Mrs Justice May, Fraser LJ, further held:

    The claimants did not only have a right to have a CoC application heard and decided within a reasonable period of time, as found by the judge. Such an approach fails to follow or apply the explanation of the duty that arises once someone is in imminent prospect of becoming subject to inhuman and degrading treatment, a point decided in Limbuela.

    Fraser LJ held that the approach of Mrs Justice May below

    fails to follow the ratio of Limbuela and would mean that there would be no systems duty upon the Home Office upon which a claimant could rely if she were at imminent risk of having her Article 3 rights breached by falling into extreme destitution. I consider that there is such a systems duty, and a claimant at immediate or imminent risk of having her Article 3 rights breached is entitled to rely upon it.

  33. Thus, the Court of Appeal held that there is a “systems duty” imposed on the Secretary of State by article 3 ECHR, a breach of which entitled claimants to make applications for damages under section 8 HRA 1998. They were not only entitled to make such a claim where they had suffered “inhuman” treatment or “degrading” treatment.

  34. The Court also made observations on the timescales for determining applications for lifting NRPF conditions which will be significant to Home Office Administration:

    On the information before us, one of the claimants waited four months after submitting her CoC application before the NRPF condition was lifted, and two others waited two months each. Those time scales do not seem to me to sit properly with dealing with an application from someone who is at immediate risk of falling into such a state of extreme destitution that their rights under Article 3 are about to be breached.

    R (SAG) v SSHD [2024] EWHC 2984
  35. SAG is a successor to ASY. The Claimants challenged (successfully) the failure of the Secretary of State to put in place a system for prioritising change of conditions applications so as to avoid the risk that people subject to NRPF conditions would fall into extreme destitution amounting to IDT. Johnson J held:
    1. 99. Mr Ramsbotham's evidence is that the average time taken to determine a request to lift a NRPF condition is 70 days. Because this is an average, some cases take longer, some not as long. A 70-day wait for a decision might not create an unjustified risk of exposure to inhuman or degrading treatment in some cases. But in other cases, where there is an immediate risk of inhuman and degrading treatment, 70-days is far too long to wait. The fact that the average is longer than could be justified in some individual cases does not demonstrate a breach of the systems duty. What it does show is the need for a sufficient system to prioritise cases or otherwise ensure that applications are expedited where that is necessary. Mr Ramsbotham says that resourcing is reviewed to minimise waiting times "where possible" and that cases are expedited "where appropriate", but that evidence (and the evidence of Mr Martin) is far too vague to show that, in practice, the risk is reduced to a reasonable minimum. Mr Ramsbotham also points to the possibility of bringing a complaint, or writing a pre-action protocol letter in advance of a claim for judicial review. There is no evidence that either of these routes provides a practical and effective means of prioritising cases.

      100.       The decisions that gave rise to the claims in ASY were taken in 2018/19. Nothing in the evidence served by the Secretary of State shows that decision-making is quicker now than it was then, or that a better system of prioritisation or expedition is in place. On the contrary, the published statistical evidence indicates that the average number of days to determine an application has increased from 18 in the last quarter of 2019, to 70 now. That is not due to a sudden unexpected spike in applications. There has been a broadly linear increase in the average time taken in the last 6 years, even though the number of applications is no greater now than it was in 2018. There was a short-term spike in applications by a factor of 6 during the first stage of the covid pandemic, but the average time taken to determine applications now is even greater than it was during that spike.

