R (M) v Islington London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Maurice Kay,Lord Justice Waller |
| Judgment Date | 02 April 2004 |
| Neutral Citation | [2004] EWCA Civ 235 |
| Docket Number | Case No: C2/2003/1850 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 2004 |
[2004] EWCA Civ 235
Lord Justice Waller
Lord Justice Buxton and
Lord Justice Maurice Kay
Case No: C2/2003/1850
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Stephen Knafler (instructed by Pierce Glynn for M)
Mr Bryan McGuire (instructed by The London Borough of Islington for The London Borough of Islington)
Ms Kristina Stern (instructed by the Treasury Solicitor) for the Interested Party
The facts and issues
The claimant, Mrs M, is a national of Guyana. She came to the UK in 1998 on a visitor's visa, staying here after that visa expired. It is accepted that both at the time of the hearing before the judge and at the time of the present hearing she was and is unlawfully in this country. She is, however, the subject of current immigration proceedings. An appeal against the Secretary of State's refusal of her application for indefinite leave to remain was rejected by an Adjudicator on 23 September 2003. She has however been granted permission by the Immigration Appeal Tribunal to appeal against that decision; we understand that the appeal is to be heard on 23 June 2004.
That application on Mrs M's part is largely based on her family circumstances. In November 1999 Mrs M married Mr M, a native of Antigua with indefinite leave to remain in this country, and set up home with him in his council flat in the area of the respondent council, the London Borough of Islington [Islington]. On 17 October 2001 a daughter [the child] was born. By the operation of section 1(1)(b), read with section 50(2), of the British Nationality Act 1981 the child is a British citizen. She was not only born in the United Kingdom, but born there in lawful wedlock to a father who has indefinite leave to remain here.
Unfortunately, the marriage did not prosper, and in about August 2002 Mr M left the claimant. The tenancy of the flat was transferred to Mrs M, but she is unable to pay the rent, and has no means of subsistence for herself or the child apart from the provision that Islington has, very properly, made pending the outcome of the present proceedings. As to the husband, we were told from the bar that arrangements have been made for contact between him and the child, arrangements that Mr M has in the main fulfilled.
Again very properly, the situation of Mrs M and the child attracted the concern of Islington's social services department, which embarked upon an assessment of the child's needs under the provisions of the Children Act 1989. On the basis of that assessment Islington concluded that the needs of the child could be met by providing Mrs M and the child with tickets to enable Mrs M to return to her family in Guyana. That step was not, in itself, outside Islington's proper powers under the Children Act: see R v Hammersmith & Fulham LBC ex p D [1999] 1 FLR 642, per Kay J. However, it then came to be accepted that, as set out above, Mrs M was unlawfully in the United Kingdom. That was thought by Islington to impact on its Children Act obligations towards the child, by the operation of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 [Schedule 3] and the Witholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 [the Regulations]. I shall have to return to these provisions in much more detail later in the judgment. On the basis of its understanding of them, Islington sent a long and detailed letter to the claimant's solicitors on 27th March 2003, the salient points of which were:
• Islington maintained its earlier decision "to offer [Mrs M] and [the child] one way plane tickets to Guyana because [the child's] welfare would be best safeguarded and promoted by being cared for in Guyana where she has a Grandmother, Aunt, Uncle and cousins, and therefore a greater prospect of family support than she has in the UK"
• If Mrs M nonetheless remained in the UK in order to pursue her immigration proceedings, "circumstances could very well arise whereby mother and child might be separated in breach of Article 8 if [Mrs M] remained in this country pursuing your application to remain here without any means of supporting your child. Without deciding what the authority would do in circumstances which have not arisen, there would be a real prospect that the authority would reach a decision that the child had to be taken into care as a means of addressing its [scil., the child's] needs".
• Nonetheless, Islington had "not made any decision as to what would happen in the event that the offer was refused even after having been found by the court to have been lawfully made. This is not a case where a decision has been made, still less a threat made, to take [the child] into care. In the event that [Mrs M] refuse[s] to accept the offer made even following court proceedings, the Islington would continue to assess what is in the best interests of [the child] in the light of developing circumstances."
