R (AW) v Croydon London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lloyd Jones |
| Judgment Date | 16 December 2005 |
| Neutral Citation | [2005] EWHC 2950 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2016/2005, CO/6016/2004 |
| Date | 16 December 2005 |
[2005] EWHC 2950 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE LLOYD JONES
Case No: CO/2016/2005, CO/6016/2004
CO/3433/2004, CO/3110/2005
Mr Stephen Knafler (instructed by Pierce Glyn) for the First Claimant
Mr Stephen Knafler (instructed by Hackney Law Centre) for the Second, Third & Fourth Claimants
Ms Jennifer Richards (instructed by London Borough of Croydon) for the First Defendant
Mr Jonathan Cowen (instructed by London Borough of Hackney) for the Second Defendant
Miss Elisabeth Laing (instructed by The Treasury Solicitor) for the Interested Party
Crown Copyright ©
1. There are before the Court four applications for judicial review challenging decisions of local authorities in relation to the support of failed asylum-seekers.
2. AW claims to have arrived in the United Kingdom on 23 June 1998. She applied for asylum about a month after entering the United Kingdom. She is therefore in the United Kingdom in breach of the immigration laws within section 11 of the 2002 Act. Her claim for asylum was refused by the Secretary of State by letter dated 20 July 2001. The Secretary of State was not satisfied that she was Somali. On 20 th November 2003 the Adjudicator dismissed her appeal disbelieving that she was from Somalia. After her appeals had been rejected AW made further representations to be treated as an asylum-seeker on 30 September 2004, 9 November 2004 and 4 February 2005. The Secretary of State has not yet made a decision on those representations. Her application for support under section 4 of the Immigration and Asylum Act 1999 Act (“the 1999 Act”) was rejected by the Secretary of State on the ground that support was not necessary to avoid a breach of her human rights, because she was free to leave the United Kingdom or take steps to leave the United Kingdom. AW applied to the London Borough of Croydon (“Croydon”) for assistance, in particular under section 21, National Assistance Act 1948 (“the 1948 Act”). Croydon maintains that AW is not eligible for support under the 1948 Act and that it therefore has no power to provide support.
3. D claims to have entered the United Kingdom on a lorry and to have claimed asylum immediately. Her immigration status is unclear. At an early stage in these proceedings it was conceded that she had failed to claim asylum on arrival and was not granted temporary admission before entry to the United Kingdom. However, it now appears likely, on the basis of the submissions on behalf of the Secretary of State, that she was granted temporary admission and therefore is not in the United Kingdom in breach of the immigration laws within section 11, Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). Although her asylum application initially succeeded, it was overturned on appeal on 19 th July 2002. She made further representations on 19 April 2005. These further representations were rejected by the Secretary of State on 18 October 2005. She has not been served with any removal directions with which she has failed to comply. On 18 th June 2005 D applied to the London Borough of Hackney (“Hackney”) for an assessment of her need for residential accommodation for which she claims to be eligible under section 21 of the 1948 Act. Hackney maintains that she is not eligible for such assistance.
4. A did not make a claim for asylum until several days after his arrival in the United Kingdom. He is therefore in the United Kingdom in breach of the immigration laws within section 11 of the 2002 Act. His application for asylum failed. He made further representations in support of his claim for asylum on 17 September 2003, 27 November 2003, 20 January 2004, 7 May 2004 and 6 September 200The Secretary of State has not yet made a decision on those representations. A applied to Hackney for accommodation and support pursuant to section 21 of the 1948 Act. Hackney maintains that A is not eligible for such assistance.
5. Y claimed asylum two days after arriving in the United Kingdom. He is therefore in the United Kingdom in breach of the immigration laws within section 11 of the 2002 Act. His claim for asylum was refused. The number of enforced returns to Eritrea in 2005 has been limited due to practical obstacles. However voluntary return is possible if a person can obtain documents. The Secretary of State accepts that if Y were able to show that he is taking steps to leave the United Kingdom, for example by making an application for documents, or by applying for an Eritrean passport, he would be eligible for section 4 support until he were actually able to return. Y made further representations in support of his claim for asylum on 8 July 200By letter dated 6 October 2005 the Secretary of State rejected those representations on the grounds that they do not amount to a fresh claim. Y has been assessed as in need of care and attention within section 21 of the 1948 Act. However, Hackney has refused to assist Y pursuant to section 21of the 1948 Act on the ground that he is not eligible.
6. By a consent order made on 12 th October 2005 these four applications for judicial review were listed for hearing “confined to the issue of whether the Claimant in each case is ineligible for support from the Defendant by reason of the provisions of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) and any related issues in respect of Convention rights”.
