Practice and Procedure


PUBLISHED May 7, 2003

In the absence of a specific danger to asylum seekers, the Home Secretary was entitled, as a matter of policy, to provide accommodation within an inner city estate provided that there was a general system of providing police protection, social support and programmes designed to improve community relations.Application for judicial review, seeking a declaration that a decision of the National Asylum Support Agency ('NASS') to disperse the applicant asylum seeker and his family to Glasgow infringed their rights under Art.3 and Art.8 European Convention on Human Rights, and damages in respect of that decision. The applicant ('G') was a Turkish national of Kurdish origin who suffered psychological problems, which he contended resulted from torture in Turkey. He arrived in Britain in September 2000 and initially lived with his wife and dependent children in London. In August 2001 he applied to NASS for assistance, and in September 2001 he and his family went to live on the Toryglen Estate in Glasgow where a further 7,000 asylum seekers had already settled. Shortly afterwards, the family's "deck access" accommodation was attacked and one of G's sons threatened with a knife ('the October incident'). The October incident was treated as a racist attack and the police housed G and his family in emergency accommodation. Shortly thereafter they returned to London and refused NASS's offer of alternative accommodation in Glasgow, which meant that NASS withdrew support for G and his family. G contended that the Secretary of State for the Home Department ('the secretary of state') was under a positive duty to protect G and his family from the treatment which they in fact suffered by ensuring that they were not sent to Toryglen and housed elsewhere. It fell to the court to determine if either Art.3 or Art.8 of the Convention had been infringed and whether an entitlement to damages arose.HELD: (1) The treatment to which G and his family had been exposed, namely, sustained racial abuse coupled with racially motivated violence, fell within Art.3. (2) However, the harm to which G and his family risked exposure was not harm inflicted by the State or its agents. Therefore, the secretary of state was under an obligation to provide protection against a risk of treatment falling within Art.3 of which he knew or ought to have known. The level of that protection did not need to afford a guarantee against the danger but was that which was reasonably available, as a matter of practicality, common sense and humanity, taking into account relevant policy considerations. The measures to be taken were those that afforded a real prospect of avoiding the danger, and the extent of the risk would inform the extent of the protection. (3) G failed to establish that there had been a particular specific danger of ill treatment within Art.3 directed at Toryglen in "deck access" accommodation. Therefore there was no infringement of his rights under Art.3 as the level of protection provided by the police up to the time of the October incident had been adequate. Absent the identification of a specific danger, the secretary of state was entitled, as a matter of policy, to provide accommodation within an inner city area provided that there was a general system for providing police protection, social support and programmes designed to improve community relations. (4) In light of the finding that the secretary of state and NASS had not breached their obligation to provide adequate protection under Art.3 by dispersing G and his family to Toryglen, it followed that the challenge under Art.8 also failed. (5) Consequently, G was not entitled to damages for the alleged exacerbation of psychological injuries suffered by him, but the sum of ?5,000 would have been awarded had it been appropriate to do so.Application refused.

[2003] EWHC 860 (Admin)