Gezer, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 860 (Admin)

Case No CO/917/2002[2003] EWHC 860 Admin
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 14 April 2003
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE MOSES
THE QUEENOn the application of
Between
MEHMET GEZERSecretary of State for the Home Department
(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Stephanie Harrison (instructed by Harter & Loveless) for ClaimantMiss Lisa Giovannetti (instructed by The Treasury Solicitor) for Defendant
JudgmentAs Approved by the CourtCrown Copyright ©

INTRODUCTION

[1]The claimant is a Turkish National of Kurdish origin. He and members of his family seek asylum. In September 2001 the National Asylum Support Agency (“NASS”) decided that the family should be dispersed to Glasgow on the Toryglen Council Estate. Within days the family were subjected to racial abuse and hostility. In October 2001 their home was attacked by three men. One of them tried to stab the youngest son. The family was housed in emergency accommodation by the police and thereafter, in October 2001, returned to London without, at that stage, any support from NASS.[2]In these proceedings for judicial review the claimant seeks a declaration that the decision of NASS dated 6 September 2001 to disperse the claimant and his family to Glasgow infringed their rights under Articles 3 and 8 of the European Convention on Human Rights. Additionally they claim damages in respect of that decision. They contend that the effect of that decision was aggravated by NASS’ decision that they should return to Glasgow and by their refusal to provide a subsistence support when they refused to return.[3]This application, accordingly, raises issues as to whether the decision and actions of NASS:-(1) infringed the claimant’s rights enshrined in Article 3(2) infringed his rights enshrined in Article 8(3) if either Article 3 or Article 8 was infringed, his entitlement to damages(4) the amount of any damages to which he would be entitled.

THE FACTS

[4]On 19 September 2000, the claimant arrived in the United Kingdom with his daughter, now aged14. He claimed asylum on arrival. His two eldest sons, Hassan aged 23 and Huseyin aged 21, were already present in the United Kingdom and had claimed asylum. On 30 September 2000 the claimant’s wife arrived in the United Kingdom, accompanied by her youngest son, born 1st June 1988, then aged 12 and now15. The claimant and his family lived with their two elder sons in a one bedroom flat in Tottenham, London. The claimant, his wife and dependent children were offered accommodation by NASS in Hull. They refused, preferring to stay in London with the two elder sons. In August 2001 the two elder sons’ claims for asylum were refused. Their entitlement to income support and housing benefit accordingly ended. On 8th August 2001 the claimant applied to NASS for assistance. He suffered from psychological problems, which he contended were attributable to experiences of torture in Turkey. A psychiatric report from Dr Paulpillai, provided to NASS on or before 6th September 2001, diagnosed depression and psychotic depression, which the psychologist linked to torture and abuse. He had disturbed sleep and nightmares. He was treated with antidepressant medication. His general practitioner, whose report was also provided to NASS described the claimant as suffering from post-traumatic stress disorder. It recorded that he was unable to sleep at night, treated his wife with violence and neglected himself. He was withdrawn and uncommunicative. He was fearful and frightened of the police.[5]On 7 September 2001, the claimant and his family went to Glasgow. In her witness statement, his wife describes the hostility and intimidation with which they were faced in Glasgow. They were frightened to leave their flat. Her husband and she were shouted at in the streets. Groups of people hanging around the Toryglen Estate threatened them with dogs, spat at them and swore at them. Shopping was difficult. She was humiliated when using vouchers and waiting in the queue and checkout. Her son was bullied at school. She describes her husband’s health deteriorating in Glasgow. On one occasion, she says, he tried to throw himself out of a window. She says that the family stayed in the flat as much as possible. Asylum seekers in an adjacent block of flats had their windows smashed. Immediate neighbours had a panic button installed in their home.[6]On 27 October 2001 the claimant’s home was attacked by a group of men. Her son Ibrahim was threatened with a knife. Police accepted the incident as a racist attack and housed them in emergency accommodation.[7]On 28 October 2001 the family returned to London and lived in overcrowded accommodation with the claimant’s brother in law and his family. On 6 November 2001 NASS was informed of the family’s return to London, its fears and request for further assistance. On 7 November 2001 NASS informed the Refugee Council, acting on behalf of the family, that it would provide emergency accommodation for only one night and would investigate their allegations of racial harassment with a view to re-housing them in alternative accommodation in Glasgow. On 9th November 2001 the family was informed that, pending investigations, it was required to return to the accommodation in Toryglen. On 22nd November 2001 the claimant was informed that enquiries were complete and that the family would be returned to Glasgow on 28th November 2001 and if they did not return, all support would be terminated. That decision was maintained on 23rd and 26th November. On 27th November 2001 NASS determined that the family was entitled only to subsistence support because they would not return to Glasgow. In fact no vouchers for subsistence were sent until 30th January 2002. On 11th March 2002 following receipt of a report from the Medical Foundation, NASS withdrew its decision that the family should return to Glasgow.[8]These proceedings were launched on 9th February 2002 and permission was granted on 12th March 2002.[9]Subsequently there was a day’s hearing before another judge on 5th December 2002. At the end of that day he ordered that enquiries should be made of NASS and Glasgow City Council as to the date that Toryglen properties were first used and the date when NASS was first informed that there were concerns about asylum seekers in Toryglen and as to the terms of that information. The matter has subsequently come before me.[10]No one hearing of the circumstances with which this family were faced can fail to feel sympathy. No one should be subjected to the sort of treatment, which this family faced. Still less when they have left their country of origin and assert a fear of persecution. The undisputed social intimidation and violence, which this family suffered, brings shame upon any country, which holds itself out as a safe haven against persecution. But any expression of sympathy or shame affords no principled basis for resolution of the issues to which this case gives rise.

