CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s715E7C6D { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B505E72 { margin:0pt; padding-left:0pt } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } Published on 2 April 2024   FOURTH SECTION Application no. 13063/23 M.G. against the United Kingdom lodged on 17 March 2023 communicated on 12 March 2024 STATEMENT OF FACTS 1.     The applicant, M.G., is an Ivorian national who was born in 1999 and lives in Glasgow. He is represented before the Court by Mr S. Zaq of Duncan Lewis Solicitors, a firm of solicitors practising in London. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, and disclosed in the course of the domestic proceedings, may be summarised as follows. Introduction 3.     On 26 June 2020 the applicant was stabbed by B.A. At the time both men were asylum seekers being accommodated at the Park Inn Hotel in Glasgow. The applicant sustained a serious injury which led to the removal of his spleen and ongoing psychological consequences. Background 4.     In order to discharge its statutory obligations under section 95 of the Immigration and Asylum Act 1999 (see paragraph 39 below), the Government entered into contracts with service providers. The Government also entered into a contract with Migrant Help to ensure that persons accommodated by service providers were provided with impartial and independent information and advice. A   Safeguarding Hub (“ the Hub”) formed a link between the Home Office and the statutory agencies responsible for safeguarding adults and children. Safeguarding issues were to be reported to the Hub, which was responsible for engaging with the relevant agency. 5.     The contract with service providers included a statement of requirements. These included provisions requiring the service provider to be proactive in monitoring and identifying service users with specific needs or who were at risk, to respond appropriately to the needs of service users, to report serious incidents to the Home Office within four hours, to take appropriate and necessary action to assure the safety and wellbeing of service users to the extent that was put at risk by anti-social or violent behaviour, and to ensure that all staff were trained in safeguarding. 6.     In March 2020, at the onset of the covid-19 pandemic, individuals who had had their asylum claims decided, and who would not ordinarily have been eligible for accommodation, remained accommodated by service providers. This decision was taken in order to reduce movements, and the impact on local authorities. However, it substantially increased the accommodated asylum seeker population, and reduced the accommodation available. The Home Office procured hotel sites to make up the deficit. 7.     Some asylum seekers were also moved into hotel accommodation to ensure that they had access to food and other services in a manner that allowed for self-isolation. It also minimised the need for service users and service providers to travel and facilitated the maintenance of social distancing measures. 8.     Staff working for the service providers and at the hotels were not medically trained and had no mental health training. Service users were, however, provided with access to medical help via the National Health Service (“NHS”). There were also welfare teams in each hotel which met each service user each day to check that they were well, eating and had access to any necessary hygiene products. The facts of the case at hand 9.     The applicant, a national of the Ivory Coast, claimed asylum in the United Kingdom in or around the end of 2019. On or about 3 June 2020 he was transferred to the Park Inn Hotel in Glasgow. 10 .     B.A. was a Sudanese national who had been transferred to the Park Inn on 10 April 2020. That same month he had contacted the Home Office, the service provider for Scotland (“Mears”) and Migrant Help on 72   occasions complaining, inter alia , about physical symptoms. On 26 April 2020 a housing manager for Mears noted that his “issues may have a psychological element to them”. In May and early June 2020 B.A. sought to return voluntarily to Sudan but was unable to do so due to restrictions on international travel. 11.     On 25 June 2020, at around 5 p.m., B.A. told another asylum seeker (“S.L.”) that he was low and that he “wanted to stab people”. S.L. spoke with B.A.’s interpreter at 8.30-9 p.m. that night and was advised to report the incident. S.L. then informed a member of the reception staff at the Park Inn. At around 11.30 p.m. hotel staff informed a Mears operator via telephone that they had had a complaint “from a number of residents” that “one of the ... residents was threatening to stab or attack the rooms around him ... He’s gonna stab whoever’s making a noise”. The hotel staff member asked to speak to an out of hours representative or “anyone who could come in and kinda deescalate the situation”. 12.     