Court of Appeal rules damages may be awarded for…

ASY and Others v SSHD [2024] EWCA Civ 373

Alex Goodman KC was instructed by Deighton Peirce Glynn in this latest chapter of a long-running sequence of cases challenging the “no recourse to public funds” policy. Below is his summary of the judgment and thoughts on where next.

1. The Court of Appeal today handed down an important judgment concerning the availability of damages under section 8 of the Human Rights Act 1998. The case confirms that damages can be awarded where a person is subjected to a system that puts them at an imminent risk of inhuman or degrading treatment without having to prove that the victim did in fact suffer inhuman or degrading treatment contrary to article 3 ECHR. I set out below a summary of what the case decided and some thoughts on its implications.

The Facts

2. This case concerns four individual single mothers of British children resident in England each of whom was granted limited leave to remain (“LLTR”) subject to a no recourse to public funds condition (“NRPF”) in successive periods of 30 months, on a ten-year route to settlement. The effect of the NRPF condition is to make the person upon whom it is imposed ineligible for almost all benefits that would otherwise (absent the condition) be paid to the person from public funds. Given such applicants for leave to remain are entitled to work, the expectation is that they will support themselves financially. Typically women involved in this litigation had one or more children with a British partner and were working in the care sector when they suffered a change of circumstances which made them unable to work and support their children. In one case for example, the mother’s British partner left her to look after their child and she was about to give birth to another child when she came to seek the assistance of the state to be able to feed her and her children.

3. The NRPF condition can be lifted upon application by an individual in any particular case, by making what is called a change of condition application (“CoC application”) to the Secretary of State. In R (W by his litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin); [2020] 1 W.L.R. 4420 the Divisional Court (Bean LJ, Chamberlain J) held that the policy under which such applications were determined at that time was unlawful because the guidance under which caseworkers at the Home Office considered CoC applications, against the policy that was then in force, failed properly to reflect that the Secretary of State is under a duty to prevent infringement of a person’s rights under Article 3 of the European Convention of Human Rights (“ECHR”) and thereby the policy and guidance was contrary to section 6 of the Human Rights Act 1998 (“HRA 1998”).

4. Each of the Appellants made a CoC application; this was successful after a period of time (but not immediately) and in some cases more than one CoC application was required; and this was granted because it was recognised by the Home Office that they were destitute.

5. In each of the cases, a common issue is whether the claimants are entitled to damages for breaches of their “procedural rights” under Article 3 of ECHR. A preliminary issue was ordered in the High Court on 30 June 2021 by HHJ Cotter QC. Because of problems with the availability of judges to hear the case, the claims were subsequently transferred from the High Court to the County Court. By his judgment dated 28 October 2021 and order dated 28 January 2022, HHJ Ralton sitting at Bristol County Court found in favour of the claimants on the preliminary issue. In the course of his judgment at [8], the judge stated that:

“The essential question in this case is whether the Home Office can be made liable in damages under section 8 of the Human Rights Act 1998 for applying an unlawful scheme to the claimants which could have resulted in a breach of their Article 3 right not to be subjected to degrading or inhuman treatment in the form of extreme destitution.”

That issue was answered in the claimants’ favour in his judgment.

6. In his subsequent judgment of 19 January 2022, HHJ Ralton 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 CoC applications 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.

7. 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.

8. The NRPF condition was lifted by the Home Office because each claimant was in a state of destitution (meaning they could not meet their essential living needs), not because they were suffering inhuman or degrading treatment (a state beyond destitution, such as hardship arising to a vulnerable person from being street homeless).

The Appellants’ Case

9. The Appellants said that the 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 have suffered to such an extent). They relied on the decision of the House of Lords in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66; [2006] 1 A.C. 396.in which Lord Hope, considering provisions which permitted the grant of support to asylum seekers only to avoid an article 3 breach held at [62]:

“A state of destitution that qualifies the asylum-seeker for support under section 95 of the 1999 Act will not be enough. But 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 Secretary of State has the power under section 55(5)(a), and the duty under section 6(1) of the Human Rights Act 1998, to act to avoid it.” (emphasis added)

10. Baroness Hale said this:

“[78] The only question, therefore, is whether the degree of suffering endured or imminently to be endured by these people reaches the degree of severity prohibited by article 3. It is well known that a high threshold is set but it will vary with the context and the particular facts of the case. There are many factors to be taken into account.”

The Judgment of the Court of Appeal in R (ASY) v SSHD

11. Considering this component of the state’s obligations pursuant to article 3, Fraser LJ giving judgment of the Court of Appeal in R (ASY) v SSHD held:

“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 in Limbuela 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.”

12. 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.”

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.

13. 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.”

Evidence suggests that such delay is often witnessed in cases such as these. The Home Office will need to improve its processes if it intends to maintain its policy of denying benefits to migrants on the current blanket basis.

14. The Court commented on quantum and endorsed the modest awards by the County Court judge in respect of the non-pecuniary element (£2,000, and for each child £500 as well as his approach to pecuniary losses (he awarded sums reflecting the amount of benefits which would have been claimed but for Home Office delays in determining the NRPF change of conditions applications). The Court however cautioned that awards of damages under section 8 of the Human Rights Act 1998 should be made in light of “all the circumstances”.

Wider Context and Implications of the Judgment

15. The four Appellants in this case are seen as “lead” cases of scores of claims stayed behind them in the County Court in the wake of the findings of the Divisional Court that the NRPF scheme was incompatible with article 3 ECHR.

16. I have been working with DPG and on public interest cases around no recourse to public funds since 2018, and since 2021, with Ben Amunwa as junior counsel. In that time we have successfully settled dozens of claims for judicial review by women or their children who have been wrongly denied recourse to the welfare state with the consequence that the foreign mothers and British children were left living in states of penury, sometimes street homelessness, and even subject to exploitation by those taking advantage of their desperation. We have won every case to date.

17. Those wins have included the following five notable cases prior to today’s win in the Court of Appeal:

- R (W by his litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin); [2020] 1 W.L.R. 4420 in which a Divisional Court (Bean LJ and Chamberlain J) found that the operation of the NRPF policy breached article 3 ECHR.
- R (ST and VW) v SSHD [2021] 1 WLR 6047 in which a Divisional Court (Laing LJ and Lane J) held the policy to be incompatible with the duty to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom
- R (AB) v SSHD [2022] 1 WLR 5341 in which the High Court (Lane J) found that the Secretary of State’s policy had still not complied with the duty to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom
- R (PA and Anor) v SSHD [2023] EWHC 2476 in which the High Court (Saini J) found the Secretary of State’s blanket application of the NRPF regime to those with dependent or student leave to be unlawful.

18. The Court of Appeal’s judgment today has potential ramifications in other areas. In confirming that people who are subjected to imminent risks of inhuman treatment by operation of state policies may be entitled to damages for violations of their article 3 rights, the Court has laid straight a path for others who are subjected to states approaching inhuman or degrading treatment to claim damages. The most obvious examples would be some of the asylum-seekers currently in limbo who are forced by Home Office policies- or by the failure of those policies- to live in states of extreme deprivation while waiting many years for decisions on their asylum claims. There will no doubt be other contexts in which such claims might arise.

19. 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” (paragraph 60 of its judgment). 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'.”

Would the Common Law Achieve the Same Outcome?

20. 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 Human Rights Act 1998, there is an important and outstanding question whether the common law would also be capable of evolving a remedy in damages in this kind of case. 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.

21. The argument would 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 that unless an infringed right were met with an adequate remedy, the duty would become "a hollow one, stripped of all practical force and devoid of all content".

22. In cases such as this the Human Rights Act 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.