THE STATUTORY FRAMEWORK

[11]By Section 95(1) of the Immigration & Asylum Act 1999 (“the 1999 Act”):- “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 likely to become destitute”. By Section 96(1):
“Support may be provided under Section 95 – (a). by providing accommodation appearing to the Secretary of State to be adequate for the needs of the supported person and his dependents”
.

By Section 97:

“(1). When exercising his power under Section 95 to provide accommodation the Secretary of State must have regard to – (a) the fact that the accommodation is to be temporary pending determination of the asylum seeker’s claim (b) the desirability in general for providing accommodation in areas in which there is a ready supply of accommodation and (c) such matters (if any) as may be described. (2) But he may not have regard to – (a) any preference that the supported person or his dependents (if any) may have as to the locality in which the accommodation is to be provided”
. By Article 3 of the European Convention on Human Rights:- “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. By Article 8:- “(1). Everyone has a right for respect for his private and family life (2). There shall be no interference by a public authority for the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”[12]The claimants essential case is that to send this family, vulnerable as it was, to the Toryglen Estate, exposed the family to a real risk of racial abuse and violence. In those circumstances the Secretary of State was under a positive obligation to avoid that risk by ceasing to send families such as the claimants to the Toryglen Estate and by providing accommodation to them elsewhere.[13]This contention involves consideration of the circumstances in which positive obligations may be imposed upon the Secretary of State to avoid exposure to treatment, which infringes rights either under Article 3 or under Article 8.[14]The first question must be whether the treatment to which the claimant and his family were exposed at the Toryglen Estate was treatment falling within Article 3. It is by now well settled that Article 3 is only engaged where it is so serious that it is incapable of being justified. There is by now a clear and consistent jurisprudence as to the type of treatment falling within Article 3. This makes it unnecessary to cite numerous Strasbourg authorities. Recently in Pretty v United Kingdom [2002] 35 EHRR.1 the Court stated at paragraph 52:- “As regards the types of treatment which fall within the scope of Article 3 of the Convention, the Court’s case law refers to “ill-treatment” but attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack or respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by the treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.”[15]There have been recent cases in the United Kingdom in which the Court has declined to regard the treatment as being of sufficient severity to reach the high threshold within Article 3 (the threat to remove a claimant to Libya in N v Secretary of State for the Home Department, a decision of Silber J. [2003] EWHC 207 (Admin) and in respect of the humiliation suffered by a severely disabled woman in respect of whom unsuitable accommodation was provided in R (on the application of Bernard) v London Borough of Enfield (2002) EWHC 2282 a decision of Sullivan J.[16]I am satisfied that the treatment in this case to which it is contended the claimant and his family were exposed, does fall within Article 3. Racial abuse and racial violence humiliates and debases. It diminishes human dignity. It arouses feelings of fear and breaks moral and physical resistance. I am far from saying that all racial abuse falls within Article 3. But I am clear that when sustained and when coupled with racially motivated violence, it does so. Furthermore, in the instant case, having regard to the claimant’s medical condition, whatever its cause, the treatment to which the claimant was subjected caused a deterioration in his condition. It was treatment which falls within Article 3. The Report of Dr Patel, received on 12th March 2002 speaks of the racist verbal and physical attacks in Glasgow as having exacerbated his health problems. It says that the experiences of racism seem to have had a devastating impact on the family as a whole, specifically leading to the two youngest children having psychological health problems. (See Opinion at page 4 of the Report).[17]Whilst the treatment meted out to the claimant and his family undoubtedly falls within Article 3, it must be recalled that it was not the treatment to which the United Kingdom or its agents itself subjected the claimant and his family. The claimant’s case is not that the decision to send the claimant and his family to the Toryglen Estate itself constituted inhuman or degrading treatment. To that extent this case differs from the actions of the Secretary of State in R on the application of Q & Ors v The Secretary of State for the Home Department [2003] EWCA Civ (see paragraph 54-59). The case advanced by this claimant is that the Secretary of State was under a positive duty to protect the claimant and his family against the treatment which they in fact suffered in Glasgow by ensuring that they were not sent to the Toryglen Estate and by housing them elsewhere.