R (Grant) v Lambeth London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 17 June 2004 |
| Neutral Citation | [2004] EWHC 1524 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2738/2003 |
| Date | 17 June 2004 |
[2004] EWHC 1524 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Mitting
CO/2738/2003
MR STEPHEN KNAFLER (instructed by Steel and Shamash) appeared on behalf of the CLAIMANT
MR NIGEL GIFFIN QC (instructed by Sternberg Reed Taylor and Gill) appeared on behalf of the DEFENDANT
The claimant is 35. She was born in Jamaica of Jamaican parents. Her mother, now aged 57 or 58, still lives in Kingston, Jamaica. She has two children by a Jamaican father, Neville Matthan, who died in the United States in 1997: Damar Matthan, born on 25th January 1989, who is 15, and Chantel Matthan, born on 30th May 1990, who is 14.
The claimant came to the United Kingdom on her own in November 1992 on a six month visitors visa. The two children remained in Jamaica with her mother. She stayed with her friend and sponsor, Mr Shaw, for several months and then went to live with an aunt, Mrs McFarlane, at 89B Herne Hill.
From Home Office and local authority records, and from her evidence, the following history emerges. In 1993 she applied for leave to remain which was refused on 7th July 1993. In 1994 she applied for leave to remain to undertake a two year course as a student. That application was refused on 8th November 1994 and removal directions were made. The claimant appealed to an adjudicator, but did not appear at the hearing on 5th May 1995 and her appeal was dismissed.
Meanwhile she had met and, on 1st May 1995, married Earl Grant, a British national. On 5th May 1995, the same day as her appeal was dismissed, she applied for indefinite leave to remain on marriage grounds. She went to live at 9 Heron House, Herne Hill, of which her mother-in-law was the tenant, with her husband. They were evicted due to rent arrears in November 1995. Home Office officials attempted to visit her at 9 Heron House on 3rd February 1996, but, unsurprisingly, found the property empty and no trace of her. She and her husband had gone to stay with his sister at 35B Woodland, Upper Norwood, where they lived until 2000.
On 28th September 1997 a decision was made to reject her application for indefinite leave to remain and on 1st November 1997 notice of liability to deportation was sent to her. The address is not stated in the Home Office records, but it was presumably not 35B Woodland. The claimant disclaims all knowledge until much later of that decision and that notice, and there is no reason to doubt her disclaimer.
In July 1998 and December 1998 Chantel and Damar respectively came to the United Kingdom to live with her. There was some correspondence between a representative of hers and the Home Office in November 1998 which came to nothing. She made a second application for indefinite leave to remain on marriage grounds on 25th January 2000. There was no response from the Home Office until 15th January 2003, a response that was prompted by an enquiry from a Member of Parliament. Meanwhile, in 2000, the claimant, her husband and the two children went to live with Mrs McFarlane again at 89B Herne Hill.
Therondo Grant, her third child, was born on 10th November 2000. He is a British national as the son of a British national. No doubt is cast on the identity of his father, despite the unsatisfactory nature of the claimant's marriage to him. He was apparently an alcoholic and of little use to his family.
The claimant and her husband separated in July 2002 when he left her. Mrs McFarlane insisted that the claimant and her three children leave 89B Herne Hill. The claimant had been working, and apparently continued to work, illegally as a domestic worker and hairdresser. She was able to save £500 to pay a deposit to a friend, Mr Barton, and £100 a week for a subtenancy of his housing association property, 109A Gypsy Road, West Norwood. Mr Barton was in arrears with his rent. The housing association obtained a possession order and on 21st November 2002 the clamant and her three children were evicted. She contacted Lambeth Social Security Department who paid for bed and breakfast accommodation for her and the children until 27th November 2002, but refused to help thereafter. Then she lodged with Mrs McFarlane for a few days and then successively with two friends. By late January 2003 the second of the two friends was unable or unwilling to help further. She consulted solicitors. Judicial review proceedings were threatened and undertaken against Lambeth who agreed to provide temporary accommodation. An interim consent order was made on 31st January 2003, sealed on 5th February 2003, by which Lambeth agreed to continue to provide accommodation pending completion of an assessment of her children's needs under section 17 of the Children Act 1989.