      101.       I accept Mr Biggs' submission that flawed (or delayed) decisions in individual cases do not show a systemic failure. It is the system that is important, for these purposes, and a failure by an individual caseworker to act in accordance with the system does not show that the system is at fault. I would not find against the Secretary of State on this ground of challenge merely because a decision in one or other of the cases that are before the court took too long (and I deliberately make no finding about that). The average figure is representative of the system that is in place rather than a reflection of an individual long-delayed decision. It is entirely fair to evaluate the system by reference to that average figure, together with such evidence as the Secretary of State has chosen to make available as to mechanisms for prioritisation and expedition.
    2. Article 3 cases on accommodation of migrants
    R (DMA and others) v Secretary of State for the Home Department [2021] 1 W.L.R. 2374
  36. InR (DMA and others) v Secretary of State for the Home Department [2021] 1 W.L.R. 2374 (14 December 2020), Robin Knowles J in the Administrative Court awarded damages for breaches of procedural rights under article 3 of the ECHR, pursuant to sections 6 to 8 of the HRA 1998. DMA was a challenge to systemic, administrative delays in the provision of accommodation to destitute refused asylum seekers under section 4(2) of the IAA 1999. The Secretary of State had accepted a duty to house the applicants (on grounds related to the risk of human rights violations from homelessness) but delayed between 45 days and nine months to provide the accommodation to which they were entitled. Robin Knowles J held that in this context, Article 3 obliged the Defendant to keep delays to a minimum (see §§183-184 & 189). At §§198 to 200, the Court rejected arguments by the Secretary of State that the Claimants had to establish substantive violations of their Article 3 rights: i.e. it was not necessary for them to show that they had in fact been left street homeless or worse. At §§234-5 Knowles J held:

    234. The challenges in the present proceedings admittedly concern the operation of a whole system, and specifically a system to implement decisions made. The individual cases of the claimants in these proceedings reveal a good deal, and it can be debated whether that is enough to show a systemic issue. However, the system-wide figures provided by the Secretary of State through her officials indicate the position across the system, and that the Secretary of State did not know the true position across the system; she believed the position to be one thing when in fact it was another. This is evidence from the full run of cases.

    235. It is also true that while the process is as it is there is a risk to decision making. This is because where section 4(2) accommodation is not being provided within a reasonable time after a section 4(2) decision that there is a duty to provide it, and caseworkers are making the section 4(2) decision on an assumption that the section 4(2) accommodation will be provided within a reasonable time, the effect is that consideration is not being given "adequately [to] recognise, reflect or give effect to the Secretary of State's obligation not to impose, or to lift, the condition of "no recourse to public funds" (see R (W) at [73])
  37. Concluding on damages, Knowles J held:

    341. In my judgment harm was suffered by reason of delay, and to vulnerable people. The harm suffered was not nominal and the delay was far from minimal. I accept that there was no bad faith. The delay was not deliberate, but it persisted and there was a choice not to do more about it. An award of damages is necessary but taken with the declarations, a non-nominal award of £1,000 to each claimant who claims damages is sufficient for “just satisfaction”. The case is not about money. It is the declarations that matter.

    …

    343. It will be clear, as noted and here as an intensely practical point, that the challenges facing the Secretary of State and her officials in providing section 4(2) accommodation are made more difficult where the system is designed to act only at the point where the circumstances have become critical; where a breach of Article 3 is imminent and an individual is not permitted to try to resolve things by earning (where possible) or by recourse to public funds.

  38. The Court granted declarations that the Defendant was and is in breach of her duties under section 4(2) of the IAA 1999 and section 6 of the HRA 1998 by her failure to monitor properly the provision of accommodation to destitute refused asylum seekers (§333). Knowles J’s judgment is particularly interesting in linking the Defendant’s procedural breach of Article 3 to a failure to monitor her administrative system (see §245). It is important to note that the four claimants had not suffered any breach of their substantive article 3 rights: They did not assert that they had been rendered street homeless or without food or shelter. Nevertheless, damages were awarded for breaches of those claimants’ rights under article 3 which were of a more procedural character, (namely, their right not to be subject to an administrative system that failed to avoid the risk of subjecting them to treatment contrary to article 3).

    TMX v LB Croydon [2024] EWHC 129 (Admin)
  39. By way of further recent application of Limbuela, in TMX v LB Croydon [2024] EWHC 129 (Admin) at §121 Alan Bates sitting as a Deputy High Court Judge, upheld claims under articles 3 and 8 ECHR in relation to a local authority’s actions in not providing suitable accommodation to an asylum-seeker holding

    ‘Limbuela is not, if properly read, suggesting that a breach of Article 3 can be found only if the individual in question has been denied access to food, shelter or other necessities for survival. Lord Bingham's focus on "basic necessities" was unsurprising in the context of a case about whether Article 3 required that such necessities be provided for able-bodied asylum seekers who would otherwise be destitute. He was not suggesting (and the Council in the present case has not argued) that there can be no breach of Article 3 through leaving a severely disabled person in unsuitable accommodation, regardless of how detrimental this may be for him, provided he has food and shelter.’