[18]The circumstances in which the State owes a positive obligation derived from Article 3 were outlined in Pretty (q.v. supra). The Court said:- “49. Article 3 of the Convention, together with Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe. In contrast to the other provisions in the Convention, it is cast in absolute terms, without exception or proviso, or the possibility of derogation under Article 15 of the Convention.50. An examination of the Court’s case-law indicates that Article 3 has been most commonly applied in contexts in which the risk to the individual of being significant to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities. It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in the light of the fundamental importance of Article 3, the Court has reserved to itself sufficient flexibility to address the application of that Article in other situations that might arise.51. In particular, the Court has held that the obligation on the High Contracting Parties under Article 1 of the Convention, to secure to everyone within jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requiring States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or human and degrading treatment or punishment, including such treatment administered by private individuals. A positive obligation on the state to provide protection against inhuman or degrading treatment has been found to rise in a number of cases……”[19]Whilst it is clear to me that the treatment to which the family were, in fact, subjected falls within Article 3, it does not follow that the treatment to which they risked exposure itself fell within that Article. I conclude, however, that the treatment the family risked did fall within Article 3. The harm to which the claimant asserts he risked exposure was not merely racial abuse but such abuse coupled with racially motivated violence. For the reasons I have given above, such harm is of a type falling within Article 3.[20]Since the harm to which the claimant and his family risked exposure was not harm inflicted by the State or State agents, the question arises as to the level of protection which the State should provide.[21]The claimant contends that the Secretary of State’s obligation to protect him and his family against the risk of treatment falling within Article 3 required him firstly to inform himself of the risks particularly in relation to “deck access” flats on that estate, where police intervention was more difficult. In the light of the risks of racial violence on the Toryglen Estate, the Secretary of State was required to ensure that the family was not sent to that estate.[22]The Secretary of State accepts that NASS was unaware of any specific problems in relation to the Toryglen Estate (see the third statement of Simon Meares dated 19 March 2003 at paragraph 6). But he contends that there was no specific risk of which he ought to have been aware. His obligation of protection was satisfied by the protection it affords individuals generally against violent crime and racist crime, by the provision of support within the community to those seeking asylum and by seeking to educate those tempted to exhibit their racial prejudice.[23]In the context of those rival contentions, I turn to the principles to be applied in relation to the obligation to provide effective protection against the risk of treatment falling within Article 3.[24]In E & Others v United Kingdom (33218/96), the Strasbourg Court was concerned with the obligation of a local authority to protect the applicants against sexual abuse. The Court said that the question was:- “Whether the local authority was or ought to have been aware that the applicant was suffering or at risk of abuse and, if so, whether they took the steps reasonable available to them to protect them from that abuse.”(Para.92) “The failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the state.” (See paragraph 99).[25]At Paragraph 100 the Court referred to the need for investigation, communication and co-operation between the relevant authorities.[26]In deciding whether the decision should have been made earlier it is appropriate to have regard to questions of policy. The Secretary of State, it was contended by Miss Giovannetti, in considering the level of protection to be provided, must have regard to the efficient use of resources in public sector housing, public order, crime prevention and the promotion of racial tolerance in an integrated society. The State is entitled to take into account that public sector housing in which asylum seekers can be accommodated is a rare commodity (see the policy objective in Section 97(1) of the 1999 Act) and the creation of no-go areas is likely to promote racial prejudice. The Secretary of State and NASS were entitled to take account of the fact that prejudice may be triggered or exacerbated by the concentration of asylum seekers in a particular area. It was to combat that exacerbation in part that the policy of dispersal as expressed in the 1999 Act was promoted.[27]The policy considerations, on which the Secretary of State relied, are relevant to the level of protection, which the State is obliged to provide. The standard of protection is similar to that which applies when persecution is attributed to a State under the Refugee Convention. In Krepel v SSHD [2002] EWCA Civ per Buxton L.J. said:- “..it is not surprising that the standard or test for state involvement in breach of article 3 is likely to be the same as the standard or the test for the attribution to the state of persecution under the Refugee Convention: because, there again, the state is only implicated in the acts of third parties that produce a situation that qualifies as persecution under the Refugee Convention, if it has failed to take appropriate steps to protect its citizens against those acts.” (see paragraph 13 cited above).[28]Buxton L.J. recorded the concurrence of the two tests recognised by the Administrative Court in Dhima, decided on 6th February 2002, and continued by adopting the test in the context of the Refugee Convention set out by Lord Clyde in Horvath [2001] 1 AC at 489 at 510 E-H. Lord Clyde emphasised that there was no absolute guarantee of immunity. The obligation must not be interpreted so as to:- “impose an impossible or disproportionate burden upon the authorities.”

