On 18 April 2024, the Court of Appeal held in ASY & Ors v Home Office [2024] EWCA Civ 373 that damages are payable to those subjected to destitution that amounts to an imminent risk of inhuman or degrading treatment. 

The Court of Appeal judgment recognised the existence of a low-level duty upon the Home Office to prevent persons subject to the no recourse to public funds condition from becoming destitute, and confirmed that a person has a right to damages where they face an imminent risk of inhuman or degrading treatment.

Background

The claimants are four families who were identified as lead claimants in a case involving many other families in similar circumstances.  In each family the children are British citizens but the parent is not and had been granted limited leave to remain in the UK under the family route subject to a condition that they have no recourse to public funds.

Each family became unable to support itself for various reasons, but were unable to secure recourse to public funds to alleviate their financial difficulty due to the Home Office policy that required them to demonstrate their destitution and then wait several weeks for the Home Office to remove the no recourse to public funds condition from their leave to remain. 

The Divisional Court declared this policy unlawful in R (W) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) finding that the policy failed to comply with the Home Secretary’s duty to prevent a breach of article 3 of the ECHR and the law of common humanity.

The old no recourse policy provided that the condition might only be lifted in response to a request for a change of conditions (‘CoC’) and that such a request could only be made where a person could prove they were “destitute”, meaning that they could not meet their essential living needs, or that their accommodation was not adequate.

The claimants argued that the Home Office’s no recourse policy was unlawful because by only allowing for the lifting of the no recourse condition where a person was already destitute, it failed to prevent inhuman or degrading treatment. That failure was a breach of the Home Office’s positive duty to take proactive measures to prevent individuals within their jurisdiction from being subjected to ill-treatment within article 3.

In each case, the Home Office lifted the no recourse to public funds condition between 40 and 62 days after the claimants had requested a change of conditions. By removing the condition, the Home Office had accepted that each family was “destitute” at the time of the application, and had therefore been left destitute for several weeks while the application was processed.  

The damages claim

The claimants brought claims under section 7 of the Human Rights Act 1998 alleging that they were victims of a breach of the Home Office’s duty under section 6 of the Human Rights Act 1998 not to act incompatibly with a Convention right (article 3) and that they were entitled to damages pursuant to section 8 of the Human Rights Act 1998.

In a judgment handed down in the County Court on 28 October 2021, HHJ Ralton decided the preliminary issue in favour of the claimants, concluding that they:

on the evidence in their cases, have a right to claim 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. In particular I reject the contention that the Claimants must prove actual breach of Article 3.

The Home Office appealed to the High Court which held that HHJ Ralton misconstrued the decision in W. May J found that there was no causal link between the damages claimed and a violation of article 3 as the claimants had not actually suffered destitution to the point of inhuman or degrading treatment. May J overturned the lower court’s decision and quashed the judge’s ruling on the preliminary issue.

The claimants sought and obtained permission to appeal from the Court of Appeal against the judgment and Order of May J in Home Office v ASY & Ors [2023] EWHC 196 (KB) of 2 February 2023. The claimants raised three grounds of appeal.

These are:

1. Ground 1: The learned judge misdirected herself on the nature, scope and breach of the procedural right/duty in Article 3 ECHR (in the context of destitution risking inhuman or degrading treatment).

2. Ground 2: The learned judge misunderstood the findings below and the claimants’ case.

3. Ground 3: The learned judge misapplied the “low-level” systems duty in Article 3 of the ECHR.

The Court of Appeal’s decision

The court allowed the claimants’ appeal on ground 3 and held the Home Office had, because of the imposition of the no recourse condition, potentially put the claimants into a position where public funds were not available to prevent them falling into destitution which would amount to a breach of their article 3 rights [at 88].

Fraser LJ emphasised Lord Hope’s approach to an article 3 breach in Limbuela by reiterating that “it is not just a question of “wait and see” … There is a duty if the claimant shows there is an “imminent prospect” that their Article 3 rights will be breached.”

Fraser LJ recognised a right to damages where a person faced imminent risk of inhuman and degrading treatment in the following terms:

The court set out the practical effect of this as follows:

(1) if a claimant has in fact in their particular case experienced inhuman and degrading treatment contrary to Article 3, then she can be awarded damages by way of just satisfaction under section 8 of the Human Rights Act;
(2) if a claimant was subject to the NRPF condition under the old NRPF regime, then that of itself would not give rise to a right for damages;
(3) in between those two cases at (1) and (2), there is the possibility of a claimant subject to such a condition, who satisfies the conditions set out in the preceding paragraph. In this scenario, damages would potentially be available, on a fact-specific analysis.

Para 105

In relation to the individuals involved in this case, the court has concluded that the claimants in this case may be entitled to compensation if their individual circumstances meet the tests set out above. This will be determined by the County Court in a separate hearing, the timing of which will depend on whether the Home Office appeals this decision.

The Home Office may appeal to the Supreme Court and has until 30 May 2024 to do so.  If it does so, it is likely to take several months for the Supreme Court to decide whether to grant permission to appeal. If permission is granted it will be another year or more before judgment is handed down on the appeal. 

In the meantime, the Court of Appeal’s judgment stands.  The Home Office has not sought a stay of the decision, which is surprising in view of its recent experience in this respect.  

Wider implications of this judgment

The judgment could potentially have wider implications for applicants who are facing or have faced imminent inhuman and degrading treatment (including as a result of destitution) in both the ‘no recourse to public funds’ and other contexts.

In particular, people subject to the no recourse to public funds condition may have a right to compensation if they have:

• been prevented from having recourse to public funds by having the condition imposed on their limited leave to remain,
• as a result of the condition have either (i) suffered inhuman or degrading treatment or (ii) been at immediate risk of inhuman and degrading treatment,
• made an application to have the condition lifted, and
• did not have a positive or prompt response to the claim.

This framework could also be applied to people who face imminent inhuman and degrading treatment as a result of prolonged destitution in other contexts, for example when trying to access asylum support or local authority assistance under the Children Act 1989 or the Care Act 2014.

The court made observations on what a “prompt” response timescale would be for determining applications for lifting no recourse to public funds conditions.  It concluded that waiting two months for the condition to be lifted was too long.  A shorter period may also be too long, depending on the circumstances. 

Hopefully this indication from the court will prompt the Home Office to process applications to have the no recourse to public funds condition lifted more quickly than they do so currently.  If not, delays of over two months (or shorter, if the circumstances are particularly acute) will be challengeable by way of judicial review. 

So too other applications that seek to prevent inhuman and degrading treatment through prolonged destitution.  Anyone whose circumstances fit the framework detailed above may be able to claim compensation.  To do so they will need to seek legal advice with a view to bringing a claim, bearing in mind the limitation period of one year for bringing claims under the Human Rights Act 1998.

The claimants in this case were represented by Deighton Pierce Glynn, instructing Alex Goodman of Landmark Chambers and Ben Amunwa of 3 Paper Buildings Chambers. The claimants were supported by The Unity Project (‘TUP’), without whom the case would not have been possible.