Meanwhile, on 14th January 2003, the claimant applied again to the Home Office for indefinite leave to remain on extra statutory and compassionate grounds. They were that she had been in the United Kingdom for ten years, that her two eldest children had been in the United Kingdom then for four and a half and four years respectively and that her youngest child was a British national. This was the first time, apparently, that she had told the Home Office of the existence of any of the children.
On 15th January 2003, unaware of that application, a case worker in the Home Office recommended rejection of her earlier application for indefinite leave to remain on marriage grounds. On 30th January 2003 that recommendation was approved by a senior case worker. He directed the notification of the rejection of her application, which was sent on 31st January 2003. Nothing further has been heard from the Home Office about the application made on 14th January 2003, except for an acknowledgment, on 19th May 2003, that it had been received and was still to be considered.
On 10th March 2003 Lambeth Social Services Department made its assessment of the children's needs. By that date section 54 of and Schedule 3 to the Nationality, Immigration and Asylum Act 2002 had come into force, as had the Withholding and Withdrawal of Support (Travel, Assistance and Temporary Accommodation) Regulations 2002 ("the Regulations"). The author (I hope I refer to her accurately as Ms Smith) concluded that the claimant intended to remain in the United Kingdom, even if her claim for indefinite leave to remain was rejected, and that Lambeth was prohibited by section 54 of the 2002 Act from providing support under section 17 of the Children Act 1989, and that a return to Jamaica was in her and her family's best interest. She recommended that the claimant and the children be supported for two further weeks to enable her to make plans to return to Jamaica. She stated that she did not believe that her recommendations infringed Article 8 of the European Convention on Human Rights.
Despite that recommendation Lambeth continued to provide accommodation until its threatened withdrawal in June 2003. This prompted an application for permission for judicial review on 11th June 2003, for which permission was given, following oral submissions, by Mr Wynn Williams QC sitting as a Deputy High Court Judge on 22nd September 2003. Since then Lambeth have continued to provide temporary accommodation to the claimant and her children. The hearing of the substantive application was delayed, pending a decision of the Court of Appeal in M v Islington which was handed down on 2nd April 2004.
The current position is as follows. Lambeth is paying for accommodation for the claimant and her three children at Conquest Hotel, 27 Eardley Road, SW16 at a cost of £19,000 per year. She occupies two rooms and a bathroom and toilet and a kitchen. Lambeth also pays £90 per fortnight by way of subsistence. The two eldest children go to local schools. Their attendance record is good, and though Damar had, or perhaps still has, behavioural problems, there are signs of improvement in his case. He has, for example, received a certificate for best improved student for the spring of 2003. Therondo attends nursery in the morning. He is due to attend primary school from September 2004. No criticism is made of the claimant as a mother. It is common ground that, unless her own actions make it unavoidable, it would be unthinkable to break up the family unit constituted by her and her three children.
There is no doubt that her family's present circumstances are better than they would be if the family were to return to Jamaica. According to the claimant, her mother shares a room in Kingston with her partner. She cannot work due to arthritis in her hands. The claimant believes it would be difficult for her to find work in Jamaica due to high unemployment, as well as the need to care for her children. There is a scheme for the payment of non-contributory benefits for children and destitute adults in Jamaica, but at a very low level: 300 Jamaica dollars per month are payable per child and per destitute adult, approximately £3.20 a month each at the exchange rate current in 2003. The claimant also fears for the safety of her older son and for the sexual integrity of her daughter in Jamaica.
The claimant understandably has no wish to return to live in Jamaica. There are practical difficulties in the way of her doing so voluntarily. Her Jamaican passport, which is with the Home Office, has expired. It would have to be renewed at a cost of either £65.00, as advised to her solicitors, or £30, as advised to Lambeth, which sum she does not have. According to information given to her...
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R (Grant) v Lambeth London Borough Council
...the Administrative Court List, who on 17 June 2004 gave judgment for the claimant and made certain declarations in her favour (see [2004] EWHC 1524 (Admin), [2004] 3 FCR BACKGROUND[2] The claimant, who was born on 16 March 1969, is a Jamaican. In November 1992, as Annette Murdock, she enter......