He continued:

“There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of acting contrary to the purposes which the convention requires to have protected. More importantly there must be ability and a readiness to operate that machinery. From precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.”
[29]It is not enough that the enforcement agencies are doing their inefficient or incompetent best (see paragraph 28 in the judgment of Schiemann L.J. in Souad Noune v Secretary of State for the Home Department [2001] INLR 526 at 539 to 40).[30]Moreover, as the Court of Appeal recognised in Lord Saville v The Widgery Soldiers & Ors [2001] EWCA Civ 2048 at paragraph 32, alleviation of a risk has to be balanced against adverse consequences by taking those measures of alleviation:- “applying common sense and humanity. The result of the balancing exercise will determine the appropriate decision.” (See paragraph 31).[31]In E & Others the Strasbourg Court referred to a failure to take ‘reasonably available measures’. Accordingly the State is under no obligation to guarantee safety or non violation of Article 3; it is required to take reasonable measures to make necessary protection available (see Sedley LJ in MacPherson v Sahd [2002] INLR 139.[32]The argument that the extent of the risk was such that the Secretary of State and NASS should have avoided dispersal to the Toryglen Estate raised questions as to the nature of the risk which should have been foreseen. In Osman v United Kingdom [1998] 29 EHRR 245 in the context of Article 2 the Strasbourg Court stated:- “It must be established to its satisfaction for the authorities knew or ought to have known that at the time of the existence of a real and an immediate risk of a life an identified individual or individuals from the criminal acts of a third party and that they have failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” “Well above the threshold that will engage Article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself.” (28)[33]The Court of Appeal pointed to the difficulty of enunciating a test which encapsulates a threshold of risk (see paragraph 28). This was not surprising since the assessment of risk is a matter of judgment and not of observation (to avoid Lord Diplock’s reference to the Kantian “noumenon”). The Court of Appeal’s solution is at paragraph 31. The appropriate course is:- “to consider first the nature of the subjective fears that the soldier witnesses are likely to experience …., to consider the extent to which those fears are objectively justified and then to consider the extent to which those fears, and the grounds giving rise to them, will be alleviated if the soldier’s gave their evidence somewhere in Great Britain rather than in Londonderry. The alleviation then has to be balanced against the adverse consequences to the enquiry of the move of venue, applying commonsense and humanity. The result of the balancing exercise will determine the appropriate decision.”[34]I do not think it is necessary, or indeed desirable, to characterise the nature of the risk which the State was obliged to take reasonable available steps to avoid. If there was any more than a fanciful risk of which the State knew or ought to have known, it was obliged to take some reasonably available steps to avoid it otherwise it would fail in its obligation of protection. But the degree to which it should provide protection will depend upon the degree of risk. The greater the risk, the greater the protection required provided only that the steps must be reasonably available and they must provide a real prospect of altering the outcome or mitigating the harm.[35]The more general the risk, the more general the steps will be which the State is obliged to take by way of protection. This case is not concerned with specific threats to a specific individual. To that extent it differs from those cases where it was contended that insufficient steps had been taken to protect an abused child (E & Others) or a prisoner under threat (R (on application of DF) v Chief Constable of Norfolk and SSHD [2202] EWHC Admin 1738). But, to my mind, the position of a family such as this is not significantly different. Contrary to the submissions of the Secretary of State, I do not accept that the family had any real choice as to where to go (see in a different context Al-Ameri v RBKC [2003] EWCA 235 Para 39-40).[36]I conclude:(1) the Secretary of State was under an obligation to provide protection against a risk of treatment falling within Article 3 of which it knew or ought to have known;(2) the level of protection it was required to provide was that which was reasonably available;(3) that level need not afford a guarantee against the danger but had to be reasonable, as a matter of practicality, common-sense and humanity, taking into account relevant policy considerations;(4) the measures to be taken are those which afford a real prospect of avoiding the danger;(5) the extent of the risk will inform the extent to which protection should be provided.

