R (Grant) v Lambeth London Borough Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Kennedy,Sir Christopher Staughton
Judgment Date16 December 2004
Neutral Citation[2004] EWCA Civ 1711
Date16 December 2004
Docket NumberCase No: C1/2004/1410

[2004] EWCA Civ 1711

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

MR JUSTICE MITTING

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Kennedy

Lord Justicechadwick and

Sir Christopher Staughton

Case No: C1/2004/1410

Between:
Lb of Lambeth
Appellant
and
Annette Grant
Respondent

Charles Béar QC (instructed by Sternberg, Reed, Taylor & Gill, IG11 8DN) for the London Borough of Lambeth

Stephen Knafler (instructed by Steel & Shamash, SE1 7AA) for Annette Grant

Lord Justice Kennedy
1

This is an appeal by the London Borough of Lambeth (Lambeth) from a decision of Mitting J, sitting in the Administrative Court List, who on 17 th June 2004 gave judgment for the claimant and made certain declarations in her favour.

Background.

2

The claimant, who was born on 16 th March 1969, is a Jamaican. In November 1992, as Annette Murdock, she entered the United Kingdom with a visitor's visa which permitted her to remain here for 6 months. In 1993 and 1994 she made applications for leave to remain which were refused.

3

In 1995 she married Earl Grant, a British national, and she then applied unsuccessfully for leave to remain on the basis of marriage. She had given birth to two children in Jamaica, and in 1997 the father of those children died in the United States. In 1998 those children, Damar Matthan (born 25 th January 1989) and Chantel Matthan (born 30 th May 1990), came to England to live with their mother. On 10 th November 2000 she gave birth to her third child, Therondo Grant, the son of Earl Grant, who acquired his father's British nationality. In July 2002 she separated from her husband, and in late 2002 she sought the assistance of Lambeth in relation to accommodation.

4

On 14 th January 2003 the claimant sought leave to remain on extra-statutory and compassionate grounds, and referred, apparently for the first time, to her children. We have reason to believe that application was refused on 15 th October 2004, but when the matter was heard before us the claimant had yet to receive formal notice of refusal.

5

Early in 2003 Lambeth agreed to provide the claimant and her children with temporary accommodation pending completion of an assessment of the children's needs under the Children Act 1989. The author of the assessment concluded that it would be in the best interests of the claimant and her family for them to go to Jamaica. Lambeth then threatened to withdraw support, whereupon the claimant obtained permission to apply for judicial review. The substantive hearing was delayed because of the pending decision of this court in R (M) v Islington LB [2004] EWCA Civ 235 in which judgment was delivered on 2 nd April 2004, and the current position, as recorded by Mitting J, is that Lambeth is paying £19,000 per annum to accommodate the claimant and her three children in an hotel in London SW16. It is not entirely clear whether that figure includes £2,340 per annum which is paid by way of subsistence but for present purposes that does not matter. The children go to local schools, and the circumstances of the claimant and her children are significantly better than they would be if they were to go to Jamaica, but neither the claimant nor either of her two elder children have any right to be here. Her Jamaican passport, which is held by the Home Office, has expired. To renew it would cost money and take 8 to 10 weeks. She cannot afford air fares, and her solicitors were told by the Home Office that if she were to return to Jamaica her application for indefinite leave to remain would automatically lapse, and would have to be renewed from Jamaica.

6

Lambeth's position has always been that it has no long term obligation to accommodate and support the claimant and her children. The claimant asserts that it must do so until the Secretary of State determines her most recent application for indefinite leave to remain, and if he rejects it (or has rejected it) until he sets removal directions with which she does not co-operate.

The decision under challenge.

7

On 6 th April 2004, following the decision of this court in M, Lambeth advised the claimant's solicitors that its position was unchanged. It needed to conserve its resources for those most in need. It was prepared to pay the costs of moving the claimant and her children to Jamaica (including air fares, passport fees, etc) and to bear the costs of accommodation only until travel arrangements could be put in place. It was that decision of 6 th April 2004, as explained by Mark Rapley in his third witness statement dated 7 th April 2004, which was quashed in the court below. The judge then made the following declarations –

"(1) the Defendant is obliged to provide the claimant and her children with accommodation under the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 until whichever is the soonest of the following eventualities:

(a) the claimant and her children obtain funding enabling them to return to Jamaica and all the necessary travel and passport arrangements are in place, or would have been in place if the claimant had taken reasonable steps to that end

(b) the claimant and her children cease to need accommodation

(c) the Secretary of State for the Home Department makes removal directions and the claimant fails to comply with such removal directions

(2) section 2 of the Local Government Act 2000 does not empower the defendant to fund the cost of travel to Jamaica of the claimant and her children."

8

Before I turn to the judge's reasons for his decision it is necessary to look at the statutory background, and at the current legislation which the judge had to apply to this case.

The Statutory background.

9

In February 1996 the government attempted by secondary legislation to restrict access to state benefits by failed asylum-seekers and by asylum-seekers who did not claim asylum at once on arrival. In R v Secretary of State for Social Services ex parte JCWI [1997] 1 WLR 275 it was held in this court that the secondary legislation was ultra vires. Parliament then used schedule I to the Asylum and Immigration Act 1996 to enact in primary legislation the changes which had been attempted earlier in 1996, with the result that asylum-seekers adversely affected turned to local authorities for assistance. They invoked section 21(1) of the National Assistance Act 1948, as amended, which provided that a local authority -

"To such extent as the Secretary of State may direct, shall make arrangements for providing -

(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them ….."

The use of that statute in relation to destitute asylum-seekers was approved by this court in R v Westminster City Council ex parte M [1997] 1 CCLR 85. Then, in R v Wandsworth LBC ex parte O [2000] 1 WLR 2539, this court had to consider the plight of two Africans, both of whom were overstayers, and who had been denied assistance under section 21 by local authorities because they were in this country illegally. By then destitute asylum-seekers had been to some extent provided for in Part VI of the Immigration and Asylum Act 1999, and it had been held at first instance in R v Brent LBC ex parte D 1 CCLR 234 that in general illegal entrants and overstayers were not entitled to assistance under section 21 because they were relying on their own wrongdoing in choosing to remain in the United Kingdom. Section 116 of the 1999 Act had amended the 1948 Act by introducing section 21(1A) which applied to, amongst others, those here illegally, and provided that such a person -

"…may not be provided with residential accommodation under subsection (1) (a) if his need for care and attention has arisen solely -

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute."

In ex parte O this court applied a strict interpretation to the wording of section 21(1A). At 2548 G Simon Brown LJ said -

"The word 'solely' in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled."

In other words if the person claiming benefit could point to something in addition to destitution his claim could be entertained. At 2552H Simon Brown LJ said -

"Section 21(1) affords the very last possibility of relief, the final hope of keeping the needy off the streets. Not even illegality should to my mind bar an applicant who otherwise qualifies for support. For my part I would hold that the local authority has no business with the applicant's immigration status save only for the purpose of learning why the care and attention 'is not otherwise available to them' as section 21(1) requires….. It should be for the Home Office to decide (and ideally decide speedily) any claim for E.L.R. and to ensure that those unlawfully here are promptly removed, rather than for local authorities to, so to speak, starve immigrants out of the country by withholding last resort assistance from those who today will by definition be not merely destitute but for other reasons too in urgent need of care and assistance."

So the claims of some illegal overstayers were held entitled to consideration under section 21 under the 1948 Act.

10

In R(J) v Enfield LBC [2002] EWHC 432 (Admin) the applicant was from Ghana. She was HIV positive, and...

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