At 11.33 p.m. the Mears operator left a voicemail with the Mears housing manager, M.J.”, to say that one of the residents at the Park Inn was making threats to stab other residents. At 11.43 p.m. the Mears operator spoke to M.J., who then spoke to B.A. At his request she contacted a Sudanese interpreter but when she tried to call B.A. again he did not answer the call. When she called the hotel the receptionist told her that the matter could be dealt with in the morning. M.J. made a written report indicating that this was a “dispute between service users.” She did not tick the boxes for “safeguarding issue” or “violent or aggressive behaviour involving a service user.” 13 .     At around 8.30 a.m. on 26 June 2020 M.B., an Accommodation Team Manager for Mears, arrived at the Park Inn. When he read M.J.’s report he spoke to one of the receptionists who informed him that he was not worried because B.A. was in his room and had been very quiet. M.B. then spoke to the two men who had made the complaints about B.A., who confirmed that he had threatened to attack the occupants of the rooms next door, and above, if they continued to make noise. M.B. then spoke to B.A. through an interpreter, and noted that he “seemed completely calm and normal.” The conversation was interrupted by a telephone call to B.A. from his lawyer. 14.     At 10.51 a.m. BA’s solicitors sent an email to the Hub stating that B.A. was demonstrating signs of paranoia, and while this had been raised with reception staff, he had not met with a doctor. At 12.16 p.m. the Hub emailed Mears setting out the concerns that had been expressed and asking a member of the team to conduct a welfare check on B.A. 15.     Approximately half an hour after M.B. had spoken to BA (see paragraph 13 above), B.A. came to the reception area, where he was “confused and appeared not to really understand what was being said.” He stated his intention to walk to London to get tickets for his voluntary return to Sudan and complained of a “sore head” and a “sore brain.” M.B. indicated that he would make arrangements for him to be seen by a medic, and completed an incident report. The incident report, completed at 11.19 a.m., recorded that M.B. had made a referral to welfare although in fact he intended to do so later that day. In the incident report M.B. flagged the incident as a “safeguarding” issue. 16.     At around noon, M.B. had an “ordinary conversation” with B.A. about his laundry. When B.A. left the reception area he seemed “completely normal.” 17.     Between 12.40-12.50 p.m. B.A. attacked the applicant outside the hotel with what appeared to be a steak knife. The police were called at 12.50   p.m. 18.     B.A. then came back into the hotel where M.B. told him not to move while he checked on the applicant. When M.B. returned to the hotel he saw that one of the receptionists had been stabbed. B.A. stabbed a total of six   people, including the applicant and a police officer. 19.     He was shot dead by police upon their arrival. Investigations (a)    The police investigation 20 .     The Scottish police carried out an investigation into the events of 26   June 2020. They took 72 witness statements, seized CCTV footage, and obtained a warrant to search the rooms of B.A. and one other person. The case-file contains no evidence as to what followed. However, no person other than B.A. was suspected of being criminally involved in the attacks. (b)    The evaluation conducted by the Head of Asylum Operations for UK Visas and Immigration 21.     Following the incident the Head of Asylum Operations for UK Visas and Immigration, H.L., conducted an evaluation of “accommodation and support services experienced by asylum seekers in Glasgow during COVID ‑ 19”. The investigation included interviews with six service users. 22 .     A document setting out H.L.’s key findings and recommendations was disclosed in the course of the applicant’s judicial review proceedings (see paragraphs 31-37 below). She drew attention to the recommendations of the Independent Chief Inspector of Borders and Immigration (“ICIBI”) who, following an inspection in 2018 had recommended that contracts with service providers should cover how to carry out welfare checks on service users, and how to deal with any safeguarding issues, and that the Home Office should review providers’ safeguarding policies so as to ensure that they reflected best practice. The ICIBI had also emphasised the importance of information sharing and the need to ensure that all staff were fully trained for their roles. He further recommended that steps be taken to capture and analyse data in relation to “particularly vulnerable groups” to test the appropriateness of the accommodation provided in such cases. According to the document setting out H.L.’s findings and recommendations, it was not clear if the ICIBI’s recommendations had been implemented. H.L. noted that there had been an impact on the mental wellbeing of service users as a result of the combination of previous trauma, being accommodated long term in hotels, and the covid ‑ 19 restrictions, although it was difficult to say whether this was more significant than the impact on the general population. She further noted that hotel staff had become part of the system supporting asylum seekers, but without experience or training that would enable them to identify if a service user’s mental health was deteriorating. 