The existence of a specific risk on the Toryglen Estate

[37]In the instant case, the claimant contends that the risks on the Toryglen Estate to asylum seekers were so great and so specifically directed towards racial minorities that no asylum seeker should have been required to live there. NASS and the Secretary of State deny that the risks were any greater than elsewhere in Glasgow or, unfortunately, elsewhere in the United Kingdom. The circumstances were not, therefore, such as to require any decision to refuse to accommodate asylum seekers in such a location. Having regard to the rival contentions of the facts, I do not think it necessary further to consider general propositions of law. The claimant contends that there was a specific danger to asylum seekers on the Toryglen Estate. Accordingly, unless the claimant establishes such a specific risk it does not seem to me that he can successfully establish that the Secretary of State infringed his rights enshrined in Article 3. Absent such specific danger, it seems to me that the Secretary of State was entitled, as a matter of policy, to provide accommodation within an inner city provided that there was a general system for providing police protection, social support and programmes designed to improve community relations. The 1999 Act expressly directs the Secretary of State to have regard to the policy objective of providing accommodation to asylum seekers in areas where there is already a supply of accommodation (see Section 97(1)(b)). There is a problem in relation to inner city crime. There are many vulnerable groups such as the elderly and infirm and those suffering from mental illness who are particularly vulnerable to crime. It has not been suggested and could not be suggested that in those circumstances the Secretary of State is obliged to accommodate asylum seekers elsewhere, still less that local housing authorities are obliged to house the vulnerable elsewhere. Were it otherwise the very act of placing asylum seekers and the vulnerable might trigger and exacerbate problems of prejudice. The widespread general danger occasioned by prejudice might itself trigger the creation or maintenance of “no-go” areas or limit the potential availability of scarce public sector accommodation. The claimant has not argued to the contrary. In those circumstances this case turns on whether the claimant has established a particular and specific danger of ill treatment within Article 3 directed against asylum seekers in the Toryglen Estate of which NASS ought to have been aware.[38]The claimant and his family occupied what has been described as “deck access” accommodation on the Toryglen Estate in Glasgow. This was first made available to NASS by Glasgow City Council on 17th July 2000 (see Simon Meares’ second statement at paragraph 6). The Glasgow asylum project team of Glasgow City Council was aware of what the asylum support project manager describes as “some problematic issues” relating to deck access properties in Toryglen from the onset (see letter dated 4th February 2003). The project manager says that the asylum project team and the police closely monitored the situation. He says that there was a considerable amount of dialogue between Chief Inspector McKinlay and the project team regarding the suitability of deck access properties in Toryglen. On 1st November 2001, after the attack on the claimant’s family, Chief Inspector McKinlay wrote:- “The situation at this location (the claimant’s home) causes me considerable concern. There is a significant problem of disorder by young people, many of whom are targeting asylum seekers in what can only be described as racially motivated attacks. Despite increased police patrols the acts of disorder continue. Local officers feel that the deck access house there (sic) are not suitable for asylum seekers due mainly to the lack of concierge support and controlled entry systems. They feel that this family should be allocated alternate housing in Glasgow and I fully support this view.”[39]On 4th April 2002 Chief Inspector McKinlay wrote to those instructed by the claimant:- “The Toryglen area of Glasgow is one of many sites throughout the city selected by Glasgow City Council as accommodations for asylum seekers dispersed by the National Asylum Support Service. The area consists of high-rise block and “deck access” to tenement properties. There is a stark contrast between the two types of property. The high-rise blocks offer no particular issues and to a large extent asylum seekers have settled well there. The “deck access” houses on the other hand caused difficulties from the outset, largely due to the absence of controlled entry system and concierge staff. The difficulties involved disturbances by young people, vandalism, and threats of violence, actual violence and racist abuse. Police in the area were not comfortable with the deck access houses but had no right to veto. The City Council were in a difficult situation because they had a shortage of four apartment (three bedroom houses) for larger families and NASS were in need of that type of accommodation. The Council therefore had little option but to use them. The situation regarding the houses deteriorated to such an extent that on Thursday, 1st November 2001, a meeting was held in Toryglen to discuss their future use. Representatives of Glasgow City Council House, Glasgow Asylum Seekers Support Project and Strathclyde Police were present. As the police representative, I took the view that the continued use of the “deck access” houses as accommodation for asylum seekers was no longer viable due the number of incidents where they were victims. Although this view caused them severe difficulties the City Council accepted this advice and decided to discontinue their use. All asylum seekers remaining they were offered alternative accommodation elsewhere in the city. Only one family decided to remain and are still there. The high-rise blocks are also still in use.”