C0/959/2004 
Neutral Citation Number: [2004] EWHC 2371 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 30th July 2004
 
B E F O R E:

MR JUSTICE MOSES 

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THE QUEEN ON THE APPLICATION OF GUVEYA
(CLAIMANT)

-v- 

NATIONAL ASYLUM SUPPORT SERVICE
(DEFENDANT) 
- - - - - - -
 
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- - - - - - -
 
MR R KHUBBER (instructed by Switalskis Solicitors) appeared on behalf of the CLAIMANT
MR J P WAITE (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
 - - - - - - -

J U D G M E N T 
 MR JUSTICE MOSES:  
Introduction 
1.	The claimant in this application for judicial review, brought with leave of the judge, challenges a decision of the National Asylum Support Service dated 23rd January 2004.  
2.	In that decision the service refused the claimant support and accommodation, known as Hard Cases Support, pursuant to section 4(4) of the Immigration and Asylum Act 1999.
3.	The claimant says he has been destitute and homeless since 24th February 2004, though interim relief requiring the service to provide support and accommodation was granted by Burton J on 26th February and renewed by Fulford J on 3rd March 2004.
4.	The essential question is whether the decision falls within the Secretary of State's published policy for Hard Cases Support or if not falls nevertheless under section 4 of the 1999 Act or whether refusal of the support breaches a positive obligation on the United Kingdom arising under Article 3 of the European Convention on Human Rights.
5.	The claimant is a national of Zimbabwe.  His application for asylum has failed.  All avenues of appeal have been exhausted.  The Secretary of State contends that he should return to Zimbabwe voluntarily and it is reasonable to expect him to do so.
6.	The claimant contends it is not reasonable and in any event his case is exceptional because the Secretary of State has in place a policy not to enforce removal of those whose application for refugee status has failed.
The facts 
7.	The claimant arrived in the United Kingdom on 1st March 2002 and made a claim for asylum.  He said he had fled Zimbabwe because of fear of persecution from the ZANU PF and war veterans.  He was provided with NASS support following his application for asylum.  
8.	The application for asylum was dismissed by the Secretary of State on 8th March 2002.  An appeal was heard by the Immigration Appeal Tribunal, by the adjudicator, on 16th August 2002.
9.	That was dismissed but the claimant then appealed to the Immigration Appeal Tribunal.  The Immigration Appeal Tribunal allowed his appeal on 10th March 2003 and a fresh hearing took place before the adjudicator.  
10.	The fresh appeal took place on 18th July 2003 and was dismissed.  The claimant's application for permission to appeal before the IAT was dismissed on 17th September 2003.
11.	On 28th October 2003 NASS notified the claimant that financial support was to be terminated on the basis that he had exhausted all his rights of appeal.  He was not, however, required to vacate his accommodation in Doncaster until 17th November 2003.
12.	The solicitors he then instructed requested the defendant to assist him by means of Hard Cases Support.  By a letter dated 8th January 2004 the Home Department wrote: 
"You have requested that accommodation be provided because your client is unable to be returned to Zimbabwe.  The Government's position is that while it does not enforce the removal of failed asylum seekers to Zimbabwe, there is no reason why nationals of that country cannot return there voluntarily."
13.	A further letter was written to which a reply came on 23rd January 2003.  It said:
"The reasons why the Home Office does not currently enforce the removal of failed asylum seekers to Zimbabwe are set out in a letter of 4th November 2003 from Elaine Dainty that you included with your fax.  It is quite clear that the policy is not in place because there is a real risk that all failed asylum seekers will face ill treatment on return to Zimbabwe.  If that were true Mr Guveya would not have been refused asylum and an adjudicator would not have dismissed his appeal.  Miss Dainty's letter states that the policy is that failed asylum seekers are expected to return to Zimbabwe voluntarily and that remains the case.  
