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SHELTER IS A BASIC HUMAN RIGHT, SAYS COURT OF APPEAL

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Shelter today heralds the Court of Appeal ruling (1) that ...
Shelter today heralds the Court of Appeal ruling (1) that

'shelter of some form from the elements at night' is a 'basic amenity' (2).

Shelter, who intervened in the case of three destitute asylum

seekers, is delighted by the groundbreaking decision as asylum seekers

and other destitute people who are not currently given state assistance,

may, for the first time, have a case for claiming that their human

rights have been breached on the grounds of homelessness.

Since this legislation was introduced to parliament, Shelter has warned,

that because of the lack of charitable assistance, Section 55 would

cause increased street homelessness. Lord Justice Jacob said that at

present, 'any reasonable estimate of the number likely to be put on the

streets (and the secretary of state has not himself made any estimate)

is that it must be of the order of 500 or more. Most of these will be

in London.' He set this against the government's own Rough Sleepers

Unit estimate of 532 people currently sleeping rough throughout England.

Following this judgement the Home Office must now produce guidance on

the implementation of Section 55 in order to ensure further breaches of

human rights are avoided and that the courts are no longer the first

point of proper decision-making on a time consuming and expensive

case-by-case basis.

Adam Sampson, director of Shelter, commented:

'This judgement is a victory for very vulnerable people who are in

desperate need with nowhere to turn. Section 55 is threatening to

greatly increase the number of homeless people on the streets -

undermining the government's own successes in tackling rough sleeping.

We hope that it will now not only implement the court's guidance but

also undertake a thorough review of Section 55 called for by the Home

Affairs Select committee.

NOTES

1. In the case of Secretary of State for the Home Department and Wayoka

Limbuela, Binyam Tefera Tesema and Yusif Adam two of the three Court of

Appeal judges dismissed all three appeals against Section 55 decisions

brought by the Home Office (see LGCnet).

2. Statement from Lord Justice Carnwath

HOME OFFICE STATEMENT ON SECTION 55 OF THE NATIONALITY, IMMIGRATION AND

ASYLUM ACT 2002: COURT OF APPEAL JUDGEMENT

'We are disappointed that the appeals have been dismissed by

a split decision of 2 to 1. Under section 55, asylum seekers can be refused

support if they fail to claim asylum as soon as reasonably practicable after

arriving in the UK. The basic thrust of the policy has been vindicated in

the courts.

'In the present cases, the court was asked to give guidance

on the circumstances in which a refusal to give support can be overturned on

the basis that it can result in destitution and thereby threaten people's

rights under Article 3.

'This guidance has proved difficult. The court of appeal is

itself divided as to the correct approach, as the high court was before it.

In his minority judgement, Lord Justice Laws points out that the relevant

principles in this area are 'more than usually elusive.

'We are therefore seeking leave to appeal to the House of

Lords. Clearly these cases raise issues which are both of great public

importance and real legal complexity. We are considering the full

implications of the court's decision and examining the options for the

future.

'The essential point of section 55 is that we are not

prepared to use taxpayers' money on supporting people who make speculative

asylum claims or who have some alternative source of support.

'Section 55 is working in tackling this kind of abuse and

sends a clear message to those who are simply economic migrants that they

will not be supported at public expense. It was introduced as part of a

wider package of measures which has tightened up and reformed the entire

asylum system - a package which together has brought asylum claims down by

more than half since the autumn of 2002.

'It is a tough measure, but there are safeguards to protect

the vulnerable. It is reasonable to expect people fleeing persecution and

torture to claim asylum as soon as they can and we have always supported

them.

'Since last December those who apply for asylum within three

days of entering the country have normally been considered to have applied

as soon as reasonably practicable and have been given support. We think this

strikes the right balance between fulfilling our obligations to genuine

asylum seekers and protecting the system against abuse.'

Notes

1. The Court of Appeal handed down a judgement on 21 May in three

Section 55 test cases, Limbuela, Tesema and Adam, concerning asylum seekers'

entitlement to asylum support and Article 3 of the European Convention on

Human Rights. The judgement relates to a hearing that took place on 23 and

24 March.The appeals were on behalf of the Secretary of State against High

Court judgements earlier this year concerning the issue of when it is

necessary to provide support to an asylum seeker who has not claimed asylum

'as soon as reasonably practicable' in order to prevent a breach of Article

3 of the European Convention on Human Rights. The appeals were dismissed.

2. Under section 55 asylum seekers (excluding families and those with

care needs) have to apply for asylum as soon as reasonably practicable in

order to qualify for support. It was introduced on 8 January 2003 and on 17

December 2003 the home secretary announced a change in approach which has

meant that, in general, a person who applies within three days of arrival in

the UK will be considered to have done so as soon as reasonably practicable.

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