Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same: HL 3 Nov 2005

The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day following their arrival.
Held: The appeal by the Secretary of State failed.
Lord Bingham of Cornhill said: ‘Shelter’s experience is that there is no realistic prospect of a destitute asylum-seeker obtaining accommodation through a charity. Unless he has family or friends to provide him with accommodation or with funds, he will have to sleep rough. Clients in that situation who come to Shelter for advice are frequently cold, tired, and hungry and have not had access to washing facilities. They display varying degrees of desperation and humiliation as well as mental and physical illnesses.’
The European Court has repeatedly said that article 3 prohibits torture and inhuman and degrading treatment in terms that are absolute. ‘Withdrawal of support will not in itself amount to treatment which is inhuman or degrading in breach of the asylum-seeker’s article 3 Convention right. But it will do so once the margin is crossed between destitution within the meaning of section 95(3) of the 1999 Act and the condition that results from inhuman or degrading treatment within the meaning of the article.’
. . and ‘section 55 asylum-seekers . . are not only forced to sleep rough but are not allowed to work to earn money and have no access to financial support by the state. The rough sleeping which they are forced to endure cannot be detached from the degradation and humiliation that results from the circumstances that give rise to it. ‘
Lord Scott of Foscote considered that a failure to provide support would not generally constitute treatment within the Convention, but ‘asylum seekers were removed by section 55(1) from those destitute asylum seekers for whom the Secretary of State was able to provide under the various statutory powers that would otherwise have been available for that purpose. This removal, coupled with the bar on their supporting themselves by their own labour, plainly, in my opinion, constitutes ‘treatment’ of them for article 3 purposes. ‘
Baroness Hale of Richmond was uneasy with Laws LJ ‘spectral analysis’: ‘It invites fine distinctions which have no basis in the Convention jurisprudence. ‘ and ‘The state has taken the Poor Law policy of ‘less eligibility’ to an extreme which the Poor Law itself did not contemplate, in denying not only all forms of state relief but all forms of self sufficiency, save family and philanthropic aid, to a particular class of people lawfully here. We can all understand the reasons for doing so. But it is of the essence of the state’s obligation not to subject any person to suffering which contravenes article 3 that the ends cannot justify the means. ‘
Lord Brown of Eaton-Under-Heywood: ‘The real issue in all these cases is whether the state is properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.’


Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood


[2005] UKHL 66, Times 04-Nov-2005, [2005] 3 WLR 1014, [2007] 1 All ER 951, [2006] 1 AC 396


Bailii, House of Lords


Nationality, Immigration and Asylum Act 2002 55(5)(a), Immigration and Asylum Act 1999 95, European Convention on Human Rights 83