23.     H.L. made a number of detailed recommendations which included increasing the areas in Scotland in which asylum seekers could be accommodated and reviewing the training provided to the staff of service providers. She made the same recommendations in respect of hotel staff since, as things stood, training for hotel staff was not built into the requirements when a hotel was stood up for use. 24 .     In her view, in the case at hand the number of times B.A. had been in contact with the Home Office, Mears, and Migrant Help (see paragraph 10 above) “should have acted as a warning.” While she considered that each of his enquiries was dealt with appropriately, there was no system in place to respond to the nature and frequency of his contact. She therefore suggested that consideration might be given to the development of a system “that allows for a person centric view of interactions across the system and identifies patterns of conduct that may be indicative of behaviours that may be cause for concern.” (c)    The investigation by the Scottish Fatalities Investigation Unit 25.     The Scottish Fatalities Investigation Unit (“SFIU”) also carried out an investigation. In a letter dated 17 September 2021, sent to the applicant’s solicitor, the SFIU indicated that the investigation was being overseen by Crown Counsel. Once the investigation had concluded, a report would be made to Crown Counsel, who would then decide whether a Fatal Accidents Inquiry would be required, taking account of the obligations owed under Article 2 of the Convention. The SFIU further indicated that steps were being taken to ensure that the investigation was prompt and proceeded with reasonable expedition, as required by Article 2. 26.     In or around June 2023 the applicant’s representative became aware that the SFIU investigation had concluded. He contacted the SFIU to inquire as to whether there had been a decision on whether a Fatal Accidents Inquiry would be instituted. By email dated 7 June 2023, the SFIU informed him that no decision had yet been made and that it was not known when such a decision would be made. The mail further noted that the SFIU was still undertaking extensive inquiries into the matter. (d)    Inquiry of the Independent Commission of Inquiry into Asylum Provision in Scotland with particular reference to failings in the provision of care to New Scots during the Covid pandemic 27.     This inquiry was commissioned by Refugees for Justice and carried out by a Panel chaired by Baroness Helena Kennedy KC. It produced two reports in 2022. 28.     The inquiry concluded that hotel staff appeared to have been poorly equipped to deal with the transfer at short notice of asylum seekers from their homes to hotels. They were not properly trained, they were overwhelmed, and they also suffered, as they had to step in and provide services that were outside their qualifications and job descriptions. It further found no evidence to suggest that lessons had been learned from experiences in Glasgow in the first months of the pandemic, and no evidence to suggest that the Home Office had implemented the recommendations it made to itself in its internal evaluation report. 29.     According to the inquiry, hotels and congregate living were not suitable accommodation for people seeking asylum. The situation was not only very damaging for the people placed in that accommodation, especially the longer they were there, but it was also bad for the Home Office and the Treasury. 30.     The inquiry could not compel witnesses or take sworn statements. Furthermore, while it was welcomed by the Home Office and efforts were made to engage both Mears and the Home Office in an exchange about the events that led up to the inquiry, the continuing litigation by those individuals harmed in the events appears to have prevented meaningful engagement. As a result, the Panel had to draw inferences from Home Office and Mears’ documents and oral evidence provided by other parties. Baroness   Kennedy   KC had “no doubt that there should be a statutory inquiry – and as soon as possible – into this incident – and also that wider inquiries into decisions made during the pandemic should include specific reference to people seeking asylum and refugees. A statutory inquiry, with the powers to compel witnesses and create legally binding recommendations, would provide justice for those – asylum seekers, hotel staff, support workers and witnesses – who have been so deeply harmed by the tragedies in 2020”. The judicial review proceedings 31 .     The applicant sought permission to apply for judicial review, seeking an order to bring about an Article 3 compliant investigation. In his application he contended that the facts of the case engaged both the positive obligation to provide a regulatory framework and the positive obligation to take preventive operational measures. 