R (M) v Islington London Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilson,Justice Wilson |
| Judgment Date | 05 June 2003 |
| Neutral Citation | [2003] EWHC 1388 (Admin) |
| Docket Number | Case No: CO 398/03 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 June 2003 |
[2003] EWHC 1388 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Wilson
Case No: CO 398/03
Mr Stephen Knafler, instructed by Messrs Pierce Glynn, appeared on behalf of the Claimant
Mr Bryan McGuire and Mr Paul Turner, instructed by its Legal Department, appeared on behalf of the Defendant
Miss Kristina Stern, instructed by the Treasury Solicitor, appeared on behalf of the Interested Party
What powers do local authorities now have to provide accommodation for an adult who, not being an asylum-seeker, is unlawfully present in the United Kingdom and who is caring for a child? The answer requires me to consider changes in the law wrought by the Nationality, Immigration and Asylum Act 2002, and regulations made thereunder, which came into force on 8 January 2003.
The claimant is a female national of Guyana. She came to the U.K. early in 1998 with the benefit of a visitor's visa valid for six months. She has lived here ever since. In November 1999 she married Mr M ("the husband"), a native of Antigua who has indefinite leave to reside in the U.K. The claimant and the husband set up home in his small council flat in Islington. On 17 October 2001 a daughter ("the child") was born to them. In that, at the time of her birth, the husband was settled in the U.K, the child has British nationality. In August 2002 the husband left the claimant; and the marriage finally broke down. The claimant has continued to live with the child in the council flat, the tenancy of which, subject to substantial arrears of rent, has been transferred by court order into her name. But she is not entitled to state benefits. Pending determination of this claim, the Defendant ("Islington") has been ordered to continue to allow the claimant and the child to occupy the flat notwithstanding that she has not been able to pay the rent; it is also properly giving effect to the spirit of the order by making payments enabling them to subsist meanwhile.
The claimant has made and continues to make strenuous attempts to secure indefinite leave to remain in the U.K. In June 1998, prior to the expiry of her visitor's visa, she applied to the Secretary of State for an indefinite extension of her leave to remain. In July 2000 that application was refused; and the claimant did not appeal against it. Meanwhile, however, in December 1999, shortly after her marriage, she had made a fresh application for leave to remain in the U.K. by virtue of the marriage. In January 2002 that application was also refused, apparently on the basis that even then the marriage was no longer subsisting. That conclusion was apparently reached by reference to something said by the husband. In February 2002 the claimant appealed against that second refusal but even now, sixteen months later, the appeal remains unheard. In that now, at any rate, the marriage has broken down, the prospects for its success are accepted to be forlorn. In November 2002, however, further representations were submitted by the claimant, through solicitors, to the Secretary of State for a grant of exceptional leave to remain on compassionate grounds relating in particular to the child's connections with the U.K and the claimant's alleged inability to provide for her in Guyana. The Secretary of State has not yet responded to those representations. Miss Stern, who appears on behalf of the Secretary of State as an Interested Party, ascribes the delays in processing the claimant's various attempts to secure indefinite residence in the U.K. to a shortage of resources and to the priority currently given to the processing of claims by asylum-seekers. She also points out that, even were the outstanding appeal dismissed and the outstanding representations rejected, the claimant might nevertheless make further representations to the Secretary of State to the effect that removal would infringe the human rights of herself and/or the child under the Human Rights Convention of 1950. As I will explain, the claimant is already raising substantial arguments to such effect in these proceedings. Were the Secretary of State to reject any such further representations and to decide to issue directions for her removal, the decision could be the subject of appeal to an adjudicator under s.65 of the Immigration and Asylum Act 1999.
On 27 January 2003, when these proceedings were issued, it was hesitantly assumed both by the claimant and by Islington that she was still lawfully present in the U.K. It was thought that such was the probable effect of pendency of the appeal against the refusal of the application in January 2002. On about 12 March 2003, however, the Secretary of State suggested that the claimant was no longer lawfully present in the U.K; and his view is now accepted by the claimant and by Islington as correct. It appears that the claimant's first application for indefinite leave to remain, made prior to the expiry of her visa, won her a statutory extension of leave until 28 days after it was refused, i.e. until August 2000. Her second application, however, was made only within the period of extension statutorily granted to her by reason of her first application and therefore never attracted statutory extension in its own right: see paragraph 3(2)(c) of the Immigration (Variation of Leave) Order 1976 (1976 No. 1572); thus there is no such leave capable of further extension pending the appeal.
The discovery that the claimant is unlawfully present in the U.K. has had a major impact upon the shape of this application. First, it led Islington to review its previous decision, which (as I will explain) was to refuse to support the claimant and which was the initial subject of the challenge in these proceedings. In the event, as I will explain, Islington resolved essentially to adhere to its previous decision, although it considered that it needed to frame it by reference to different legal powers. The legal arguments raised in the case have shifted analogously and indeed dramatically.
In September 2002 the health visitor referred the claimant and the child to Islington's social services department on the basis that they were in need of financial assistance. Islington embarked upon an assessment of the child's needs under the Children Act 1989. The social worker allocated to the case conducted two meetings with the claimant, namely on 4 December 2002 and 7 January 2003; present at both interviews in order to assist the claimant was an adviser from Hackney Women's Aid. I will need to look more carefully at what Islington gleaned about the case from these meetings. It suffices to say at this stage that at the second meeting the allocated worker explored at length the possibility that the claimant and the child might return to Guyana; and it is clear that, supported by her adviser, the claimant expressed vehement opposition to that course.
Following discussions between the allocated worker and senior members of her department, Islington reached a decision. On 14 January 2003 it was communicated orally to the claimant's adviser: it was that Islington was not prepared to provide monetary or other assistance for the claimant to remain in the U.K. but was prepared to fund the purchase of one-way tickets to Guyana for her and the child. On 20 January 2003 the decision was communicated by letter from the allocated worker to the claimant's adviser. In the letter Islington said:
"Following the referral you made in regards to the above family's financial and housing situation, I am writing to inform you that I have completed my assessment on the family.
From the assessment it was obvious that the family have financial difficulties with very limited support network in the U.K. Unfortunately, this Department is unable to provide the ongoing financial support they require towards their rent and day-to-day subsistence.
The Department is of the opinion that it will be in the best interest of [the child] that [the claimant] considers returning to Guyana. This is because we feel that both [the child and the claimant] will be better supported by extended family members in Guyana."
In the letter the allocated worker did not expressly repeat the offer to fund travel to Guyana; but such was no doubt implied. Islington's written 'core assessment' of the child's needs was sent to the claimant by her solicitors only on 3 March 2003. The document records that its compilation began on 4 December 2002 and that it was completed on 5 December 2002 and was updated on 30 January 2003.
Following the conclusion in mid-March that the claimant was unlawfully present in the U.K., Islington resolved to reconsider its decision, in the light, in particular, of any change in the relevant legal framework. It thereupon wrote a very careful letter dated 27 March 2003, which is now the target of the claimant's assault in these proceedings. In the letter it set out its analysis of its powers and of their proper exercise in the light in particular of allegations made on behalf of the claimant that its refusal to provide accommodation and support for her and the child and/or its offer of tickets for them to return to Guyana would infringe their rights in particular under Articles 3 and 8 of the Convention of 1950. Subject to refinement, Islington in effect repeated its previous offer. It offered to fund the purchase of one-way tickets for the claimant and the child to travel to Guyana; that offer was made in...
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