England and Wales


CitedO’Rourke v United Kingdom ECHR 26-Jun-2001
The applicant was a sex offender who on release from prison had found temporary accommodation from which he had been evicted for pestering female residents. He ignored advice to go to a night shelter whilst a decision on permanent re-housing was . .
CitedRegina (T) v the Secretary of State for the Home Department; similar CA 23-Sep-2003
The claimant asylum seeker had been refused benefits having failed to declare his application on entry. The Secretary now appealed a finding that the decision was flawed. Was the treatment of the applicant inhuman or degrading?
Held: No simple . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedRegina (on the Application of Q and others) v Secretary of State for the Home Department CA 18-Mar-2003
The Home Secretary appealed a ruling that his implementation of section 55 was unlawful, having been said to be incompatible with human rights law.
Held: The way in which the section had been operated, by denying consideration and all benefits . .
CitedPretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
CitedRegina (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
CitedStott (Procurator Fiscal, Dunfermline) and Another v Brown PC 5-Dec-2000
The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right . .
CitedD v United Kingdom ECHR 1997
In the circumstances of the case, where the applicant was in the advanced stage of a terminal illness (AIDS), to implement a decision by the respondent to remove the appellant to St Kitts in the West Indies would be a violation of his rights under . .
CitedThe Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
CitedV v The United Kingdom; T v The United Kingdom ECHR 16-Dec-1999
The claimant challenged to the power of the Secretary of State to set a tariff where the sentence was imposed pursuant to section 53(1). The setting of the tariff was found to be a sentencing exercise which failed to comply with Article 6(1) of the . .
CitedA v United Kingdom ECHR 1-Oct-1998
The beating of a child aged 9, by his father, with a cane repeatedly, and so as to leave bruising, was inhuman or degrading treatment or punishment, and was not capable of being reasonable chastisement. UK law failed properly to protect the child’s . .
CitedChapman v United Kingdom; similar ECHR 18-Jan-2001
The question arose as to the refusal of planning permission and the service of an enforcement notice against Mrs Chapman who wished to place her caravan on a plot of land in the Green Belt. The refusal of planning permission and the enforcement . .
CitedGezer v Secretary of State for the Home Department CA 17-Dec-2004
. .
CitedZardasht, Regina (on the Application Of) v Secretary of State for Home Department Admn 23-Jan-2004
The court asked whether the evidence showed that the threshold of severity had been reached to turn the treatment of the applicant into an infringement of his human right not to suffer inhuman or degrading treatment. Having entered the UK with a . .
CitedEast African Asians v United Kingdom ECHR 1973
(Commission) A group of Asian men, United Kingdom citizens, complained that, among other things, their Article 8 rights to respect for family life were infringed when they were refused permission to enter the United Kingdom to join their wives. The . .
CitedAssenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
CitedAydin v Turkey ECHR 25-Sep-1997
ECHR Judgment (Merits and just satisfaction) Preliminary objection rejected (estoppel); Violation of Art. 3; Violation of Art. 13; Not necessary to examine Art. 6-1; No violation of Art. 25-1; Not necessary to . .
CitedMoldovan And Others v Romania (No. 1) ECHR 12-Jul-2005
In 1993 a pogrom had taken place in a Roma village, resulting in a number of deaths and widespread destruction of property. The State, in the form of the local police, was alleged to have been implicated. Romania acceded to the Convention on 20 June . .
CitedRaninen v Finland ECHR 16-Dec-1997
The complainant had been handcuffed unjustifiably and in public but not with the intention of debasing or humiliating him and not so as to affect him sufficiently to attain the minimum level of severity.
Held: The application was rejected The . .
CitedIwanczuk v Poland ECHR 15-Nov-2001
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; Violation of Art. 5-3; Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – financial award; Costs and expenses . .
At first instanceRegina (Limbuela) v Secretary of State for the Home Department QBD 4-Feb-2004
The claimant had sought asylum on the day after arrival, and had therefore been refused any assistance beyond the provision of a list of charities who might assist. His lawyers were unable to secure either shelter or maintenance, and he had been . .
Appeal fromThe Secretary of State for the Home Department v Limbuela, Tesema, Adam CA 21-May-2004
The appellant brought in policies which denied to asylum claimants who had failed to declare their status immediately upon entry, any shelter or support or the right to work. They were to be left to starve on the streets if they so wished. He . .

Cited by:

CitedRogers, Regina (on the Application of) v Secretary of State for Health Admn 15-Feb-2006
The claimant suffered breast cancer. She sought treatment from the defendant with a drug called Herceptin, and now sought judicial review of the refusal of such treatment. Various stages in the licensing of the drug were yet to be completed. It was . .
CitedM, Regina (on the Application of) v Slough Borough Council HL 30-Jul-2008
The House was asked ‘whether a local social services authority is obliged, under section 21(1)(a) of the 1948 Act, to arrange (and pay for) residential accommodation for a person subject to immigration control who is HIV positive but whose only . .
CitedRJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
CitedSL v Westminster City Council SC 9-May-2013
The applicant for assistance from the respondent Council under the 1948 Act was a destitute, homeless failed asylum seeker. He had been admitted to hospital for psychiatric care, but the Council had maintained that his condition was part of and . .
CitedSL v Westminster City Council SC 9-May-2013
The applicant for assistance from the respondent Council under the 1948 Act was a destitute, homeless failed asylum seeker. He had been admitted to hospital for psychiatric care, but the Council had maintained that his condition was part of and . .
CitedJanner, Regina (on The Application of) v The Crown Prosecution Service Admn 13-Aug-2015
The claimant challenged the decision that he should face trial on charges of historic sexual abuse. He was now elderly and said to be unfit to attend court or instruct his lawyers, suffering Alzheimers. He sought interim relief against being . .
Lists of cited by and citing cases may be incomplete.

Immigration, Benefits, Human Rights

Updated: 29 March 2022; Ref: scu.231676