7. At the hearing before me it was agreed that I should deliver a preliminary ruling on the following three issues.
(1) Is a failed asylum-seeker who is in the United Kingdom in breach of the immigration laws within the meaning of section 11, Nationality, Immigration and Asylum Act 2002, excluded by paragraphs 1 and 7 of Schedule 3 of that Act from support or assistance?
(2) If in the case of a failed asylum-seeker who satisfies the criteria of section 21(1) and (1A), National Assistance Act 1948 the provision of support is necessary for the purpose of avoiding a breach of his Convention rights within the meaning of paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, is that provision to be made by a local authority pursuant to section 21 National Assistance Act 1948 or by the Secretary of State for the Home Department pursuant to section 4, Immigration and Asylum Act 1999?
(3) If the Article 3 threshold would otherwise be met, does the making of a purported fresh claim on UN Convention on Refugees/Article 3 ECHR grounds by a failed asylum-seeker always make it necessary for support to be provided in order to avoid a breach of Convention rights, pending a decision by the Secretary of State on the representations?
Issue 1
Is a failed asylum-seeker who is in the United Kingdom in breach of the immigration laws within the meaning of section 11, Nationality, Immigration and Asylum Act 2002, excluded by paragraphs 1 and 7 of Schedule 3 to that statute from support or assistance?
8. Schedule 3 to the 2002 Act, which is given effect by section 54, provides:-
“1. (1) A person to whom this paragraph applies shall not be eligible for support or assistance under-
(a) section 21 or 29 of the National Assistance Act 1948 (c. 29) (local authority: accommodation and welfare),
…
(l) a provision of the Immigration and Asylum Act 1999 (c. 33), or
(m) a provision of this Act.”
9. Paragraphs 4–7A of Schedule 3 set out the persons to whom paragraph 1 applies i.e. the classes of person who are ineligible.
“4. (1) Paragraph 1 applies to a person if he-
(a) has refugee status abroad, or
(b) is the dependant of a person who is in the United Kingdom and who has refugee status abroad.
(2) For the purposes of this paragraph a person has refugee status abroad if-
(a) he does not have the nationality of an EEA State, and
(b) the government of an EEA State other than the United Kingdom has determined that he is entitled to protection as a refugee under the Refugee Convention.
5. Paragraph 1 applies to a person if he-
(a) has the nationality of an EEA State other than the United Kingdom, or
(b) is the dependant of a person who has the nationality of an EEA State other than the United Kingdom
6. (1) Paragraph 1 applies to a person if-
(a) he was (but is no longer) an asylum-seeker, and
(b) he fails to cooperate with removal directions issued in respect of him.
(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).
7. Paragraph 1 applies to a person if-
(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 11, and
(b) he is not an asylum-seeker.
7A. Paragraph 1 applies to a person if—
(a) he—
(i) is treated as an asylum-seeker for the purposes of Part VI of the Immigration and Asylum Act 1999 (c 33) (support) by virtue only of section 94(3A) (failed asylum-seeker with dependent child), or
(ii) is treated as an asylum-seeker for the purposes of Part 2 of this Act by virtue only of section 18(2),
(b) the Secretary of State has certified that in his opinion the person has failed without reasonable excuse to take reasonable steps—
(i) to leave the United Kingdom voluntarily, or
(ii) to place himself in a position in which he is able to leave the United Kingdom voluntarily,
(c) the person has received a copy of...
To continue reading
Request your trial
-
R (KA) v Essex County Council [QBD]
...in Clue, to which I have already referred. I will therefore only make brief reference to two of the earlier decisions. 34 In R (oao AW) v. London Borough of Croydon [2005] 9 CCLR 2540 Lloyd-Jones J, as he then was, was dealing with asylum seekers who had made further representations to the ......
-
R (Clue) v Birmingham City Council
...the effect of requiring the person to leave the UK thereby forfeiting his claim. This is the approach adopted by Lloyd-Jones J in R (AW, DAY) v Croydon LBC [2005] EWHC 2950 (Admin), (2006) 10 CCLR at [74] to [76] and Andrew Nicol QC (sitting as a deputy high court judge) in R (PB) v Haringe......
-
R Wishyar Mustafa v Kent County Council
...As far as I am aware, this decision has never been questioned by any court. It was followed in R (AW) v London Borough of Croydon [2005] EWHC 2950 (Admin) at [63]–[64]. Moreover Parliament has amended section 94 of IAA and Schedule 3 of NIAA on a number of occasions since the decisions in ......
-
R (Gordon Binomugisha) v Southwark London Borough Council
...who can reasonably be expected to look to other countries for their livelihood.' 47 In R (AW) v Croydon; R (A,D & Y) v Hackney [2005] EWHC 2950 (Admin) this Court gave judgment in relation to certain preliminary issues that had been raised by four applications for judicial review. Relevant ......