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NH And Others v France: Are There Implications For Asylum-Seekers In The UK?

July 15, 2020 Immigration

The Court held France responsible for the ‘degrading treatment’ the asylum-seeker applicants had been forced to live in after the French authorities failed to provide them with adequate accommodation or material support to live.

is interesting in light of recent events involving asylum-seekers being accommodated in Glasgow hotels; in particular the Court’s finding that France had shown a which had caused

Of the five original applicants, one withdrew his application and returned to his country of origin, and the Court found no violation in respect of applicant SG.

The remaining three applicants (NH, KT, and AJ) were found to have been unable to ‘justify’ to the relevant French authorities their status as asylum-seekers for long periods of time due to procedural difficulties. Being unable to show that they were registered as asylum-seekers meant that they did not receive temporary accommodation, nor the financial support which France provides to asylum-seekers, for significant periods of time.

NH, KT, and AJ were homeless and Each of these three applicants applied to emergency administrative courts for assistance and were refused.

The Court held that the above-mentioned living conditions, combined with the lack of appropriate response from the French authorities, and the fact that the domestic courts had refused the applications for interim support due to a lack of resources, took the applicants’ circumstances over the threshold of severity to engage Article 3.

Consequently, France was held to be responsible for the conditions in which the applicants lived for several months; the applicants were held to have been victims of degrading treatment.

While the facts determined by the Court in are not analogous to the current hotel-living of asylum-seekers in Glasgow during lockdown, the principle may still prove to be relevant. That is: the Court is prepared to hold that a State acted in violation of Article 3 where, for a period of several months, asylum-seekers had to live in a way that violated their dignity and was degrading.

At the beginning of the lockdown period, asylum-seekers in Glasgow were taken from their Home Office-provided accommodation and moved into hotels in the city centre where they are provided with their daily meals. Consequently, the £37 weekly allowance they used to receive has been stopped, with the justification that the asylum-seekers now receive everything they need directly and thus have no cause to spend their previously-allocated allowance.

The removal of this weekly allowance took with it a sense of independence or dignity for many, now left with no ability to choose for themselves what to eat or when, and reportedly left without the means to buy sanitary products or other items they might require.

For some, the removal of the ability to carry out basic independent tasks (such as cooking their own meals) is said to have aggravated mental health problems and the forced hotel living has been likened to being kept in a detention centre.

While the Home Office’s position is that asylum-seekers being accommodated in hotels are free to come and go as they please, the reality of the lockdown meant that any such freedom was little more than theoretical and asylum-seekers were, in practice, confined to small hotel rooms and forced into communal eating spaces.

It has been reported in the local press that the food served to the asylum-seekers is of a standard that often renders it inedible: photographs of half-cooked chicken and mouldy bread accompanied reports of asylum-seekers refusing to eat the food served to them and arranging protests to raise awareness of their situation.

In addition to this, some asylum-seekers have raised concerns about their health and the inability to socially distance in the hotels, as well as the lack of consideration given to those with pre-existing mental health conditions or trauma who have been forced into the communal living arrangements.

The circumstances of the recent multiple stabbing in Glasgow city centre in which a Sudanese asylum-seeker was shot dead by responding police officers is a powerful example of the situation asylum-seekers may find themselves in. Mr Badreddin Abedlla Adamhad been staying in the Park Inn hotel along with other asylum-seekers, some of whom had already raised concerns about Mr Adamhad’s mental health and erratic behaviour.

It is easy to sympathise with asylum-seekers who have mental health problems and to accept that any such mental health problems mean they are not fully responsible for their actions and behaviour. Nevertheless, such sympathy surely provides scant comfort to the others living in close proximity to a person who might pose a threat to them.

It is not difficult to see how asylum-seekers in this situation might be able to make out the ‘referenced in .

Although any treatment alleged to be a violation of Article 3 must meet a minimum threshold of severity, the threshold itself is not fixed but is instead dependent on the circumstances of each case.

In the Court stated ‘

Accordingly, it would not be enough to say that there is nothing inherently degrading about living in a hotel and being fed three times a day; amongst other factors, the length of the stay in the hotel, and the physical and mental health of the asylum-seekers forced to do so are also relevant.

In , the Court acknowledged positive efforts made by France in relation to asylum-seekers generally, but this was not enough to preclude a violation of Article 3 being made out by the 3 successful applicants. Furthermore, as Article 3 is absolute in its terms, there is no balance to be struck between an alleged interference of the right and the public interest to be maintained by the Home Office, nor is a lack of resources a valid consideration or defence.

In the consideration of how asylum-seekers are to be accommodated and supported in the immediate future, the UK government might do well to remember this: if, taking into account the particular circumstances of individual asylum-seekers, Mears’ choice of accommodation and the removal of asylum-seekers’ financial independence amounts to degrading treatment or the violation of a person’s dignity, then it cannot lawfully be done – even in the midst of a global pandemic.

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