(i)Said [2016] EWCA Civ 442 is not to be read to exclude the possibility that Article 3 ECHR could be engaged by conditions of extreme material deprivation. Factors to be considered include the location where the harm arises, and whether it results from deliberate action or omission.
(ii) In cases where the material deprivation is not intentionally caused the threshold is the modified N test set out in AM (Zimbabwe) [2020] UKSC 17. The question will be whether conditions are such that there is a real risk that the individual concerned will be exposed to intense suffering or a significant reduction in life expectancy.
(iii) The Qualification Directive continues to have direct effect following the UK withdrawal from the EU.
The Court found in particular that Article 5 was applicable to the applicants’ case as their presence in
the transit zone had not been voluntary; they had been left to their own devices for the entire
period of their stay, which had lasted between five and 19 months depending on the applicant;
there had been no realistic prospect of them being able to leave the zone; and the authorities had
not adhered to the domestic legislation on the reception of asylum-seekers.
Given the absence of a legal basis for their being confined to the transit zone, a situation made
worse by them being impeded in accessing the asylum system, the Court concluded that there had
been a violation of the applicants’ rights protected by Article 5 § 1.
The conditions the applicants had lived in had also been appalling: they had had to sleep in the
transit zone, a busy and constantly lit area, with no access to washing or cooking facilities. There had
thus also been a breach of Article 3 as their treatment had been degrading.
