MK and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Gross,Sir Anthony May |
| Judgment Date | 14 April 2011 |
| Neutral Citation | [2011] EWCA Civ 671 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/1435 |
| Date | 14 April 2011 |
[2011] EWCA Civ 671
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
(MR M SUPPERSTONE)
Royal Courts of Justice
Strand, London, WC2A 2LL
PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Anthony May)
Lord Justice Sullivan
Lord Justice Gross
Case No: C4/2010/1435
The Queen on the Application of
Mr M Westgate QC and Mr R Khubber (instructed by Ben Hoare Bell) appeared on behalf of the Appellant.
Mr David Blundell and Mr Ben Lask (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal against the order dated 20 April 2010 of Mr Michael Supperstone QC, as he then was, sitting as a deputy High Court judge, dismissing the first and second appellant's claim for judicial review of the respondent's decision contained in a decision letter dated 16 November 2009 to provide the first appellant with support in the form of accommodation with vouchers for the purchase of food and essential toiletries under section 4 of the Immigration and Asylum Act 1999 ("the 1999 Act"). The first appellant declined the offer, because it would have required him to live separately from his partner, the second appellant, and their baby daughter, K. The substance of the appellant's complaint is that the first appellant should have been provided with support under section 4 in such a manner as would have enabled him to continue to live with the second appellant and their daughter. From the appellant's point of view, this appeal is academic. Indeed it had become academic shortly before the hearing of the judicial review claim on 14 and 15 April 2010, because the first appellant had been told on 13 April 2010 that he would be granted three years' discretionary leave to remain in the United Kingdom, so that when that leave was granted he would become ineligible for section 4 support.
The parties agreed, however, that the hearing of the judicial review claim should proceed, because of what was said to be the importance of the issues raised in the claim for others who sought support under section 4. Since the appeal is academic from the appellant's point of view, I for my part would confine our consideration of the grounds of appeal to those issues which are, potentially at least, of wider application. Insofar as the challenge to the decision dated 16 November 2009 is based on the particular circumstances of these appellants, or the particular features of the decision-making process in their case, it would not be appropriate in my view for this court to consider those matters, save to the extent that it is necessary to do so in order to address any issue of wider importance.
The factual background is set out in some detail in the judgment below: [2010] EWHC 1002 (Admin). For present purposes, the following summary will suffice. The first appellant is a national of Iran. He arrived in the United Kingdom and claimed asylum in August 2007. His claim was refused. He appealed. His appeal was dismissed, and his appeal rights became exhausted on 18 April 2008. He claims to have met the second appellant, who is a British citizen, in August 2008. They started living together, and in February 2009 they moved to an address in Gateshead. In November 2008 further submissions, which were said to amount to a fresh claim for asylum and/or humanitarian protection, were submitted to the respondent.
The first appellant applied for support under section 4 of the 1999 Act on 2 October 2009. His claim was initially refused. He appealed to the First-Tier Tribunal (Asylum Support). In his Notice of Appeal dated 20 October 2010, having referred to his partner, the second appellant, and the fact that she was at that time expecting their child, he said:
"I am prepared because of our poverty to live in a room separate from her with vouchers, but obviously I would prefer to live with her and have vouchers only."
In a letter written in support of his appeal, the North of England Refugee Service said:
"The above has been refused section 4 support. Although he is living with his partner, who is nine months pregnant and cannot afford to support him, he would prefer vouchers only and to live in his current accommodation with her, but section 4 seems reluctant to issue vouchers only. He is prepared to live separately but in the same area."
On 3 November 2009, the first appellant's appeal was allowed by the First Tier Tribunal, by which time K had been born on 23 October 2009. The respondent, in a decision letter dated 16 November 2009, made it clear that the section 4 accommodation was being offered to the first appellant on a "no choice" basis, and that one of the conditions for continued support under section 4 was that:
"You must reside at the accommodation provided to you, and must not be absent without the permission of the Secretary of State from the accommodation for more than seven consecutive days and nights, or for more of a total of 14 days and nights in a six-month period."
In a letter before claim dated 23 November 2010, it was said by solicitors acting on behalf of the first appellant that he was unable to accept the offer of support because it would require him to live separately from the second appellant and their daughter. Judicial review proceedings were commenced on 2 December 2009. On 13 January 2010, the further representations made in November 2008 were rejected by the respondent, so the first appellant ceased to be eligible for section 4 support. The following day, the appellants moved to their current address in Gateshead. On 12 March 2010, further representations were made by the first appellant's new immigration solicitors, which were said to amount to yet a further fresh claim. Once again, the first appellant became eligible for section 4 support. That remained the position until he was granted discretionary leave in April 2010.
Against that background, I turn to what are said to be the issues in this appeal. In his skeleton argument on behalf of the appellants, Mr Westgate QC submitted that the appeal raised three issues:
"(a) What is the meaning of the term 'provide or arrange for the provision of facilities for the accommodation of a person under section 4 of the Immigration and Asylum Act 1999?'
(b) Did the Defendant fetter her discretion and/or act rationally and/or without due regard to s.55 of the Borders, Citizenship and Immigration Act 2009, by only considering the provision of accommodation pursuant to the UKBA 'target contract' and not supporting the Claimants' desire to live as a family in one's property?
(c) Was the Defendant's decision to provide separate accommodation for the 1 st claimant so that he had to live apart from his wife and child if he took it up incompatible with the Claimants' Convention rights (and those of their child) under Articles 8 and/or 14 of ECHR?"
The answer to the first of those issues is, at least potentially, of some wider significance. If the respondent's answer to the second issue had been that she had no discretion to "provide or arrange for the provision of facilities for the accommodation" of a person under section 4 otherwise than pursuant to UKBA's target contract, that would also have raised an issue of wider importance. However, that is not the respondent's answer to the second issue. As the judge said in paragraph 36 of his judgment, following the institution of judicial review proceedings UKBA did consider whether it would be appropriate for the respondent to enter into contractual arrangements with the second appellant's existing landlord, having regard to the appellant's particular circumstances. UKBA concluded that it would not be appropriate.
The challenge to this aspect of the decision-making process therefore turns very much on the particular circumstances of this case. Whether or not the explanations given in the witness statements of Miss Bass and Mr Cairns on behalf of the respondent show that they gave, to use the words in the appellant's skeleton argument, "no proper consideration to the option of funding the existing accommodation", is no longer of any interest to these appellants, and it does not raise any wider issue. I should note that it is said on behalf of the appellants that the respondent did not give proper consideration to her duty under section 55 of the 1999 Act to the need to safeguard and promote the welfare of K, bearing in mind the recent judgment of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 2 WLR 148. But whether or not that was so on the evidence in this case, there is no need for this court to decide what is now an academic issue so far as the precise terms of Miss Bass's witness statement are concerned, simply in order to make the point that, when exercising her power under section 4, the respondent must comply with her statutory obligations under section 55 insofar as those obligations have been interpreted by the Supreme Court in ZH.
As far as the third issue is concerned, it seems to me that the answer to the question whether there has been an unjustified interference with the right to respect for family life under Article 8, because one member of a family has been provided with separate accommodation, will be fact-sensitive in each particular case. All relevant factors will have to be considered, and those factors may include, for example, how suitable is the existing accommodation? How far away is the separate accommodation? What is the degree of interference with family life in practical terms? Is it, for example,...
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