Neutral Citation Number: [2004] EWCA Civ 1075
Case No: C4/2004/0176

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL
30/07/2004

B e f o r e :

LORD JUSTICE CHADWICK
LORD JUSTICE DYSON
and
MR JUSTICE MUNBY
____________________

Between:
Singh
Appellant

- and -

Entry Clearance Officer New Delhi
Respondent

____________________

LORD JUSTICE DYSON FOR THE COURT :

I have referred to the increasing religious diversity of our society. This takes me on to my third point. We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a weak or voiceless minority. Equality under the law, human rights and the protection of minorities have to be more than what Brennan J in the High Court of Australia once memorably described as “the incantations of legal rhetoric”. Although historically this country is part of the Christian west, and although it has an established church which is Christian, we sit as secular judges serving a multi-cultural community of many faiths in which all of us can now take pride. We are sworn to do justice 'to all manner of people'. Religion – whatever the particular believer's faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect and give great weight to a family's religious principles. Article 9 of the Convention, after all, demands no less. So the starting point of the law is a tolerant indulgence to cultural and religious diversity and an essentially agnostic view of religious beliefs. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms. In this context I can do no better than to repeat what Scarman LJ (as he then was) said in Re T (Minors) (Custody: Religious Upbringing) (1981) 2 FLR 239 in a long passage at pp 244-245 which, beginning with the words “We live in a tolerant society”, is too long to quote but demands reading in full.

3 November - Lords give ECHR Article 3 ruling

House of Lords, 3 November 2005

R v Secretary of State for the Home Department ex parte Adam;
R v Secretary of State for the Home Department ex parte Limbuela;
R v Secretary of State for the Home Department ex parte Tesema

[2005] UKHL 66

The House of Lords have unanimously dismissed the appeal of the Secretary of State for the Home Department and reaffirmed the majority of the Court of Appeal ruling that denying the respondents state support when they faced an imminent prospect of street homelessness and had no other means of support to turn to was unlawful. s.55 (5) of the Nationality, Immigration & and Asylum Act 2002 was designed to prevent such people excluded from the right to support under s.55(1) from being exposed to inhuman or degrading treatment contrary to Article 3 right of the ECHR.

Section 55(1) enables the Secretary of State to withdraw support if asylum seekers have not made their claim as soon as reasonable practicable after their arrival.

The Lords held that the failure to use s.55(5) powers to support the respondents (who but for s..55(1)) would otherwise qualify for support under Sec 95 of the 199 Act is an intentionally inflicted act for which the Secretary of State is directly responsible. It was therefore “treatment” within the meaning of Article 3 because asylum seekers are barred from undertaking employment. The Court thereby unanimously approved the approach in the CA decision in Q v SSHD.

The judges below were entitled to conclude that charitable or voluntary support could not supply their needs and the respondents were either living rough or imminently threatened with doing so. In the context of UK standards of decency that was a circumstance that reached the minimum level of severity to engage article 3.

The prohibition in Article 3 is of an absolute nature. It may be negative in its effect (to refrain from treatment of the kind prescribed in article 3) or positive (to prevent the treatment from attaining the minimum level of severity). Lord Hope:” Where the inhuman or degrading treatment or punishment result from acts or omission for which the state is directly responsible there is no escape from the negative obligation on states to refrain from such conduct, which is absolute”.

The spectrum analysis adopted by Laws LJ dissenting below in the CA was not based on Strasbourg principles, and per Lord Hope and Lady Hale threatened to dilute the absolute nature of the prohibition of subjecting someone to inhuman treatment where the state was responsible for the consequences as was the case here.

Nicholas Blake QC (with Christoper Jacobs of Bedford Row Chambers) was instructed by White Rylands and Hanne and Co, for all the Respondents
Rabinder Singh QC, Raza Husain and Tessa Hetherington were instructed by LIBERTY intervene (written submissions) on behalf of the National Council for Civil Liberties and JUSTICE