Mrs M has throughout adamantly opposed any return to Guyana either for herself or for the child. In these proceedings she seeks an order quashing the decision to offer tickets to Guyana contained in Islington's letter of 20 January 2003; and directions that Islington should further assess the needs of Mrs M and the child under section 17 of the Children Act, and pending the completion of that assessment provide Mrs M with accommodation and maintenance.
The legislation
The enquiry starts with Islington's powers and duties under section 17 of the Children Act. The most immediately relevant provisions are in section 17 (1)-(3), which read:
17 (1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-
(a) to safeguard and promote the welfare of children within their area who are in need; and,
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
There is no dispute that the child in the present case is "in need".
The local authority's position has however been severely affected by, and these proceedings address, Schedule 3. That is entitled "Withholding and Withdrawal of Support", and by § 1(1) provides that
"A person to whom this paragraph applies shall not be eligible for support or assistance under"
and there are then set out a very large number of statutory provisions that otherwise provide health, welfare and housing benefits. Importantly for present purposes there is included, under § 1(1)(g):
"section 17, 23C, 24A or 24B of the Children Act 1989 (welfare and other powers which can be exercised in relation to adults)"
Schedule 3 then goes on to indicate various exceptions to the blanket exclusion of rights under the listed statutes. The exceptions relevant to our case are to be found in §§ 2 and 3:
"2(1) Paragraph 1 does not prevent the provision of support or assistance-
(a) to a British citizen, or
(b) to a child.
3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—(a) a person's Convention rights …"
Schedule 3 then goes on to set out the four classes of persons who are by paragraph 1, and subject to the above exceptions, rendered ineligible for the statutory benefits that Schedule 3 addresses, and then makes further provision for the limited amount of assistance that local authorities are permitted to give to persons falling within those categories. Those provisions are important in the determination of this appeal, and need to be set out in full:
"First class of ineligible person: refugee status abroad
4 Paragraph 1 applies to a person if he-
(a) has refugee status abroad, or
(b) is the dependant of a person who is in the United Kingdom and who has refugee status abroad.
(2) For the purposes of this paragraph a person has refugee status abroad if -
(a) he does not have the nationality of an EEA State, and
(b) the government of an EEA State other than the United Kingdom has determined that he is entitled to protection as a refugee under the Refugee Convention.
Second class of ineligible person: citizen of other EEA State
5 Paragraph 1 applies to a person if he-
(a) has the nationality of an EEA State other than the United Kingdom, or
(b) is the dependant of a person who has the nationality of an EEA State other than the United Kingdom.
Third class of ineligible person: failed asylum-seeker
6 (1) Paragraph 1 applies to a person if-
(a) he was (but is no longer) an asylum-seeker, and
(b) he fails to cooperate with removal directions issued in respect of him.
(2) Paragraph 1 also applies to a dependant of a person to whom that paragraph applies by virtue of sub-paragraph (1).
Fourth class of ineligible person: person unlawfully United Kingdom
7 Paragraph 1 applies to a person if-
(a) he is in the...
To continue reading
Request your trial
-
R (Grant) v Lambeth London Borough Council
...BC[2003] 3 FCR 222 and R (on the application of M) v Islington London BC (Secretary of State for the Home Dept, interested party)[2004] EWCA Civ 235, [2004] 2 FCR 363 (2) The authority could not lawfully fund the claimant’s travel arrangements. Although the powers in s 2 of the 2000 Act wer......
-
MN and KN v London Borough of Hackney
...17 of the Children Act 1989 is not straightforward. As a matter of construction, however, and as analysed in R (M) v Islington LBC [2005] 1 WLR 884, the effect of Schedule 3 of the 2002 Act as it applies in the present case appears to me to be as follows: (1) The claimants and their parents......
-
R (Clue) v Birmingham City Council
...application themselves by making it impossible for the applicant to pursue it. This last point was considered by this court in R (M) v Islington Borough Council [2004] EWCA Civ 235, [2005] 1 WLR 884. At [46], Buxton LJ (with whom Maurice Kay and Waller LJJ agreed on this point) said: “I f......
-
The King (on the application of) BCD by his Litigation Friend EFG) v Birmingham Children's Trust
...on overstaying foreign national parents caring for British children: R(ZH Tanzania) v SSHD [2011] UKSC 4 – and R(M) v Islington LBC [2004] EWCA Civ 235 – the latter a case about local authority support under s.17 CA I consider further below. Moreover, despite the Old NRPF Policy having be......