R (Gordon Binomugisha) v Southwark London Borough Council
| Jurisdiction | England & Wales |
| Judge | Andrew Nicol QC: |
| Judgment Date | 18 September 2006 |
| Neutral Citation | [2006] EWHC 2254 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1815/2006 |
| Date | 18 September 2006 |
[2006] EWHC 2254 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Nicol QC, sitting as a Deputy Judge of the High Court
Case No: CO/1815/2006
Martin Westgate (instructed by Ole Hansen and Partners, solicitors) for thethe Claimant
Hilton Harrop-Griffiths (instructed by Southwark Legal Services) for the Defendant
The principal issue in this case is whether the London Borough of Southwark has erred in law in its decision to cease providing support under Children Act 1989 s.23C or s.24A to Gordon Binomugisha, the Claimant. There are also issues as to whether Southwark is obliged to continue to provide the Claimant with a personal adviser and a 'pathway plan' also pursuant to the Children Act.
The facts
The Claimant is from Uganda. He was born on 6 th December 1986. At one time this was disputed by the Home Office, but an Immigration Adjudicator has found this date to be correct. It means that he is now 19. The Adjudicator also accepted the essential facts of the Claimant's account of his life in Uganda. His mother died many years ago. His father owned a construction firm and dealt in medical drugs. The Claimant was at a boarding school in Uganda, but in April 2002 he and his father were together. They were pounced on by soldiers. The Claimant was shot in the leg while attempting to run away and his father was also shot. The Claimant met a friend of his father's who helped both him and his father (who was badly bleeding from gunshot wounds) to get to a hospital. The Claimant recovered, but his father died a few days later.
The friend of the Claimant's father then realised the father's estate. He told the Claimant that he would not be safe in Uganda (he suspected that the Claimant's father had been selling medical supplies to the rebel group, the Lord's Resistance Army) and the two of them travelled to England. The Claimant and his father's friend arrived here on 1 st October 2002. The Claimant apparently entered on a false passport and so is an illegal entrant for the purposes of the Immigration Act 1971. He would then have been 15. The Claimant had expected to go to school in the UK, but nothing happened. In March 2003, his father's friend gave him £200 and then disappeared. He spent a few months with some Ugandans whom he had met at a Christmas party. He did odd jobs to support himself, but otherwise was dependent on the support of his friends. In October 2003 he was stopped by the police at Peckham Station. He then claimed asylum.
In November 2003, the Claimant was referred to Southwark by the Refugee Council as a child in need. He was assessed and from about 25 th November 2003, he was treated by Southwark as a child who was to be accommodated under s.20 of Children Act 1989.
On 9 th December 2003, his asylum claim was refused by the Home Office. His appeals based on the Refugee Convention and Articles 3 and 8 of the European Convention on Human Rights were dismissed by the Adjudicator on 2 nd March 2004. The Refugee Convention and Article 3 claims failed because there was no real risk that the Claimant would be subjected to persecution or other ill-treatment by the Lord's Resistance Army or from the authorities.
The Article 8 claim was based on the disruption which the Claimant's private and family life would suffer if he was removed from the UK. The Adjudicator said that this claim was 'more problematical' and continued,
'Such family life as [the Claimant] may have in the UK is sparse and only recently discovered. It has not featured in his life to any significant extent. He seems to have no relatives in Uganda (but may have a brother who would receive him in Canada). His family and private life in the UK would clearly be interfered with by removal and would not be replaced by any private life in Uganda. I find on balance that he has family and private life in the UK and that article 8 is engaged. The question is whether the Respondent has satisfied the burden imposed on him by article 8.2.'