    R (MG) v SSHD [2023] 1 WLR 284
  40. In R (MG) v SSHD [2023] 1 WLR 284 at § 6, Johnson J provided a convenient overview of the principles and authorities regarding the ‘systems’ duty and the ‘operational’ duty under article 3. On the facts, the claim failed: The Secretary of State was not required to initiate an independent investigation into an incident which had resulted in an asylum seeker being seriously injured during an attack by another asylum-seeking resident at hotel accommodation provided by the Secretary of State. The claimant failed to demonstrate that the secretary of state had breached her "systems" or "operational" obligations under ECHR article 2 and article 3 to adopt administrative measures which protected life and safeguarded against inhuman or degrading treatment.

    3. Article 3 Recent Immigration Detention Cases
  41. The most extensive examination of article 3 violations in recent years has been the Brook House Inquiry into abuse in immigration detention. In the background to the inquiry were repeated findings by the High Court that the rights of immigration detainees were being violated in immigration detainees. The first five were reviewed by Jeremy Johnson QC in the first Stephen Shaw Review in 2016: R(S) v SSHD [2011] EWHC 2120, R(BA) v SSHD [2011] EWHC 2748, R (HA (Nigeria)) v SSHD [2012] EWHC 979, R(D) v SSHD [2012] EWHC 2501, R(MD) v SSHD [2014] EWHC 2249. Subsequently ARF v SSHD [2017] EWHC 10 (QB)[7] also involved a finding of an article 3 breach. In a seventh case, VC v SSHD, the Home Office conceded in 2020 the appeal to the Supreme Court on the basis that the facts disclosed an article 3 breach.

    Brook House Inquiry
  42. In R (MA and BB) v SSHD [2019] EWHC 1523 (Admin) the claimants alleged that they had been abused in immigration detention and there was credible evidence of that abuse forming part of widespread systemic failings (including evidence uncovered by the BBC’s Panorama in 2017). May J held that there was credible evidence of article 3 violations and the duty to investigate serious abuses in detention could only be discharged by an inquiry which had powers to compel witness attendance; in which victim representation was funded; and in which hearings were held in public. The case led to the holding of the Brook House Inquiry into immigration abuse in detention- a public inquiry lasting several years.

  43. The Brook House Inquiry into the inhuman and degrading treatment of detainees held hearings from November 2021 until April 2022. Its report was published on 19 September 2023 and the Home Office was required to report back within six months. It has implemented only one of the recommendations of the inquiry, and litigation is now ensuing around the failure to remediate the failures which the inquiry uncovered (one judicial review was heard in November 2024 and several others are in the pipeline). The Chair of the Brook House Inquiry was tasked with examining allegations of inhuman and degrading treatment within a snapshot period of five months in 2017. A number of individuals who had been detained appeared before the Inquiry and gave evidence.

  44. The Chair of the Brook House Inquiry, Kate Eves, made findings as to extensive inhuman and degrading treatment occurring within Brook House Immigration Removal Centre. She rejected the case as presented by the Home Office and G4S that such matters resulted from the actions of a small number of people as opposed to being symptomatic of systemic failure. The Chair identified 19 incidents amounting to inhuman or degrading treatment. These incidents included considerable violence, humiliation and degradation of detainees. The true scale of likely abuse is only apparent when one considers that these findings were made as a result of examining as a sample the experience of 13 detainees. In the five-month period in question, around 3,000 people were detained at Brook House. Most of those detained were never reached by the Inquiry: they had been removed, returned to their home countries, or moved on. The Chair found “the entire safeguarding system in a number of areas to be dysfunctional” (§40). The law and practice around removal from association were “routinely misunderstood, misinterpreted and misapplied by both G4S and the Home Office” (§38), and she found that “this confusion and potential misunderstanding persists under Serco” (Vol. II, §36). Misuses of segregation were a matter of serious concern (§38). There were 241 cases of isolation (removal from association under rule 40) in the five-month period under examination (Vol. II, §34). The Chair found that, in at least 237 of those cases, the use of isolation was not properly authorised.

