R (Clue) v Birmingham City Council

Lord Justice Scott Baker:

The issue for the court is whether it should proceed to hear an appeal that has become academic; more particularly, since there is no longer sufficient time to hear it today, whether it should be adjourned for that purpose.

The circumstances are these: the respondent to the appeal, who was the claimant in the court below, was until last week unlawfully in the United Kingdom. In October 2007 she made a claim for indefinite leave to remain for her and her children under the Secretary of State's seven year child concession DP5/96 which was applicable to her eldest child, S. The appellants, Birmingham City Council (“Birmingham”), are obliged to support non-asylum seeking adults unlawfully in the UK along with their children and are unable to recover the cost of doing so from any other source. They carried out an assessment which concluded that Birmingham could discharge its ECHR obligations by providing payment for the respondent and her children to travel to Jamaica and resettle there rather than by providing accommodation in the United Kingdom for an indeterminate period until the Government through the United Kingdom Borders Agency resolved the question of whether they should be allowed to remain under the seven year concession.

Charles J held that the appellants had acted unlawfully, in short, by failing to have regard to the fact that they should have taken into account the seven year concession, the reasons for it and the fact that, save in exceptional circumstances, it would operate in the respondents' favour. The respondents appealed against Charles J's decision. In granting permission to appeal Hughes LJ said:

“Although at one level the only decision is that the council must take into account any purely factual probability that indefinite leave to remain will be granted, the judgment arguably may nevertheless raise questions of importance concerning the ambit of Article 8 rights and the relationship between immigration policy and Schedule 3 to the Nationality Immigration and Asylum Act 2002.”

He directed that notice of appeal should be given by the appellant council to the Secretary of State for the Home Office, together with the court's invitation to consider whether she wishes to make representations either in writing or orally and whether in connection with the facts of this case or generally. It appears that at no point has the Secretary of State been joined as an interested party to the proceedings. It is the court's view that he (it is now a he who is the Secretary of State) should be an interested party and directs that he be joined as such unless he indicates a desire to the contrary within the next seven days.

The appeal has been overtaken by events because last week the respondent was given indefinite leave to remain. Thus the appeal is now academic. It is most unfortunate that the United Kingdom Border's Agency has taken so long to resolve the claim for indefinite leave to remain with the consequent burden on the local authority and the cost of these proceedings. It seems unlikely to be a coincidence that the decision was made just before the appeal was due to be heard, particularly as the parties had previously been told that the application could not be expedited.

The Secretary of State has not sought to make any oral or written submissions, although some factual material was lodged with the court late last Friday. He has been asked whether, in the event that the court decides to proceed with the appeal on an academic basis, he wishes to make any submissions if necessary at an adjourned hearing, but he says he does not albeit for my part I am not at all clear that the Treasury Solicitor fully appreciates (1) the wishes of the court to have his assistance, and (2) the implications of not doing so.

Both the appellant and the respondent wish the appeal to go ahead notwithstanding that it is now academic. It is said that there are other similar cases in the pipeline both under the concession and post concession. The concession was withdrawn at the end of last year because it was concluded that it had been overtaken by the Human Rights Act. We have no concrete information about the number of other cases or the point that they have reached. It does not appear that there are any cases currently under the process of litigation in the courts.

Now the underlying problem seems to me to be that two different bodies are making assessments for different purposes at different times, and in respect of each of them the Human Rights Act bites albeit different considerations may apply in the balancing proportionality exercise. Each case that falls to be considered in the future will involve a different family, and it seems to me that at least to some extent these cases will be fact specific, but as has become apparent there are real difficulties with regard to the underlying principles. The present case has not been designated as a test case and one option would be to gather a number of cases and list them together, if possible on an expedited basis with, I certainly would hope, assistance from the Secretary of State on the underlying problems as identified by Hughes LJ in granting leave in this case. However, during the course of submissions this morning another option emerged which was for the parties to identify a number of issues of principle that arise in this case on specific factual scenarios, and for the court to rule on them in the present proceedings along with the correctness or otherwise of Charles J's decision prior to indefinite leave to remain having been granted in the present case.

This course has the attraction of not wasting the very considerable expenditure and effort by counsel that has gone into the present proceedings. Whatever course is adopted, I do not think it is satisfactory for the Secretary of State to walk away from a problem caused by long delay in dealing with applications for indefinite leave to remain by Miss Clue and others. The problem is that delay by the Secretary of State imposes a financial burden on local authorities who have to provide support for the families in question in the meantime. It is unfortunately a feature of life in the present age that if A's action or non-action affects B's budget but not his own, the problem is perceived to be B's rather than A's. I have no doubt that the court would be greatly assisted in resolving the issues that this case is likely to raise by hearing submissions from the Secretary of State.

Prior to the midday adjournment the parties were invited to draft a number of questions that the court should then direct should be considered at the adjourned hearing. The court has considered those questions and has come to the conclusion that the real underlying issues in the case can be encapsulated in two questions. These were put to counsel and essentially are, I think, now agreed by them. The questions are: in the scenario that a person A is unlawfully present in the United Kingdom within paragraph 7 of Schedule 3 of the 2002 Act, and is destitute and would otherwise be eligible for services of a kind listed in paragraph 1 of Schedule 3, and has made an application to the Secretary of State for leave to remain that expressly or impliedly raises Convention grounds under Articles 3 or 8 or some other ground, and a local authority is considering whether it is necessary to provide support or assistance by reference to paragraph 3 of Schedule 3, (1) Does Schedule 3 of the 2002 Act read with Section 6 of the Human Rights Act require or permit the local authority to reach decisions by taking into account either relevant policy of the Secretary of State in relation to leave to remain or the evaluation of the Secretary of State under the Convention? (2) Does rational and/or proportionate decision-making require the Secretary of State and the local authority to reach Convention assessments in a coordinated manner and at the same time? In particular, does it require the Secretary of State to expedite his consideration of applications for leave to remain (in particular in cases involving children).

The other questions raised in draft by counsel are not we think appropriate to pose as formulated questions, but they are all matters which the parties may or may not wish to raise in the form of argument before the court. We should make it clear that the court hearing the adjourned appeal is not of course bound by the questions as approved by this court today, but they are we think a helpful focal point for the adjourned appeal. It will of course be up to the court hearing the appeal to decide what issues they wish to hear argument about. We have come to the conclusion that on balance the arguments favour adjourning the present proceedings rather than requiring these issues to be resolved in other proceedings in the future. We have helpfully been referred to two authorities. The first is R v Secretary of State ex parte Salem [1999] 2 WLR 483, where Lord Slynn had this to say about dealing...