32.     It was his case that the residents of the hotel were vulnerable asylum seekers whose vulnerabilities were exacerbated by the conditions of their accommodation. The State had assumed responsibility for their welfare and it exercised a high degree of control over them. In those circumstances, the fact that the staff at the hotel were not trained in mental health, de-escalation or incident management arguably breached the duty to provide a regulatory framework. Furthermore, the authorities knew or ought to have known that B.A. posed a real and immediate risk of harm to others. He had made threats to stab other residents the night before the incident and there were therefore arguable failings which pointed to an arguable breach of the operational duty. He therefore contended that the investigative duty applied, and no Article 3 compliant investigation had been carried out. H.L.’s report (see paragraphs   22-24 above) left a number of gaps and in any event was not independent. The police investigation started and ended with B.A.’s responsibility for the stabbings and did not examine the wider operational and systemic issues. Two years on from the attack the SFIU was still investigating and little was known about the scope of that investigation. 33.     In a judgment dated 20 July 2022 the High Court found that there was no arguable breach of the obligation to put in place an appropriate legislative and regulatory framework. While the Home Office may have owed a duty to the applicant and B.A. to take reasonable care to ensure that they were each reasonably safe in using the hotel premises, that did not mean it had a more general obligation to safeguard their welfare. They were not under the Home Office’s exclusive control. Although they were provided with accommodation, they were not under a legal obligation to make use of it. They were subject to the rules of the hotel (where, they alleged, the front door was closed between 11 p.m. and 6 a.m.), but they were not detainees. As such, they were not in a comparable position to a prisoner, a person in a care home or a young child in a State-run facility. Although they were vulnerable in the broad sense, being asylum seekers, there was no evidence to suggest that they had special needs that would have made hotel accommodation unsuitable. Therefore, the case did not fall within any of the existing categories where a duty to provide a regulatory framework had been found to exist. While those categories were not closed, the removal or curtailment of individual autonomy was a common theme in cases where such a duty applied. In the present case, however, there had been no removal of the applicant’s autonomy and he was not reliant on the Home Office for his well-being, save to the extent of avoiding destitution and providing access to medical care 34.     There was also no arguable breach of any operational duty. Prior to the evening of 25 June 2020 there was no evidence that B.A. posed a real risk of harm. Even then, a threat to commit an assault did not necessarily give rise to a real and immediate risk to life; this was demonstrated by the facts of Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998-VIII). This depended on the facts and in the present case there were gaps in the evidence. However, at whatever stage it should have been appreciated that B.A. posed a real and immediate risk to life, the applicant had not discharged the burden of demonstrating that there was an arguable failure to take reasonable steps in response. The threats were appropriately and timeously reported, and an assessment was made that there was no immediate need for any positive action on the night of 25 June 2020, which turned out to be correct. The following morning B.A. was not acting in a manner that could reasonably have been thought to give rise to any particular level of risk, and the police were called as soon as the attack began. 35 .     Finally, the court found that even if the duty to investigate had been triggered, there had been no failure to investigate. The police had carried out an investigation (see paragraph 20 above). While that was not an effective mechanism for identifying non-criminal systemic failings on the part of the State authorities, a broader independent investigation would only be required if the State was arguably in breach of the either the duty to provide a regulatory framework or the operational duty to protect. Even if the court’s conclusions on these two issues were not correct, and the criminal investigation was not sufficient, the appropriate mechanism for discharging non-criminal elements of the State’s investigative obligation would be an inquest in England and Wales, and in Scotland an SFIU investigation followed, if necessary, by a Fatal Accidents Inquiry. If the SFIU failed to comply with its obligations the applicant would have a remedy under section   7 of the Human Rights Act 1998 (see paragraph 40 below). 