[40]This evidence, by itself, establishes, contends the claimant, from the outset that there was such disturbance caused by threats of violence, actual violence and racial abuse that no asylum seeker should have been accommodated on deck access housing. The fact that the City Council was short of suitable accommodation was no justification for housing asylum seekers in that particular type of accommodation where police protection was difficult.[41]The claimant derives further support for the proposition that there was particular risk in Toryglen from sources, some of which became available since the hearing before the previous judge. The evidence upon which the claimant relies in further support is particularly dependant upon a helpful report from Positive Housing Association (“PHA”). This is a minority-ethnic housing charity in Scotland one of whose main aims is to assist minority ethnic and refugee communities to overcome racial harassment and poor housing. It takes the view that deck-access property is not the problem. Its report states that Toryglen is not multi racial. It is a predominately white area with social problems (see paragraph 4(2)). It is an area actively avoided by ethnic minority clients when they seek re-housing because it is seen as hostile to the presence of ethnic minorities (see paragraph 4(1)). It has a bad reputation for gang related violence (4(3)). The PHA report that the City’s housing department would have known of the concerns from ethnic minorities. This was the situation, PAH states, before the policy of dispersal. Thereafter, there is significant evidence that the racism problem on the Toryglen Estate increased. The police division G which includes Toryglen, reported the highest number of racist incidents between 1st April 2001 to 31st March 2002. After racist incidents against asylum seekers were second to only one other division (E Division including Sighthill which had the highest number of racist incidents). PHA took the view that both Glasgow City Council and NASS must have known of the problems (see paragraph 5 of the report). There was substantial publicity, it says, in the press and it refers specifically to details of press reports of racist violence against asylum seekers (see paragraph 8 of the report). The report concludes:- “The Toryglen Estate was a well known area of racism and racist violence prior to the dispersal system and that, following the introduction of dispersal, the incidents of racial motivated incidents greatly increased. Toryglen has the highest level in Glasgow of racially motivated incidents against asylum seekers. Without question the police, the council and NASS were aware or should have been aware through a variety of means of the serious problems of racial violence in Toryglen and in Glasgow generally. The level of racial violence in Glasgow reached an extreme peak by September 2001. ”[42]The claimant derives further support from a report obtained by Strathclyde Police dated 2002 concerning racist incidents in Strathclyde between April 2001 and March 2002. In summary 1,495 racist incidents were reported to Strathclyde Police between April 2001 and March 2002 involving 2,105 complainers from over forty different ethnic backgrounds. Asylum seekers were more vulnerable to crimes of violence and the highest division was G Division which included the Toryglen Estate. Racist incidents involving asylum seekers accounted for 14.6% of all racist incidents. The total number involving asylum seekers was 218. In the Strathclyde division the extent of racial harassment incidents reported from rose from 866 in the year 1999 to 2000 to 1241 in 2000 to 2001 and 1495 in 2000 to 2002.[43]On the basis of that evidence the claimant contends that there was a specific risk to which asylum seekers were exposed by dispersal to the Toryglen Estate. True it is that the local responsibility as to where asylum seekers were to be housed rested with Glasgow City Council. But neither the Secretary of State nor NASS contend that they can divest themselves of responsibility merely by reliance upon Glasgow City Council. Section 100(2) of the 1999 Act requires a local authority to:- “co-operate in giving the Secretary of State such assistance in the exercise of that power (the power under Section 95 to provided accommodation) as is reasonable in the circumstances.” A local authority must supply to the Secretary of State information about housing accommodation requested by the Secretary of State (see Section 100(4)).[44]Miss Harrison on behalf of the claimant contends that the Secretary of State, prior to dispersal, breached his obligation of protection by failing to make adequate enquiries as to the problems in Glasgow. Had such enquiries been made the Secretary of State could reasonably have been expected to appreciate that the police were unable to provide proper protection for asylum seekers on the Toryglen Estate. In those circumstances the obligation for protection required the Secretary of State to see that they were housed elsewhere.[45]To be set against that evidence is the evidence to which Mr Meares of NASS refers in his first witness statement dated 28th June 2002. NASS had available statistics up to December 2001. It received reports of abuse from the police providers of NASS accommodation and the voluntary sector (see paragraph 5). The figures which NASS had obtained show that Glasgow received the third highest number of asylum seekers, 4750, less than the north east (Newcastle and Middlesbrough) and the north west (Manchester). The number of incidents in Glasgow recorded were 154 and the ratio is 3.24%. That was significantly less than the ratio of incidents to the number of asylum seekers in Middlesbrough and Newcastle and in Manchester, 6.82% and 4.05% respectively.