Article 3 — the threshold for engagement

Executive summary

Two recent judicial review cases provide some useful commentary on the nature and scope of Article 3 of the European Convention on Human Rights (the Convention). The complex facts and findings are beyond the scope of this short update which instead focuses on some key principles.

R (Aburas) v Southwark London BC [2019] EWHC 2754 (Admin)

 This case relates to the decision of the local authority that, following an assessment under the Care Act 2014, the applicant did not have relevant needs requiring care and support. In dismissing the argument that this decision infringed the applicant’s Article 3 rights, the judge confirmed:

• Per R (Limbuela) [2005] UKHL 66 — “Treatment is inhuman or degrading if, to a seriously detrimental extent, it denies the most basic needs of any human being. As in all article 3 cases, the treatment proscribed must achieve a minimum standard of severity, and…in a context such as this, (i.e. not involving the deliberate infliction of pain or suffering), the threshold is a high one”.
• The burden of proving a Convention breach rests with the claimant. In respect of qualified rights such as Article 8, the defendant has to justify any interference.
• The evidence in this case did not establish that there was “an imminent prospect of serious suffering caused or materially aggravated by the refusal to provide supported accommodation.”
• There was no family unit involved and therefore Article 8 did not materially add to the case.

 R (Gasztony) v Secretary of State for the Home Department [2019] EWHC 2879 (Admin)

This was a case relating to the immigration detention of an individual suffering from ASD. The judge confirmed:

• In order to reach the threshold necessary to engage Article 3, the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment (in this case, detention for immigration purposes).
• A claimant bears the burden of ‘conclusively establishing’ that the treatment reaches the relevant threshold.
• Article 3 may also impose a positive obligation on the state to take measures designed to ensure that treatment reaching the threshold is not suffered.
• The focus of Article 3 is different from that of Article 8. It is wrong to consider that an Article 3 claim can be treated in the alternative as an Article 8 claim, with the latter simply having a lower threshold.