The Adjudicator then directed himself in accordance with the Court of Appeal's decision in R (Razgar) v Secretary of State for the Home Department [ 2003] EWCA Civ 840 (the House of Lords had not at this stage given its judgment) and Mahmood v Secretary of State for the Home Department [2001] INLR 1 CA. He concluded
'The stark reality is that by his own account the Appellant has not much private and family life anywhere. He is going to have to begin again wherever he is. He has made a start while in the UK but it is at such an early stage that if he had to discard that small beginning and start again in his own country it would not be such an upheaval as to be disproportionate to the fact that he has no business to be here at all. The Respondent would be perfectly entitled to conclude that the wider interests of the UK outweighed the narrower interests of the Appellant. On the facts as a whole, while I have a good deal of sympathy for the Appellant, I am satisfied on balance of probabilities that the Respondent's decision to remove him is well within the range of reasonable responses to his unlawful presence in the UK and is justified under article 8.2'
The Adjudicator had no jurisdiction to hear an appeal against the further decision of the Home Office to refuse limited leave to enter (presumably until the Claimant was 18), but he anticipated that in line with its general policy, no removal would be attempted until he was 18 or satisfactory arrangements could be made for his removal to Uganda or Canada (where, as the Adjudicator had said, the Claimant had a brother). On 12 th June 2004 the Immigration Appeal Tribunal refused permission to appeal.
Southwark continued to provide the Claimant with accommodation and support. Prior to the Claimant's 18 th birthday, it asked the Home Office what its plans were. On the 8 th November 2004 it was told that at present no action against the Claimant's application would be taken.
The Claimant was aware that his support would be in jeopardy after he became 18 (in December 2004). The Defendant had concerns about his mental state in October 2004 and referred him for counselling by a social worker in November 2004. On 21 st November 2004, his general practitioner, Dr. Lyell, referred him to the Consultant psychiatrist at Lewisham Children and Young People Services because of low mood, lack of appetite, significant weight loss, poor sleep, lack of motivation and enjoyment and withdrawal from all family and friends. All of this was associated with the threat of withdrawal of the Defendant's support.
The Claimant applied for support from the National Asylum Support Service (NASS) but was refused on 8 th December 2004 because he was no longer an asylum seeker.
Southwark continued to provide support for the Claimant through the first half of 2005. In the meantime, another application for leave to remain which was made on 20 th November 2004 was refused by the Home Office on 11 th February 2005. There is no information as to the basis for this application (except that it was on human rights grounds) or its refusal.
On 17 th March 2005, the GP, Dr Lyell wrote to Harriet Harman (who is the Claimant's local MP). He said 'I feel [the Claimant's] mental health will be seriously affected if the deportation order is not revoked and I cannot account for his physical health if he is returned home.' Dr Lyell enclosed the letter of referral that I have mentioned above and said that the Claimant had not in fact been seen by the consultant because he had in the meantime become 18 and adult social services set a higher threshold for taking patients on and, as a result, the Claimant had been left without psychiatric support apart from what Dr Lyell could provide. It seems that Ms Harman forwarded this letter to the Home Office and, on 29 th March 2005, the Claimant's then immigration solicitors, Makanda and Co, made a further application for leave to remain, arguing that his removal would be contrary to Article 8 of the ECHR. No decision had been taken on this application at the time of the hearing of the present proceedings for judicial review and it remains outstanding.
On 5 th May 2005 the Claimant was told by the duty social worker that he would not be receiving any further support until his immigration situation had been resolved. There is a dispute on the evidence as to what then happened between May and August 2005. According to Southwark, there was contact on 6 th May, and further efforts to contact him by telephone messages and home visits (none of which were successful). Further, Southwark says the accommodation continued to be available to him. According to the Claimant, no further support was provided by Southwark from the beginning of May until mid-August 2005 and he was unaware of any efforts by Southwark to contact him. It is not necessary for the purpose of these proceedings to resolve this dispute. It does appear to be the case that during this time, the Claimant received some help from a girl-friend, but this relationship has since ended. He also received some food, clothes and very modest sums of money from an NGO now known as the African Social and Health Integration Ltd.
On 10 th August 2005 the Claimant was admitted to Guy's and St. Thomas' Hospital. According to a friend he had started throwing things out of the house and was screaming and shouting. The police were called and he was taken to the hospital. According to the Claimant he says...
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