R (KA) v Essex County Council [QBD]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Robin Purchas
Judgment Date18 January 2013
Neutral Citation[2013] EWHC 43 (Admin)
Docket NumberCase No: CO/7470/2012

[2013] EWHC 43 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Robin Purchas Qc (Sitting as a Deputy High Court Judge)

Case No: CO/7470/2012

Between:
The Queen (on the application of KA)
Claimant
and
Essex County Council
Defendant

Nick Armstrong (instructed By Deighton Pierce Glynn Solicitors) For The Claimant

Bryan Mcguire Qc (instructed By Essex County Council Solicitors) For The Defendant

Hearing date: 18th December 2012

Mr Robin Purchas QC:

Introduction

1

In this application the Claimant seeks judicial review of the Defendant's refusal on the 5 July 2012 to provide accommodation and support for the Claimant and her family pursuant to the Children Act 1989 ("the 1989 Act"). The Claimant is a Nigerian citizen and was at the time of the decision illegally in the United Kingdom. Applications on behalf of the Claimant and her husband for leave to remain had been refused without a right of appeal. The case involves a point of potentially wider importance as to the approach of a local authority in deciding whether refusal of support under the 1989 Act would involve a breach of Convention rights as part of the procedural protection for article 8.

2

The Claimant contends that under the Nationality Immigration and Asylum Act 2002 ("the 2002 Act") the statutory framework includes a right of appeal on convention grounds against an immigration decision for the issue of removal directions. The denial of support would in effect compel the Claimant and her family to return to Nigeria, as a result of which they would be deprived of the procedural protection for their Convention rights through an appeal under the 2002 Act.

Context

3

I should explain that with effect from the 9 July 2012 the Immigration Rules were amended to include rule 276ADE providing requirements to be met by an applicant for leave to remain on the grounds of private life in the United Kingdom to include a child under the age of 18 years who had lived continuously in the United Kingdom for at least 7 years. That would prima facie include the eldest child of the family, who was born on the 16 December 2004.

4

On the 7 December 2012 the Claimant made a further application for leave to remain relying on the amended rule and including additional evidence that had not previously been considered by the UK Border Agency ("UKBA"). The application had not been determined at the time of the hearing. In the circumstances, Bryan Maguire QC on behalf of the Defendant accepted that, as the application was not manifestly unsustainable or obviously hopeless, the Defendant would have been bound to provide support for the Claimant and her family pending its determination. However, if in the event the application was refused, the position would be effectively as it was at the time of the Defendant's decision on the 5 July 2012.

5

In the circumstances and bearing in mind that this is a situation in which the Defendant would seek guidance generally, it was agreed by the parties that it would be appropriate and convenient for the application to proceed to a full hearing. I considered that in the circumstances it would be appropriate to hear the application in full, having regard to the particular features of the present case and generally the importance of the principle.

The Facts

6

The Claimant entered the United Kingdom illegally in 2002. Her husband joined her later that year. They have had three children, all born in the United Kingdom aged at the time of hearing, 2 to 8 years of age. On the 12 April 2009 the Claimant and her husband applied for leave to remain. That was refused on the 17 May 2010. The third child was born on the 5 August 2010 and a further application for leave to remain was made on the 17 August 2010. On the 3 September 2010 the Claimant's husband was sentenced to 4 months imprisonment for the use of false documents. On 27 September 2010, the application for leave to remain was refused. On the 11 February a further application for leave to remain was made and supplemented on 14 October 2011, which was refused for reasons set out comprehensively in a letter from UKBA dated 13 January 2012.

7

On the 23 February 2012 an application was made for reconsideration of that decision, relying on article 8 and seeking in the alternative that an immigration decision should be made within 6 weeks by the issuing of removal directions.

8

The Claimant and her family had been living with her sister-in-law. In March 2012 they were told to leave by 4 th April 2012. On the 28 March 2012 a letter before action was sent to the Defendant in respect of its failure to assess and provide for the Claimant under the 1989 Act. That was followed on the 13 April 2012 by the issue of judicial review proceedings. On the 16 April 2012 the Defendant provided accommodation and support for the Claimant and her family with accommodation in a caravan and the proceedings for judicial review were settled by a consent order on the 16 May 2012, including that the Defendant would give 14 days notice of any withdrawal of the interim accommodation and support.

9

In May 2012 the Defendant carried out a needs assessment of the children. That noted in respect of the oldest child that "his parents have informed that he is being brought up to be identified with the African culture." In respect of needs and risks, the assessment recorded that UKBA had reported that "the family's application for leave to remain has been refused on five occasions; however they have no plans to have the family removed immediately from the UK. This does not mean however that services under Section 17 continue." It also reported that enquiries at Refugee Action indicated that they would be able to support the family to return to Nigeria with potentially up to £2,000 resettlement payment in addition to the payment of the flight tickets.

10

The Defendant also carried out an ECHR assessment. The purpose of the assessment was set as: " As Nigerian citizens who are currently in the UK unlawfully the purpose of this assessment is to form an opinion on whether the family's human rights would be contravened if they were to return to Nigeria, their country of origin and legal country of residence."

11

In respect of article 8, the assessment concluded:

" With regards to article 8 they have a right to a private and family life. However as the family will be returning to Nigeria together, there will be no breach of their right to enjoy a family life. Regards to the length of time the family have lived in the UK especially the children. It is Essex County Council's position that the children are still very young and thereforeadaptable to changes in life. It is also clear from the Child in Need Assessment that the children are brought up to be identified with the Nigerian culture and so it is expected that on return to Nigeria, they will be able to adapt easily to the Nigerian way of life. Returning to Nigeria will also strengthen their family life as they will be reuniting with the extended family members."

12

The report concluded that there were no means of support for the family but

" The children will no longer be classified as being in need once they return to their country of origin because their parents will be able to undertake work legally and support their family with their basic needs. The children will be able to attend free education and have a good standard of medical care in their country of origin. Should (the Claimant and her husband) decide to return to Nigeria, the local authority will continue to provide support in the interim whilst travel arrangements are being made."

It set out the final conclusion that:

" In my professional opinion there is no reason why the family cannot return to their country of origin (Nigeria). … The issue of the length of time the family has been in the UK, it is Essex County Council's position that the children are of adaptable age. The parents have informed that they are bringing up their children in the Nigerian culture; therefore they should easily adapt to life in Nigeria if they return and it will also strengthen their family life as they will be reunited with the extended family members. There will be no breach of article …. 8 of the Human Rights Act if support was to be withdrawn by Essex County Council and the family return to Nigeria."

13

On the 12 June 2012 the Defendant wrote to the Claimant and her husband advising them that support would be terminated on the 2 nd July 2012, enclosing the assessments to which I have referred.

14

On the 18 June 2012 the Claimant's solicitors sent a protocol letter to the Defendant challenging the decision to withdraw accommodation and support. The letter set out the factual background and grounds, including reference to the right to appeal against an immigration decision and the efforts being made to persuade UKBA to make that decision. Reference was made to the rights of the children to a private life in the United Kingdom and the inadequacy of the assessment in that respect. It made clear that the Claimant and her family would not voluntarily return to Nigeria.

15

On the 25 June 2012 the immigration solicitors acting for the Claimant wrote setting out the intention to prepare a further application for leave to remain in the event that an immigration decision was not made beforehand. It was intended to obtain reports from a psychotherapist in respect of the Claimant and an independent social worker report on her children, having regard to the effect of return to the Nigeria. On the 2 July 2012 the...

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