"Support and accommodation under the provisions of Section 4 of the Immigration Asylum Act 1999 is not provided to failed asylum seekers who can reasonably be expected to return to their countries of origin but choose not to."
14.	The claimant stayed at the accommodation with which he was provided until 19th February 2004 when he was told that the locks would be changed.
15.	Since 23rd February he has been destitute with no regular source of income, savings, money or accommodation.
16.	As I have said, interim relief was granted by Stanley Burton J on 26th February 2004 and subsequently renewed on 3rd March 2004 before Fulford J.  He was granted permission in May 2004 and thus has remained at the accommodation to which I have referred.
Statutory framework: 
17.	Section 4 of the 1999 Act provides: 
"4. Accommodation
(1) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons-
 (a) temporarily admitted to the United Kingdom under paragraph 21 of Schedule 2 to the 1971 Act;
 (b) released from detention under that paragraph; or 
 (c) released on bail from detention under any provision of the Immigration Acts.
 [(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if-
 (a) he was (but is no longer) an asylum seeker, and
 (b) his claim for asylum was rejected.
 (3) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under subsection (2).
 (4) The following expressions have the same meaning in this section as Part V1 of this Act (as defined in section 94)
 (a) asylum seeker.
 (b) claim for asylum, and
 (c) dependant.]
 (subsection 2 was inserted by s49 of the NIAA 2002 from 7th November 2002)." 
18.	Section 95 of the 1999 Act provides:
"Persons for whom support may be provided.
 (1) The Secretary of State may provide, or arrange for the provision of, support for -
 (a) asylum-seekers, or
 (b) dependants of asylum-seekers, who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed.
 [(2) Where a person has dependants, he and his dependants are destitute for the purpose of this section if they do not have and cannot obtain both-
 (a) adequate accommodation, and.
 (b) food and other essential items.
 (4) In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State must have regard to any matter prescribed for the purposes of this subsection.
 (5) In determining whether accommodation is adequate for the purposes of subsection (2) or (3) the Secretary of State may not have regard to-
 (a) whether a person has an enforceable right to occupy accommodation.
 (b) whether a person shares all or part of accommodation.
 (c) whether accommodation is temporary or permanent. 
 (d) the location of accommodation, or.
 (e) any other matter prescribed for the purposes of this subsection.
 (6) The Secretary of State may by regulations specify items which are or are not to be treated as essential items for the purposes of subsections (2) and (3).
 (7) The Secretary of State may by regulations-
 (a) provide that a person is not to be treated as destitute for the purposes of this Part in specified circumstances;
 (b) enable or require the Secretary of State in deciding whether a person is destitute to have regard to income which he or a dependant of this might reasonably be expected to have;
 (c) enable or require the Secretary of State in deciding whether a person is destitute to have regard in support which is or might reasonably be expected to be available to the person or a dependant of his;
 (d) enable or require the Secretary of State in deciding whether a person is destitute to have regard to assets of a prescribed kind which he or a dependant of his has or might reasonably be expected to have;
 (e) make provision as to the valuation of assets.]
 (9) Support may be provided subject to conditions.
[(9A) A condition imposed under section (9) may, in particular, relate to-
 (a) any matter relating to the use of the support provided, or
 (b) compliance with a restriction imposed under paragraph 21 of Schedule 2 to the 1971 Act (temporary admission or release from detention) or paragraph 2 or 5 of Schedule 3 to that Act (restriction pending deportation).]
 (10) The conditions must be set out in writing.
 (11) A copy of the conditions must be given to the supported person.
 (12) 	 Schedule 8 gives the Secretary of State power to make regulations supplementing this section.
 (13) Schedule 9 makes temporary provision for support in the period before the coming into force of this section."
Policy 
19.	The Hard Cases policy provides certain criteria for support under section 4 of the 1999 Act.
"The Secretary of State has decided that the following may be provided with support under Section 4 of the 1999 Act. A person.
- whose claim for asylum has been determined (within the meaning of Part VI of the 1999 Act).
