At a time when the government’s Bill of Rights Bill seeks to weaken the protections offered by the positive obligations in the European Convention on Human Rights (‘ECHR’), a recent judgment in the UK provides a helpful overview of the scope and nature of such positive rights.

In the case of R (MG) v SSHD [2022] EWHC 1847 (Admin), Mr Justice Johnson found no breach of the positive obligations in Article 3 of the ECHR where asylum seekers accommodated under section 95 of the Immigration and Asylum Act 1999 in a hotel in Glasgow were subjected to a violent attack by one of the residents, Mr Badreddin Abadlla Adam. This was a major incident and led to the city being shut-down.

The claimant, ‘MG’, sought an order requiring the Home Secretary to initiate an independent investigation into the violent incident on 25 June 2020 in which he and 5 others (including 2 residents, a police officer and 2 hotel staff members) were stabbed by Mr Adam, who was subsequently shot dead by police.

There have been growing concerns about the safety and welfare of asylum seekers accommodated in hotels, hostels and other institutional facilities across the UK, with an escalating number of fatalities reported, including in Scotland.

Legal background

Article 3 of the ECHR contains the right not to be subject to torture, inhuman or degrading treatment. It places negative obligations on states (not to subject persons to mistreatment contrary to Article 3) and positive obligations (requiring states to take reasonable steps to avoid the risk of breaches and to investigate properly when such breaches occur.

The Court considered 3 categories of positive obligation (as discussed in the judgment at §§ 6-8):

  1. The ‘systems duty’: this is the requirement on states to provide the high-level protection of an effective legal framework that punishes and deters mistreatment contrary to Article 3, plus a ‘lower level’ duty to take administrative and regulatory measures, (such as ensuring proper recruitment and training of personnel) to protect individuals from the risk of serious harm;
  2. The ‘operational duty’: this bites if authorities are aware or should be aware of a ‘real and immediate’ risk of breach of Article 3. If so, they must take reasonable steps within their power to avoid the risk where the operational duty applies;
  3. The ‘investigative duty’: applicable where Article 3 is arguably breached, this duty requires that the full facts of the matter should be exposed via a thorough, effective and timely investigation to ensure accountability for any violations.
Photo by Erkan Utu

The judgment

Johnson J. held that SSHD hadn’t breached any of these three duties.

No ‘lower level’ systems duty was owed to asylum seekers who were accommodated in hotels under asylum support powers in section 95 of the 1999 Act. That was because they were not doing dangerous activity nor were they under the SSHD’s exclusive control. No wider welfare duty was owed to such residents, who had full capacity and were able to be responsible for their own health and welfare (§51-58).

The SSHD hadn’t breached the operational duty as the claimant had not shown that the authorities failed to take reasonable steps in response to a ‘real and immediate’ risk of violence (§66-69). Although Mr Adam had contacted Migrant Help (a Home Office partner organisation) some 72 times, without the benefit of hindsight, Mr Adam’s conduct did not demonstrate any ‘particular level of risk‘.

Concerns about Mr Adam’s conduct and mental health were reported adequately by staff working for the accommodation provider the day before the attack. Once the attack took place, hotel staff called the police who arrived within minutes.

MG’s claim for breach of the investigative duty couldn’t succeed as it relied on the his other claims under the systems and/or operational duties. In any event, the Judge held that an ongoing investigation by the Scottish Fatalities Investigation Unit (‘SFIU’) was an appropriate means of investigating the incident in a way that was compliant with Article 3 (§§ 75-76).


An important case on the scope and application of the positive dutires in Article 3, R (MG) demonstrates some of the difficulties that claimants face in establishing violations of these rights, even after a major traumatic incident.

There’s been some criticism from the Scottish public law bar that this judgment is an ‘object lesson‘ in Anglocentrism, given that the events took place in Scotland and there are available alternative remedies against alternative defendants under Scots law that do not appear to have been considered.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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