  45. The Chair found “serious failings in the application of rule 34 and 35” (§32) which amounted to a wholesale failure in processes designed to protect vulnerable detainees like suicidal people and torture victims from being detained, or from mistreatment while in detention, particularly in relation to suicidal people. She found healthcare professionals did not understand their obligations towards detained individuals and failed to appreciate their key safeguarding role (§50). The Inquiry did not receive “any evidence of fundamental changes since 2017” (Vol. II, §33).

    Adegboyega v SSHD [2024] EWHC 2365 (KB)
  46. HHJ Roberts awarded the Claimant £26,000 in respect of article 3 violations (in addition to other damages amounting in total to over £200,000). Cumulatively there was inhuman and/or degrading treatment (§193) from the combination of the following factors: (i) prison-like conditions which were oppressive and made him feel humiliated (§172); (ii) being locked in his cell between 9:00 PM and 8:00 AM, a “manifestly excessive period of time each day” (§174); (iii) lack of any privacy for his cell toilet; (iv) lack of ventilation in his cell; (v) continually unclean toilet (§§175-183); (vi) a failure to provide a safe environment free of drug use (§183); (vii) abusive language by staff (§185); (viii) unnecessary use of personal protective equipment during an incident in the cell involving his cellmate (§186); and (ix) lack of protection from other detainees (§§188-192). Lastly, the breaches were of a systemic nature (§193).

  47. Strictly this is not a “systems” or “investigatory” case. However, it is a decision which could never have been made had May J not directed in R (MA and BB) v SSHD [2019] EWHC 1523 (Admin) that the article 3 investigative duty required an investigation of the kind seen in the Brook House Inquiry, and had that investigation not then taken place.

  48. It is therefore a useful illustration of how the procedural components of article 3 are not an expansion of article 3, but rather they are intrinsic to it being an effective human right. It is only through systems duties being complied with that article 3 violations can be avoided, and it is only with effective compliance with the investigative duty that substantive violations, where they do occur, can be remedied.

    R (CSM) v SSHD [2021] 4 WLR 110
  49. Another successful claim for a breach of Article 3 procedural duties is R (CSM) v SSHD [2021] 4 WLR 110. Bourne J held that the Secretary of State had failed to take reasonable steps to provide the claimant with the necessary medication in detention and to put in place an effective framework for the protection of detainees with HIV. Bourne J held that it was agreed that, in order to establish a breach of the “positive” duties in article 3 (namely, in that case, the systems duty and the operational duty), it was not necessary for a claimant to show actual suffering of serious harm, although the lack of harm may indicate that there was no right to damages (§100). The possible consequences of the defendant’s conduct were sufficient to engage article 3 (§97 and 99). In the circumstances, there had been a breach of the systems duty notwithstanding a lack of serious harm to the claimant and he was entitled to a declaration (§101, 117-118).

    Does the Common Law Protect Rights to a Similar Extent?
  50. Although the appeals brought before the Court of Appeal in R (ASY and Others) v SSHD were in respect of claims for damages brought under the HRA 1998, there is an important and outstanding question of whether the common law would also be capable of evolving a remedy in damages in this kind of case. The common law has certainly engaged with the right not to be subjected to inhuman treatment in a similar way to that of article 3 (which is unsurprising as the English common law was an inspiration for the Convention).