- Who has been supported by the NASS or by a local authority under Schedule 9 of the 1999 Act.
- Who is no longer an asylum seeker within the meaning of Part VI of the Act.
- Who appears to the Secretary of State to be destitute within the meaning of Part VI of the Act; and.
- Who has no other avenue of support.
Each case will be considered on its own merits, but support will not normally be made available to a person unless they are;
Unable to leave the United Kingdom by reason of a physical impediment to travel eg through illness or late pregnancy;
Complying with an attempt to obtain a travel document to facilitate return;
Unable to leave because there is no route of safe return available; or. 
Applying for a Judicial Review of the decision to refuse them asylum and either they have been granted permission to proceed or the grounds of the application are considered to be not wholly unmeritorious.
The circumstances of the case are otherwise wholly exceptional or compassionate."   
20.	That is the policy as amended.  The earlier policy, which was probably the policy that applied to the claimant at the time, did not refer to wholly exceptional or compassionate circumstances but nothing turns on that since it is only a policy and the original policy referred to the normal position.
21.	The first question is whether the Secretary of State was entitled to conclude that the claimant could reasonably be expected to return to Zimbabwe and thus did not fall within his policy.  
22.	It is contended that the Secretary of State misapplied that policy.  That contention is itself founded on the policy of the Secretary of State not to enforce removal to Zimbabwe.
23.	The Secretary of State accepts that where a failed asylum seeker refuses to return voluntarily to Zimbabwe he will not enforce removal.
24.	In consequence, so it was argued, it is inconsistent and irrational to conclude it is reasonable to expect the claimant to return voluntarily and on that basis refuse him Hard Cases support.  
25.	It is submitted that there must be a reason for the policy of not enforcing removal to Zimbabwe and it is not difficult to identify that reason.
26.	The history of the policy of non-enforcement of removal begins in January 2003.  The Secretary of State announced on 15th January 2002 that he was suspending removal to Zimbabwe.  The statement said:
"... I have decided to suspend removals of failed asylum seekers to Zimbabwe until after the elections are held in March.  We will continue to monitor the situation closely.... "
27.	Later he said: 
"Equally, we must recognise that the vast majority of those who have come to the United Kingdom from Zimbabwe over recent years do not have valid claims to asylum."
28.	A witness statement of Susan Rogers, employed by the Immigration and Nationality Directorate, dated 11th April 2003, said that: 
"The decision was taken in the light of a deteriorating political and security situation...  
"Taking into account the political situation in Zimbabwe since the temporary situation was announced, the Secretary of State continues to believe that it would not be right to lift the suspension on removals.  
"The suspension is based on political rather than legal grounds.  It is not in place because it is considered unsafe for failed asylum seekers to return to Zimbabwe."
29.	On 4th November 2003 the Home Office, Miss Dainty, on behalf of the Home Department, wrote to the IND User Panel:
"However, once all avenues of appeal have been exhausted, and there are no other grounds for the individual concerned to remain, then the Home Secretary would expect them to return to Zimbabwe, as he would any other national.  Should the individual fail to return voluntarily, then they will be subject to removal procedures from the UK.  However, at the present time, the Home Secretary will not enforce the removal of any failed Zimbabwean asylum seekers.  This policy is in place as part of a wider government strategy on Zimbabwe and remains under review, although it is not related to the safety of failed returned asylum seekers."
30.	On 26th January 2004 the United Nations High Commissioner for Refugees' protection assistant wrote referring to the fact that the UNHCR kept the situation in Zimbabwe under constant review.  The letter read:
"There has been no detectable abatement of political violence against the opposition, particularly the Movement for Democratic Change (MDC), despite pressure from the international community.  Indeed, it is clearly apparent that instances of violence have continued to occur."
"In the light of the above [the letter went on] the UNHCR's opinion is that in security and protection terms the situation on the ground in Zimbabwe continues to be of serious concern.  Under the current circumstances the suspension of removals, initially recommended in March 2002 should be maintained."
