Strangers at the Welfare Gate: Asylum Seekers, Welfare and Convention Rights after Adam

The Human Rights Act 1998 implemented the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in the UK. It has produced a number of significant changes on the immigration and asylum law regime, and assisted groups on the margins of welfare support like asylum seekers. The decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Adam and Others, in particular, highlighted how the Home Office and agencies like NASS can act unlawfully in Public Law terms by withdrawing support from needy groups who have no other source of assistance than the State - particularly if they are also, at the same time, barred out of the labour market. As the article considers, Adam has clarified the circumstances in which the withdrawal of state welfare support amounts to ‘treatment’ that infringes a claimant's rights under Article 3 of the European Convention on Human Rights, rendering such action unlawful in terms of section 6 of the Human Rights Act 1998. In the bigger picture, Adam and other recent court decisions considered in this article highlight how access to even ‘the most basic necessities of life’ (as Lord Bingham described them in Adam 1) will continue to depend on a strict construction by judges of statutory limitations on such support, or the deployment of key Convention articles - something which has been essential in the face of an increasingly restrictive statutory regime. Whilst the result in Adam plainly assists in the maintenance of a right to basic social protection for asylum claimants and dependants, the integrity of the UK's asylum system and claimants' ability to pursue claims, the precise scope of this judicially protected ‘right’ is uncertain. Apart from anything else, its future deployment will depend on its application to particular circumstances on a case-by-case basis. Nor is it entirely clear whether the imprecision of the principles established in Adam opens up opportunities in the future for courts to develop and deploy controversial judicial approaches such as the ‘spectrum analysis’ as a means of denying or withdrawing support for claimants. That analysis was adopted at the Court of Appeal stage of the case, with support by the majority of the court - and despite its obvious lack of authority from Convention jurisprudence, the concept was used again by that court in support of the decision in the disturbing case of R (Gezer) v Secretary of State for the Home Department.