Hamid Ali Husain v. Asylum Support Adjudicator and Secretary of State for the Home Department

"1. Civil rights and obligations under article 6 of ECHR
(1) Article 6 does not apply to the exercise by public authorities of their discretion, as distinguished from their compliance with their obligation owed to citizens. For example, rights to social security are rights under article 6, while discretionary payments and discretionary support are not. Article 6 draws the line between the two by restricting the requirement to the determination of criminal charges and of civil rights and obligations. (paras 25-27)
(2) Rights are distinguishable from discretionary benefits, but the line between the two is not always clear. The court considered three ECtHR cases and found out the answer depends on the terms of the legislation in question in each case. In Jacobsson v Sweden, the legislation provided that a building permit was required to be granted if a number of restrictions were followed, and the ECtHR opined that the government's discretionary power is not unfettered and the claimant had a right to a building permit. While in two other ECtHR cases, the ECtHR found the government had larger discretion and the claimants did not have their claimed rights. (paras 28-34)
(3) On the face of relevant legislations which generally use words such as ""may"" and ""power"", it appears support for asylum-seekers is discretionary benefit rather than right.
Section 95(1), (2) and (3) of the 1999 Act are as follows:
?1) The Secretary of State may provide, or arrange for the provision of, support for-
(a) asylum-seekers, or
(b) dependents of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute within such periods as may be prescribed.
2) In prescribed circumstances, a person who would otherwise fall within subsection (1) is excluded.
3) For the purposes of this section, a person is destitute if-
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.?
(4) From the wording, the court opined that the mode of drafting is deliberate and it can be inferred that the Government drafted the legislation that way in order to take asylum-seekers' benefit outside the scope of Article 6. However, it appears that the court does not regard the inferred Government's intention as the Parliament's intention. The court intends to look at other materials to determine the Parliament's legislative intention. (paras 35-38)
(5) According to the Explanatory Note to the Regulations, the court found the Secretary of State is under no obligation under the Act to support destitute asylum-seekers, but if he supports any, it is difficult, if not impossible, to have a basis for lawfully discriminate between asylum-seekers who fulfil the conditions for eligibility laid down in the Act and in the Regulations. (para 39)
(6) By examining two cases, the court found that the decisions to be made by the Secretary of State regarding asylum-seekers' support do not appear to be decisions made on the basis of expediency or application of public policy of a kind that excludes the application of Article 6. The court further opined that, if a decision to refuse support to an eligible asylum-seeker could be challenged by judicial review, it can be reasonably concluded that an eligible asylum-seeker would have a right to support of the kind subject to Article 6. (paras 40-41)
(7) The current case is different: it is not about an asylum-seeker seeking support, but about an asylum-seeker's support being suspended or terminated. By examining Schedule 8 of the 1999 Act and regulation 20 of the Regulations, the court found that the Secretary of State has a duty to continue to provide support and can only suspend or withdraw support in prescribed circumstances ? judgment is objective as ""reasonable ground"" is needed for determining whether any of the prescribed circumstances is met. (paras 42-44) This suggests that an asylum-seeker may have certain rights rather than mere legitimate expectation in continuing to receive support (para 45).
(8) The existence of an appeal system that Secretary of State's decision may be reviewed by adjudicator does not support either argument: that an asylum-seeker's support is a right or is merely a subject of discretion. (paras 46-47).
(9) The context where para 8 of Schedule 8 to the Act and regulation 20 of the Regulations work must be considered: the asylum-seekers who are eligible for support are by definition destitute. They are not permitted to work. If their supports are withdrawn, they can only turn to unstable support from friends and charities. As they are lawfully in the U.K. and cannot be compelled to leave, it appears unreasonable for the government to withdraw their support and leave them in destitute. (paras 48-49)
(10) The court then analyzed Article 3 of ECHR: ?No one shall be subjected to torture or to inhuman or degrading treatment or punishment.? After examining a number of cases, the court concluded that, where other means of support are scare, then withdrawal of support from destitute asylum-seekers would constitute a violation of Article 3. (paras 50-53)
(11) Considering all discussions above, the court concluded that a destitute asylum-seeker who is receiving support under Part VI of the Act has a right, which is a civil right within the meaning of Article 6, to the continuation of support subject to regulation 20. (para 54)

2. The asylum support adjudicators: an independent tribunal?
(1) The more important the civil right in question, the greater the doubt as to the independence of the administrative tribunal, the wider must be the scope of review by the Courts. (paras 58-59)
(2) The adjudicators do not appear to be impartial, as they are appointed by the Home Secretary, a party to the appeals. (paras 60-61)
(3) However, the independence of the adjudicators is ensured by non-statutory provisions and other arrangements, for example, appointments made by the Home Secretary are on the recommendation of an independent panel; the adjudicators' work assignment was determined by Chief or Deputy Chief Adjudicators, with no involvement of the Home Secretary; the adjudicators have a fixed term and can be removed only on specified limited grounds, etc.. (para 63)
3. Must the independence of a tribunal be established by law?
No, the court concluded that Article 6 merely requires the tribunal to be established by law, it does not require the independence to be established by law. (paras 64-66)
4. Must the facts establishing the independence of a tribunal be publicly available?
(1) Yes. The test is whether a reasonable man would regard the tribunal independent if he has been ascribed all information which can be said to be in the public domain even if only a persistent busy-body would be likely to have learned of. Such information must be distinguished from information only available to anyone through the exercise of the powers of the Court in the case being examined or otherwise available by reason only of those proceedings. (paras 67-73).
(2) All the information summarized about the adjudicators in para 63 of this judgment is available to a concerned and active inquirer. Therefore, the asylum support adjudicators are independent within the meaning of Article 6.
5. The decision of the Chief Asylum Support Adjudicator in this case
(1) The Asylum-seeker's support was discontinued for breach of clause 3(17) of the occupancy agreement. But the court found there was no breach.
(2) ""The demised Premises"" should be interpreted to be only the Claimant's room, not the entire building. (para 87)
(3) Even if the entire building is referred to by the term ""demised Premises"", a single incident of assault by the occupier of premises does not constitute the use of premises ""a purpose which shall be or tend to be a nuisance or annoyance or inconvenience."" In Abahams v Wilson, the court distinguished between the circumstances where drugs are on the demised premises merely because the defendant was there and had them in his/her immediate custody, such as a pocket or a handbag, and the circumstances where the premises were employed as a storage place or hiding place for dangerous drugs. Applying such a logic, the assault is not a use of the premise. (paras 88-91)
(4) The court found it unnecessary to analyze infringement of the Claimant's rights under Articles 3 and 8 of ECHR, the adjudicator's decision was overturned based on his incorrect interpretation of the occupancy agreement. "