Article 3 and the minimum standard of social support
18 November 2009
R (on the application of EW) v Secretary of State for the Home Department,  EWHC 2957 (Admin) 18 November 2009 – read judgment
Summary and comment by Rosalind English
Article 3 does not dictate a minimum standard of social support for those in need, nor does it require the state to provide a home or minimum level of financial assistance to all within its care.
W was an Eritrean national who had entered the UK illegally. Fingerprint evidence traced his irregular entry into the EC to Italy following which the UK authorities sought from the Italian authorities an undertaking to accept responsibility for W’s application for asylum under the terms of the Dublin II Regulation. Italy did not respond and therefore it was deemed to have accepted responsibility for the asylum claim by default.
Against this background, W’s UK claim for asylum refused and certified on safe third country grounds. W applied to remain in the UK due to family ties, but the secretary of state refused that request. W made further representations to the secretary of state to the effect that to remove him to Italy would be in breach of his rights under Article 3 of the convention on the grounds that conditions for asylum seekers in Italy were such that they amounted to inhuman and degrading treatment contrary to that provision. The secretary of state subsequently rejected W’s claims under the Convention and certified them as unfounded, and W challenged the lawfulness of that decision. He contended that his return to Italy would place the UK in breach of its obligations under Article 3 because, as an asylum seeker, he would face a real risk of destitution and humiliation there; and that, in any event, the secretary of state ought to have considered exercising his discretion to accept responsibility for dealing with W’s asylum claim because of patent failures by the Italian authorities to respect their obligations under the Convention and various European Union Directives as they related to asylum seekers.
There was no general right to accommodation or a minimum standard of living that could be drawn from the Convention or European law, or from domestic human rights, social or other legislation. The setting of such a minimum standard was a matter for social legislation, not the courts, and the extent to which one member state of the European Union could be expected to police the asylum policy of another was limited. There was a presumption that a friendly state would comply with its international obligations, and there was no evidence of the Italian authorities systematically, routinely or even regularly frustrating the making or pursuit of an asylum application, or delaying the determination of asylum applications to any unreasonable degree, or failing to provide appropriate information to those seeking asylum. In respect of the living conditions to which W would be subjected if returned to Italy, whilst poor living conditions could amount to inhuman and degrading treatment in breach of Article 3, that provision did not prescribe a minimum standard of social support for those in need, and did not require the state to provide a home or minimum level of financial assistance to all within its care. W had failed to satisfy the court that his treatment in Italy would meet the high threshold or “inhuman and degrading” within the meaning of the Article.
The secretary of state was, therefore, justified in certifying W’s human rights claim as clearly unfounded and any appeal against that decision would, on the evidence, be bound to fail.
As for W’s second ground of appeal, there was no evidence that the Italian authorities avoided or sought to avoid their international obligations towards asylum seekers, therefore the premise for this claim was false, and that ground had to fail also.
COMMENT (December 2009)
This is another one of these “extra-territorial” cases where the claimant relies on the Convention obligations of the respondent state for acts or omissions by a third country. The Administrative Court in this instance was not being asked to consider whether the acts of the United Kingdom would directly result in the claimant’s destitution here: but rather whether the conditions for asylum seekers in Italy are such that, if returned there, the claimant risked destitution, with the result that the United Kingdom would be in breach of its article 3.
Whilst the courts in this country are free to decide on the evidence whether a third country is “safe” in the sense that no risk of breach of the Convention arises should the applicant be returned thence, there are limitations in the asylum context. The decision of the House of Lords in Limbuela (R (on the application of Limbuela) v Secretary of State for the Home Department (2005) UKHL 66, (2006) 1 AC 396) is quite clear on this point; as Lord Hope pointed out
“The question whether, and if so in what circumstances, support should be given at the expense of the state to asylum seekers is, of course, an intensely political issue”
And, he went on to say, engagement in this “political” issue is no part of the judicial function. Nor should it be. For living conditions to amount to a breach of Article 3, there has to be positive action by the state, rather than mere passivity on its part, and the action has to result in conditions for a claimant that met the very high threshold for inhuman and degrading treatment set by that provision.
Again, Limbuela establishes this as a firm limiting principle in the application of Convention jurisprudence; Hickinbottom J summarises the position at para 91:
“The nature of a state’s obligation under article 3 is clearly set out in Limbuela. The article is aimed at positive acts of state-sponsored violence. If they meet the threshold of seriousness (to which I shall come shortly), such acts are absolutely prohibited. Where the acts are not directly those of the state, the state will only be the subject of this prohibition if it supports such acts by positive, intentionally inflicted acts of its own. What amounts to “positive action” will no doubt depend upon the circumstances of a particular case and, in some circumstances, the state may be required to take positive steps to prevent ill-treatment at the hands of others (see, e.g., R (Bagdanavicius) v Secretary of State for the Home Department  UKHL 38 at  per Lord Brown of Eaton-under-Heywood, E v Chief Constable of the Royal Ulster Constabulary  UKHL 66 at  per Lord Carswell, and R (B) v Director of Public Prosecutions  EWHC 106 (Admin) at ).”
So it is not incumbent on the UK courts to scrutinize the social welfare provisions of other countries for compatibility with the Convention. Nevertheless, the judge in this case did hear evidence of Italian law in this context, and it transpired that under Italian law, the Italian state has no obligation to house anyone. Not even an Italian national has any right to accommodation in Italy. It would be politically insane of any government to give asylum seekers privileged status in this regard and beyond insanity for any other government to dictate that it should.
Hickinbottom J observes, at para 25 of the judgment, that this application, looked at in one way, arguably seeks to extend the rights guaranteed by the ECHR. No such extension is countenanced any longer; the extra-territorial reach of the Convention has clearly extended far enough.