[46]Nor is all the news as gloomy as might first appear. Chief Inspector McKinlay in his letter dated 4th April 2002 describes the situation of asylum seekers in Glasgow as:- “Not as bad as the media would portray” He records that the vast majority of between 7,500 and 8000 asylum seekers resident in Glasgow settled well and seemed happy. There was no reason why the claimant and his family could not have been accommodated elsewhere in the city. This is consistent with his recommendation to the Glasgow asylum support project on 1st November 2001. In short, high-rise blocks within Toryglen caused no particular problem and the policy of dispersal, support, and education seems to have worked well after dispersal to deck access housing on the Toryglen Estate was discontinued.[47]It seems to me the essential question is whether the risks of which NASS ought to have known at the deck access housing on the Toryglen Estate were of such gravity as to require a decision to have been made before October 2001 not to accommodate asylum seekers in such housing on the Toryglen.[48]This depends on whether the risk of racial violence coupled with abuse had reached such a level that it was no longer reasonable to rely upon police protection. Unless it had reached such a level, the policy considerations which I have identified made it reasonable to rely upon the protection afforded by the police, coupled with the support provided to asylum seekers.[49]I should say at the outset that I am concerned at the apparent ignorance of NASS as to increasing problems on the Toryglen Estate. Whilst much of that information has only been made available in consequence of the order after the first day’s hearing before a different judge, it does not seem to me sufficient that NASS relied upon statistics available in September 2002, which were only relevant up to the end of December 2001. It seems to me that there ought to have been in place a system whereby such information was updated to cover at least the first part of 2002. But that is of no avail to the claimant unless on receipt of such information, NASS ought to have declared the deck access property, a ‘no go’ area before the dispersal of the claimant and his family to such accommodation. In my judgment the obligation to provide adequate protection against the risk of racial violence and abuse in such accommodation did not require NASS to ensure that asylum seekers were not accommodated in deck access accommodation on the Toryglen Estate. Prior to the incident on 27th October 2001, the police had not advised Glasgow City Council to provide alternative accommodation. It appears from the letter from Chief Inspector McKinlay that it was only after the incident of 27th October 2001 that he took the view that the situation had deteriorated to the extent that it was necessary to have a meeting to discuss the future use of such accommodation. It was only then that the police appear to have taken the view that such accommodation was no longer viable. I appreciate there were concerns before, but until the police took the view that advice to discontinue the use of deck access accommodation should be given, NASS was under no obligation to discontinue their use. Absent such advice, the measures of protection were, in my judgment, reasonable involving, as they did, police protection which included, as the evidence of the claimant’s wife discloses, the provision of an alarm system in at least one flat. The police appear to have taken the view that before the incident on 27th October 2001, the situation had not deteriorated to the extent that advice to discontinue deck access accommodation should be given. In those circumstances I do not find that the level of protection was inadequate.[50]Miss Harrison advanced a further argument based upon the Secretary of State’s breach of his statutory responsibility under Section 95 of the 1999 Act, which requires the Secretary of State to provide accommodation which appears to the Secretary of State to be adequate for their needs and supported person. Accommodation within deck access housing in the Toryglen Estate, she argues, was inadequate.[51]In my view this argument adds nothing to the argument advanced as to the inadequacy of protection. The claim is not brought as a breach of statutory duty. The Secretary of State’s power is limited by the consideration as to which I have already referred in Section 97, as to the desirability of providing accommodation in areas in which there is a ready supply. It cannot be said that the accommodation was inadequate unless the risk of being subjected to treatment falling within the scope of Article 3 was so particular and so grave that police protection was inadequate. For the reasons I have already advanced, the risk had not reached that level until after the appalling treatment to which the claimant was subjected.[52]For those reasons, I conclude that the decision to disperse the claimant and his family to the Toryglen Estate did not amount to a failure to provide adequate protection against treatment falling within the scope of Article 3. The Secretary of State and NASS were not in breach of their obligations under Article 3.[53]A further argument was directed to the claimant’s rights under Article 8. Treatment which the claimant and his family in fact suffered constituted an infringement of their rights enshrined in Article 8 as well as under Article 3. But since the claimant has failed in relation to Article 3, it follows he fails to establish any breach under Article 8.