31.	In a statement in the instant proceedings Mr Allen, a senior NASS case worker, reiterates the view of the home department that it is safe for failed asylum seekers to return to Zimbabwe and encloses a country synopsis referring to a number of people who have done so apparently successfully and without danger.
32.	Nonetheless, submits Mr Khubber, the real reason for the non-enforcement policy must be concern as to the volatility of circumstances in Zimbabwe and the impact of that volatility on those who return when their applications for refugee status fail.  No explanation has been given and none can be found, save in the report of the UNHCR.  
33.	If in reality the Secretary of State is concerned as to the safety of returnees and it is that which informs his non-enforcement policy, how can it then be unreasonable for the claimant to refuse to return voluntarily?  Indeed the claimant says as much in his own statement at paragraph 22, where he says he would like to eventually go back to Zimbabwe but fears that it is not safe at the moment.
34.	As Mr Khubber, who has argued this case with particular clarity and skill, submits forcefully, the stance of the Secretary of State speaks for itself; in circumstances where it would be expected that one who has failed to gain refugee status would be removed but is not being removed, there must be a serious issue as to the viability of such removal.
35.	He also draws attention to a letter from NASS dated 19th March 2003, stating that those from Zimbabwe are at that time receiving Hard Cases Support.  
36.	The Secretary of State now says that that letter, written by a junior official, contained an error; an explanation made of no less doubtful weight by a letter from the Refugee Council, dated 27th July 2004, to those instructed by the claimant, recording that a member of the section 4 support team at NASS told her that Zimbabwe had not been removed from the Hard Cases list until 5th April 2004.
37.	I am troubled as to the reason for the policy of not enforcing removal.  When I asked counsel what "political" rather than "legal" grounds were, as referred to by Miss Rogers, Mr Waite, no doubt loyal to his instructions, which I respect, would not tell me.  
38.	In a passage in the adjudicator's decision, on which NASS rely and to which I shall refer more fully later, the adjudicator said the policy of non-enforcement was part of the picture but not determinative (see paragraph 63 of his decision).  I asked Mr Waite of what picture the policy was part, but he would not tell me.
39.	Troubled as I am by what is meant by "political grounds", I do not think that I should reach a conclusion which contradicts the express assurance of the Secretary of State that the policy of non-removal to Zimbabwe has not been adopted and continued on grounds of safety.
40.	The response of the Secretary of State in the instant case specifically rests on his assurance to this court that concern as to safety is not the basis of the policy.
41.	I refer again to the material I have identified, which is summarised in express terms at paragraph 9 of the grounds of resistance.
42.	Faced with that assurance I do not think it is open to the court to conclude that the reason for the non-enforcement policy is concern as to the safety of returnees.  
43.	The fact that the Secretary of State has adopted a generous policy in relation to enforcement provides no warrant for concluding that he is bound to provide support and accommodation to those who refuse to return to Zimbabwe once their claims to refugee status have failed.  
44.	Once that conclusion is reached, there remains no basis for concluding that the claimant's refusal to return voluntarily is reasonable, still less for concluding that the Secretary of State misapplied as policy.
45.	At paragraphs 63 to 64 of his adjudication the adjudicator found as a fact it was not unsafe for this claimant to return.  This was an important consideration in considering both the claimant's claim for asylum, under the Refugee Convention and under the Human Rights Act.  Were he at risk his appeal would have been allowed.  Its rejection is a significant conclusion on the facts which this court cannot gainsay.  
46.	For those reasons there is no basis for concluding that the Secretary of State misapplied his policy.  He was entitled to conclude that it was reasonable for the claimant to return voluntarily.
47.	Mr Khubber further submits that the Secretary of State has taken too restrictive a view as to the scope of section 4.  
