23 February, 2003Section 55 of the Nationality, Immigration & Asylum Act 2002
|the person makes a claim for asylum which is recorded by the Secretary of State; and
|the Secretary of State is not satisfied that the claim was made as soon as reasonably practicable after the person's arrival in the United Kingdom.
The basis for the decision is firstly that the Secretary of State, in taking decisions which caused the applicants for judicial review in this case to be denied benefits did not follow a proper procedure which complied with the normal requirements of administrative law and secondly that the denial of any right of appeal was contrary to Article 6 of the Human Rights Convention. The first sentence of this Article states: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
The task of deciding in accordance with section 55 whether asylum
seekers are to be denied benefits falls on the National Asylum Support
Service (NASS), established under the Immigration and Asylum Act
1999 and controlled by the Home Office. Units of NASS completed
screening forms for the asylum seekers who were the applicants in
the proceedings before Mr Justice Collins and it was on the basis
of information provided about individuals by answers to questions
on these forms that the relevant officials in NASS took the section
55 decisions. They did not see the asylum seekers or question them
in order to determine whether their respective claims were made
as soon as practicable after arrival. According to the learned judge,
this procedure did not ensure that all necessary information was
obtained so that all relevant information could be taken into account
and a fair decision could be reached. He considered that all new
arrivals should be orally questioned before any decision could be
Apart from shortcomings identified in Home Office procedures on
section 55 decisions, the judge held also that there was a breach
of Article 6 by reason of the absence of any right of appeal against
an adverse decision. Indeed, from the report it appears that this
is the only breach of Article 6; the reasons for impugning the Home
Secretary's decisions discussed above appear to be based solely
on principles of administrative law as applied in judicial review
decisions. If the Court of Appeal agrees that the absence of a right
of appeal against an adverse decision under Section 55 is a breach
of Article 6 of the Human Rights Convention, it could have serious
consequences for the provisions of Part 5 of the 2002 Act relating
to the appeals system, which is to be brought into force in April
this year. Sections 94, 96, 97 and 98 in Part 5 prescribe circumstances
in which if the Home Secretary certifies a claim there is no right
of appeal. Briefly these are as follows:
|Section 94: this applies to asylum and human rights claims from persons resident in all the states which are due to be admitted as members of the European Union in 2004. The Home Secretary may certify that an asylum or human rights claimant is entitled to reside in one of these states.
|Section 96: applies to any immigration decision and is not limited to asylum claims. No appeal against a particular adverse decision if the ground on which the applicant wishes to appeal has already been decided against the applicant and the Home Secretary or an immigration officer so certifies.
|Section 97: applies
also to any immigration decision.
The Home Secretary may certify that a particular adverse decision, asylum or non-asylum, was taken on the ground that the person's removal from the United Kingdom was
in the interests of national security or in the interests of
the relationship between the United Kingdom and
|Section 98: applies
to any immigration decision which is
a refusal of leave to enter or of entry clearance. The Home Secretary may certify that the decision to exclude or remove the person in question from the United Kingdom is conducive to the public good.
There have been suggestions that denial of benefits could be an
infringement of individuals' rights under Article 3, on the ground
it would amount to "inhuman or degrading treatment", though the report of the case does not indicate that that argument was canvassed before the court.. It could be argued that denial does not amount to such treatment. Article 3 prohibits torture or such treatment and it can be argued strongly that it was never intended to prohibit sanctions which are so much milder than and far removed from physical or mental torture. It would be appropriate to invoke the eiusdem generis rule. If this rule of interpretation were applied it would mean that "inhuman or degrading treatment or punishment" must be taken as referring only to treatment or punishment which is similar to torture, e.g. parading prisoners on television or making prisoners stand outside for long periods in freezing temperatures.