  51. The Divisional Court in R (W) v SSHD, when finding that the NRPF policy violated article 3 ECHR, held that its conclusions “would also follow at common law even in the absence of Article 3” (§60). It said that because it has long been recognised that state policies imposing destitution to the point of starvation are abhorrent to the common law’s “law of humanity”. The Divisional Court in R (W) v SSHD noted that Simon Brown L.J. had held in R v Secretary of State for Social Security ex p. Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 that:

    So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention on Human Rights to take note of their violation. Nearly 200 years ago Lord Ellenborough CJ in Reg. v Inhabitants of Eastbourne (1803) 3 East 103, 107, said:

    'As to there being no obligation for maintaining poor foreigners before the statutes ascertaining the different methods of acquiring settlements, the law of humanity, which is anterior to all positive laws, obliges us to afford them relief, to save them from starving'.
  52. The common law has in other contexts absorbed elements of human rights. For example, the tort of misuse of private information has evolved to absorb some of the substantive protections of article 8 ECHR.

  53. The argument might be that the common law undoubtedly recognises a right not to be exposed by deliberate policies of the state to a risk of starvation and where there is a right there is a remedy. As Lord Hope held at §87 in Chester v Afshar [2005] 1 AC 134, "The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached" and unless an infringed right was met with an adequate remedy, the duty would become "a hollow one, stripped of all practical force and devoid of all content".

  54. In cases such as this the HRA 1998 plays the lead role in vindicating the rights of marginalised people against unlawful conduct of the state. The common law has little option to sit in the wings as an understudy. However, it is important that the common law does not atrophy. If the calls for the abolition of the HRA 1998 and the UK’s departure from the Convention ever eventuate, our common law will need to be ready to perform.

This blog was written by Alex Goodman KC.

  1. Article 3 ECHR protections going far beyond the simple prohibition on the infliction of torture or inhuman or degrading treatment can be illustrated in the following recent examples:

    a. In Commissioner of the Metropolitan Police v DSD [2019] A.C. 196 the Supreme Court held that systemic failures by the police to investigate rapes by John Warboys violated article 3 and victims were entitled to damages. The case clarified that egregious operational failures to investigate by the police, as well as systemic failures could amount to violations of article 3.

    b. In R (CSM) v SSHD [2021] 4 WLR 110 Bourne J held that the Secretary of State had failed to take reasonable steps to provide the claimant with the necessary medication in detention and to put in place an effective framework for the protection of detainees with HIV.

    c. In R (AAA) v SSHD [2023] 1 W.L.R. 443 the Supreme Court held there were substantial grounds for believing that the removal of an asylum seeker to Rwanda would expose them to a real risk of ill-treatment as a consequence of their refoulement to a further country and that the Secretary of State’s policy on removals to Rwanda was accordingly unlawful.

    d. In ASY v the Home Office [2024] 1 WLR 766 the Court of Appeal held that the claimants were entitled to damages for violation of the “low-level systems duty in circumstances where the Home Office imposed no recourse to public funds conditions on the limited leave to remain in the UK of the claimants and failed to put in place administrative measures to ensure that they did not fall into severe destitution constituting inhuman or degrading treatment.


[1] A v Secretary of State for the Home Department [2006] 1 AC 221 at § § 11, 12, 64, 83, 129, 152; R v Secretary of State for Social Security ex parte Joint Council for the Welfare of Immigrants [1997] 1 WLR 275, 292F-G; Reg. v. Inhabitants of Eastbourne (1803) 4 East 103, 107.

[2] A(No2) v SSHD [2006] 2 AC 221 at [11-12]

[3] Ireland v UK (1978) 2 EHRR 25 at §167

[4]In Pretty v. UK (2002) 35 EHRR 1the ECtHR held at §52 that “The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”

[5] See Smith v Ministry of Defence [2013] UKSC 41; [2014] AC 52 per Lord Hope at § 68 and Re Jordan [2019] H.R.L.R. 8

[6] See R (Gentle) v Prime Minister [2008] UKHL 20; [2008] 2 W.L.R. 879 at § 7 per Lord Bingham: ‘As the summary in para 2 of the Middleton case [2004] 2 AC 182 makes clear, article 2 not only prohibits the unjustified taking of life by the state and its agents, but also requires a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life’.

[7] Stephen Shaw (‘Review into the Welfare in Detention of Vulnerable Persons’, Cm9186, January 2016) which included a review of the Article 3 cases by Jeremy Johnson QC. An updated review was published in July 2018 (Cm9661).

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