48.	That section is designed to act as a safety net to enable support to be provided for those whom it is impossible to remove (see the observations of Collins J in R v Niogatu 2004 EWHC 1806 at paragraphs 11 and 20).
49.	In the light of the policy of non-enforcement it was argued that the claimant is in an analogous position and it is nothing to the point that his claim to refugee status failed; the Secretary of State has placed an erroneous weight on the findings of the adjudicator.  
50.	Mr Khubber put the same submission in another way; the existence of the non-enforcement policy is an exceptional circumstance coming within the amended policy.  Alternatively the Secretary of State failed to apply the policy as it existed at the time with the flexibility with which all matters of policy must be applied.
51.	I do not agree.  For the reasons I have given the Secretary of State was entitled to take the view that it was not impossible for the claimant to return.  Indeed it was reasonable for him to do so.
52.	Accordingly the purpose underlying section 4, namely to protect those who are unable to return or unable to leave forthwith is not served by providing support to those who it is reasonable to expect to leave voluntarily.
53.	Mr Kubber's final submission was advanced but faintly.  He relied upon the principles recently explained in Limbuela in contending that the Secretary of State was under a positive obligation to provide support so as to protect the claimant's rights enshrined in Article 3.  The fatal flaw in this argument, as, realistically, Mr Khubber was disposed to accept, without any concession, is that failure to provide support does not disclose any "treatment" by the United Kingdom.  The proper approach to the meaning of treatment was considered by the Court of Appeal in R (Q and others) v Secretary of State [2003] 3 Weekly Law Reports at page 365, at paragraphs 5.6 and 5.7.  
54.	That approach was endorsed by the Court of Appeal in all the judgments in the Secretary of State v Limbuela and others [2004] EWCA Civ 540, particularly at paragraph 74 in the dissenting judgment of Laws LJ and in the judgment of Carnwath  	LJ at paragraph 115.
55.	In the instant case the claimant is not permitted by law to remain; no action of the state either compelled or permitted him to remain.  There was no treatment of which the claimant can complain.  This conclusion is plain from the principle adumbrated on the application of R (K) v Lambeth London Borough Council and Secretary of State [2003] EWCA Civ 1150, where at paragraph 49 Lord Phillips of Worth Matravers, Master of the Rolls, said:
"We do not consider that either article 3 or article 8 imposes a duty on the State to provide the appellant with support.  She has not been granted leave to enter or remain in this country.  She has been permitted to remain here to pursue an appeal in which she advances, inter alia, an article 8 claim, which we consider to be clearly specious ...  There is no impediment to her returning to her own country.  A State owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home."
56.	The claimant cannot raise any complaint in relation to Article 3.  His plight stems from his own choice not to leave.  This application for judicial review fails.
57.	MR KHUBBER:  My Lord, firstly in relation to cost.  The claimant is legally assisted.
58.	MR JUSTICE MOSES:  You can have a taxation.
59.	MR KHUBBER:  (inaudible) late assessment.  My Lord, the second point is that I do ask for permission to appeal to the Court of Appeal.  My Lord, this case does raise an important point in relation to the issues that --
60.	MR JUSTICE MOSES:  Can I just say to the reporters that the other case actually I regard as rather more important than this one.  Do feel free to go but I am anxious to get on because that is one I am rather keen that people should learn about.
61.	MR KHUBBER:  My Lord, I was going to indicate that this case does raise an important question about the rights of a person who is going to be denied food and shelter and who is not going to leave the UK and in a situation where there is a government policy which, despite what your Lordship has said, there is clearly a tension between that and the objective neutral evidence.  
62.	That is an important point as regards the circumstances of this particular claimant.  He has nothing.  That evidence is uncontroverted and he is not leaving.
63.	MR JUSTICE MOSES:  Thank you.
64.	MR KHUBBER:  That is why I ask. 
65.	MR JUSTICE MOSES:  I am going to refuse permission, you must ask their Lordships.  It does not seem to me that this case raises any new issue of principle.