36.     The applicant’s judicial review claim was therefore dismissed. 37 .     The applicant sought permission to appeal on the ground that the High Court judge erred in finding that (i) the duty under Article 3 of the Convention to have in place a regulatory framework was not engaged; (ii) the Article 3 operational duty to protect was not engaged; and (iii) the SFIU process and Fatal Accidents Inquiry process would suffice to satisfy any duty to investigate that might have arisen under Article 3. 38.     On 18 November 2022 the Court of Appeal refused permission to appeal. In doing so, it noted that even if the first and second grounds were arguable, the applicant would have to succeed on the third ground. However, that ground was not arguable as the judge had plainly been right to conclude that any duty to investigate would be discharged, in particular by the SFIU (see paragraph 35 in fine above). RELEVANT LEGAL FRAMEWORK The Immigration and Asylum Act 1999 39 .     Pursuant to section 95(1) and (3) of the Immigration and Asylum Act 1999, the Secretary of State may provide, or arrange for the provision of, support for asylum-seekers who appear to him or her to be destitute or likely to become destitute. A person is considered to be destitute if he does not have adequate accommodation or any means of obtaining it , or he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs. The Human Rights Act 1998 40 .     Section 7(1) of the Human Rights Act 1998 allows a person who claims that a public authority has acted (or proposes to act) incompatibly with a Convention right to bring proceedings against the authority in the appropriate court or tribunal, or to rely on the Convention right or rights concerned in any legal proceedings, if he is (or would be) a victim of the unlawful act. Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 41.     Pursuant to section 1 of the 2016 Act, where an inquiry is to be held into the death of a person who died in Scotland, the procurator fiscal must investigate the circumstances of the death, and arrange for the inquiry to be held by a Sheriff. The purpose of an inquiry is to establish the circumstances of the death, and consider what steps (if any) might be taken to prevent other deaths in similar circumstances. It is not the purpose of an inquiry to establish civil or criminal liability. 42.     Inquiries are mandatory where the death occurred in the course of employment or where the deceased was either in legal custody or a minor in secure accommodation. Otherwise an inquiry will be held if the Lord   Advocate considers that the death was sudden, suspicious or unexplained, or occurred in circumstances giving rise to serious public concern, and he or she decides that it is in the public interest for an inquiry to be held into the circumstances of the death. 43.     Pursuant to section 9 of the 2016 Act, where it is decided that an inquiry is not to be held into the death of a person, the Lord Advocate must give reasons in writing if requested to do so by the deceased person’s spouse or civil partner, cohabitee or nearest known relative. 44.     Section 11 provides that the following persons may participate in any inquiry proceedings in relation to the death of a person: the deceased person’s spouse or civil partner, cohabitee, nearest known relative, or any other person who the Sheriff is satisfied has an interest in the inquiry. The Civil Procedure Rules (“CPR”) 45.     CPR 52.30 provides that the Court of Appeal will not reopen a final determination of any appeal unless it is necessary to do so in order to avoid real injustice; the circumstances are exceptional and make it appropriate to reopen the appeal; and there is no alternative effective remedy. COMPLAINTS 46.     Invoking Article 3 of the Convention, the applicant complains that the respondent Government is in breach of its procedural obligation to carry out an effective investigation into the incident of 26 June 2020. QUESTIONS TO THE PARTIES 1.     Has the applicant, having brought proceedings before the Courts of England and Wales, exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention? Would a request to reopen the final appeal in those proceedings (CPR 52.30) have afforded the applicant an effective remedy? Alternatively, would the applicant have been able to challenge in the courts of either England and Wales or Scotland any delay and/or substantive decision of the Scottish Fatalities Investigation Unit by reference to section   7(1) of the Human Rights Act 1998? For the purposes of section 7(1), would he be the victim of any allegedly unlawful actions?   2.     Did the stabbing of the applicant on 26 June 2020 trigger the State’s obligation to conduct an Article 3 compliant investigation? If so, was it necessary for the investigation to examine the wider circumstances in which the incident took place?   3.     On the facts of the case, has there been a breach of the procedural limb of Article 3 of the Convention?