DAMAGES

[54]I heard argument as to damages. In the light of my conclusion, any remarks I make as to the level of damages to which the claimant and his family would have been entitled, would be obiter. The principles to be applied were addressed by Sullivan J. in Bernard and by Silber J. in N. It does not seem to me that it would add to the learning on the subject were I to make further obiter remarks. Should this case be considered by another court, I should only say that I would not have regarded a declaration of a breach of Article 3 as itself affording just satisfaction to the claimant (see Section 8(3) of the HRA 1998). I would have regarded it both as necessary, just and appropriate to award damages to the claimant.[55]The claimant falls to be compensated for the deterioration summarised by Dr Patel over a period of 6 months. So much was agreed. It was not suggested that there was any permanent exacerbation. The children and the claimant’s wife were also subjected to degrading and humiliating treatment. The effects of the Secretary of State and NASS’ failures, had they been established, to provide adequate protection were exacerbated by the initial decision to require the family to return to the very property in which they had suffered such grave treatment. Further, until 30th January 2002 they were without the support of vouchers. Those two features flowed from the alleged failures of NASS to accommodate the claimant and his family elsewhere. Damages should equate with the damages for exacerbation of psychological injury in accordance with the JSB Guidelines for the assessment of general damages in personal injury cases. I think a reasonable figure to take into account those features to which I have referred would be £5,000.[56]However, it is with regret that I conclude that the claimant has failed to establish a breach of Article 3. I emphasise my regret. The treatment, to which the claimant and his family were subject, brings shame to the perpetrators. The absence of any concept of tzedakah, the combination of justice and charity, is all too plain. - - - - - - - - - - - - - - MR JUSTICE MOSES: For the reasons in the judgment that I have handed down, this application fails. Yes? MS WEBBER: My Lord, I appear on behalf of Ms Harrison in her absence. My Lord there are two matters arising. One is an application for permission to appeal. My Lord, the basis on which I put the application is this, that this case does raise an important question and one of general importance. MR JUSTICE MOSES: What is the novel point? MS WEBBER: My Lord, it is specifically in relation to a dispersal of asylum -- MR JUSTICE MOSES: But the principles in relation to the level of protection and Article 3 are very well settled now. It is merely an application of those on the facts. MS WEBBER: My Lord, that is right, but I would make the application for permission on the basis that it is not clear from your Lordship's judgment that the point has been taken about the risk to this particular claimant in the light of his known psychiatric condition, and that what was the issue was not simply the specific risk to asylum seekers generally, but the specific risk to this claimant, Mr Gezer, in the light of the increased impact of any racial violence on him and the extent to which, therefore, the threshold is lowered by those sorts of considerations. Your Lordship, of course, did make a finding that the authority appears to have failed to make reasonable inquiries -- that is the paragraph 49 -- and so although, of course, it is right that it is a matter of evaluation, I do seek permission to appeal on the basis that the question arising is whether the threshold has been set too high in the light of your Lordship's findings -- (1) that the treatment to which the family was subjected and indeed exposed, constituted a breach -- MR JUSTICE MOSES: The risk I was talking about is the risk of whether there is going to be such abuse and violence, whoever it occurs to, on the deck access estate. It was not such I said as to justify turning it into a no go area while the police themselves did not so advise. MS WEBBER: My Lord, there are a number of issues -- MR JUSTICE MOSES: Do not worry about all the issues. That is one of your bases about why you want permission. Any other basis? MS WEBBER: The other matter is whether the approach to protection from harm coming from third parties gives rise to the same degree of obligation in a domestic case as in an expulsion case. MR JUSTICE MOSES: That is what the Court of Appeal has already decided -- Buxton LJ in Krepel. MS WEBBER: The third matter in relation to this is to what extent policy is a relevant factor -- that the policy of not wanting no go areas specifically in determining (inaudible) necessary to avoid a real risk. MR JUSTICE MOSES: That has been decided by the Master of the Rolls in Lord Savile's case. It says you have to balance the advantages against the disadvantages. Any other issues about appeals? MS WEBBER: The only other issue, my Lord, is that I appreciate that since this is obiter it is unlikely on its own to attract your Lordship to the question of assessment of damages. MR JUSTICE MOSES: Everybody is anxious that that should get to the Court of Appeal. MS WEBBER: And the sum of the issues that I have identified are, of course, subject to appeal, as your Lordship is aware, in the consolidated cases. MR JUSTICE MOSES: On damages, yes. Thank you. Do you want to say anything, Miss Stern? MISS STERN: Unless there is any point on which your Lordship requires any assistance, our point would simply be that your Lordship applies the well established principles to the facts, and that in the end, the judgment is really determinative on your Lordship's assessment of facts. MR JUSTICE MOSES: I agree, I am not going to give permission because of that. MISS STERN: I will not add anything further. MR JUSTICE MOSES: You ask for the application to be dismissed? MISS STERN: The application for leave to appeal? MR JUSTICE MOSES: No, you ask for the application for judicial review to be dismissed? MISS STERN: My Lord, yes. MR JUSTICE MOSES: The claim for damages -- I will dismiss those. Is he legally aided? MS WEBBER: Yes. My Lord, there is however a particular question as to the costs thrown away in relation to the hearing of 5 and 6 December. MR JUSTICE MOSES: If you are Legally aided, what difference does it make? MS WEBBER: My Lord, I have been asked to raise the matter in order to protect the legal aid fund. MR JUSTICE MOSES: On what basis? Who should pay those? MS WEBBER: It is our very clear submission that the only reason that the case had to be adjourned on that date was because the Secretary of State was not ready, although he had had -- MR JUSTICE MOSES: I thought it was because the judge had asked various further questions. MS WEBBER: Really the point is this: questions had been asked from March 2002 by those instructing me, so that really the basis on which Ms Giovannetti sought an adjournment was that the Secretary of State had not been on notice that the challenge was to the initial decision to disperse, until receipt of the skeleton argument. MR JUSTICE MOSES: That was gone into in the skeleton before me. MS WEBBER: That was clearly unsustainable, but it was on that basis, apparently, that the case for the Secretary of State had prepared, and it was for that reason -- because of a clear misapprehension which lay at the door of the defendant -- it was for that reason that the defendant was not ready to deal with those matters and had not produced the relevant evidence at the hearing of 5 December. My Lord, there is correspondence in pages -- MR JUSTICE MOSES: I do not have the papers here. Anything else you want to say? MS WEBBER: My Lord, I am instructed that there was, in fact, a consent order from June of last year when the Secretary of State agreed to pay the costs. MR JUSTICE MOSES: Can I see it? Because you will lose me if you do not -- MS WEBBER: Your Lordship will see the last item on the consent order relates to the costs of the adjournment. MR JUSTICE MOSES: Yes, of 17 June. That is not the wasted day in front of the judge, that is some other day. MS WEBBER: Apparently it was adjourned on that date as well. MR JUSTICE MOSES: I do not have to make any order about that, there has been a consent. MS WEBBER: Very well, my Lord. MR JUSTICE MOSES: And I am not going to let you have the costs of the hearing in front of Goldring J. Those are the fortunes of war as it seems to me. MISS STERN: My Lord, I did have an application for costs on the usual basis against a legally assisted party. I simply ask for that order. MR JUSTICE MOSES: And the proper order is nowadays? MISS STERN: My Lord, I am afraid I do not have the precise wording. MR JUSTICE MOSES: Thank you very much.