R (N) v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WALKER,Mr JUSTICE WALKER |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWHC 3427 (Admin) |
| Date | 20 December 2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8404/2006 |
[2006] EWHC 3427 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Walker
CO/8404/2006
MS AMANDA WESTON (instructed by Messrs Luqmani Thompson Solicitors, London N22 6BB) appeared on behalf of the Claimant
MR JON HOLBROOK (instructed by London Borough of Lambeth, Borough Solicitor, Legal Services, Lambeth Town Hall, Brixton Hill, London SW2) appeared on behalf of the Defendant
This case concerns a decision by the defendant to refuse support to the claimant under section 21 of the National Assistance Act 1948 ("the 1948 Act"). The decision was taken provisionally on 6 October 2006. It was affirmed on the afternoon of 13 October 2006, after considering and rejecting representations on behalf of the claimant. In the meantime, on the morning of 13 October 2006, these proceedings were issued, along with an application for an emergency injunction.
On 16 October 2006 Collins J on the papers ordered that the defendant provide the claimant with assistance under section 21 of the 1948 Act until determination of the present application. He also directed that there be an anonymity order under section 11 of the Contempt of Court Act 1981. That order is, as I understand it, intended to refer to the claimant and accordingly she has, since the date of that order, been referred to as "N". Collins J made no specific order as regards N's partner. In the spirit of that order, however, I shall refer to him as "M".
Collins J further ordered that the matter come before the court for an oral hearing the following week. In due course, it came before Dobbs J on 25 October 2006. By that time the defendant had lodged summary grounds for contesting the claim. Dobbs J granted permission to the claimant to apply for judicial review, continued the order of Collins J for the provision of accommodation until determination of the claim for judicial review, and made other directions which I need not repeat here.
The claimant is a citizen of Uganda, who arrived in the United Kingdom on 28 March 1998 and claimed asylum. She was subsequently hospitalised in the United Kingdom with very serious and life-threatening illnesses which were diagnosed as AIDs-related. With treatment her health improved. However, she remains chronically ill.
The claimant's immigration status has come before the court in separate litigation. This culminated in a decision of the House of Lords on 5 May 2005, reported as N v Secretary of State for the Home Department [2005] 2 AC 296. In broad terms, there had been two bases on which N claimed to be entitled to stay here. The first was as a refugee entitled to asylum. This was rejected by the immigration authorities, and that rejection was not challenged in the courts. The second concerned the position if N were returned to Uganda. N argued that the lack of medical facilities there would lead to rapid deterioration of her condition and early death. An adjudicator held that she should be allowed to stay, as her removal would involve breach of Article 3 of the European Convention on Human Rights. The House of Lords disagreed.
I do not need to go into the reasons for that disagreement, but it is right that I should set out two paragraphs from the speech of Baroness Hale, which deal with the personal circumstances of the applicant:
" 57 The appellant has no right to remain in this country. She has been refused refugee status. Yet she has been seriously ill-treated. The adjudicator accepted that she was kidnapped by the Lords Resistance Army (' LRA') in Uganda, that she was held by them against her will between 1996 and 1998, and that she was then captured by the National Resistance Movement ('NRM'), an official part of the Ugandan security forces, by whom she was ill-treated and raped. She came to this country to escape from those who had harassed and ill-treated her. She did not know then that she was suffering from a life-threatening illness and she did not come here to obtain medical treatment. But she was not entitled to refugee status because the acts of which she complained were not committed or condoned by the Ugandan authorities. The adjudicator found that the LRA was a terrorist organisation, so that it was reasonable to interrogate her to find out whether she was a member, and that the 'ill-treatment and rape she suffered at the hands of the NRM were in my view the acts of rogue elements in the security force'. They were not acts of the Ugandan state, nor would she be in danger of persecution if she were returned to Uganda now.
I mention all this because many might think that women who have been kidnapped by a terrorist organisation and then raped by members of the state security forces have a powerful claim on the protection of the state to which they flee. I have explained in another case ( R (Hoxha) v Special Adjudicator; R (B) v Immigration Appeal Tribunal [2005] 1 WLR 1063, paras 27–39) how the jurisprudence under the Refugee Convention is developing to recognise that rape is not simply an expression of individual aggression or desire but may be used as a systematic weapon of persecution or war. Regime changes may be less effective in protecting women from such dangers than they are for men. But no one has challenged the adjudicator's decision on her asylum claim. The history does however reveal that she is not a would-be immigrant who came here to benefit from our superior medical services."
On 22 July 2005 N applied to the European Court of Human Rights. Her case is pending. In a letter to the court, the United Kingdom on 3 March 2006 sought an oral hearing, stating that the case involved "potentially very important questions concerning the interpretation of Article 3".
By letter dated 22 July 2005, when acknowledging receipt of a request by solicitors on behalf of the claimant, the European Court advised as follows:
"On 22 July 2005 the Acting President of the Chamber to which the case has been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the United Kingdom, under Rule 39 of the Rules of Court, that the applicant should not be removed to Uganda until 26 August 2005."
Consistently with its recognition that important questions arise, the United Kingdom Government has not sought to remove N pending the outcome of the European Court of Human Rights' decision.
This court is now concerned with questions as to the claimant's entitlement to support while the claimant's case is pending before the European Court of Human Rights. From an early stage the claimant has been supported and accommodated by the defendant. Until earlier this year an interim support scheme was in force. Mr Holbrook, who appears on behalf of the defendant, has informed me that the interim scheme came into force on 11 November 1999, the day that the Immigration and Asylum Act 1999 received Royal Assent. An account of the interim support scheme will be found in MacDonald's Immigration Law & Practice, Sixth Edition, paragraphs 13.131 and following.
It is common ground that earlier this year those interim arrangements ceased to have effect, and that the decisions of 6 and 13 October 2006 are governed by the legal regime put in place by the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002. This legal regime substantially modifies the way in which local authorities must approach section 21 of the 1941 Act. It is the claimant's case that the defendant has misunderstood that regime in two different ways, taken account of irrelevant matters, and reached an irrational conclusion.
The legal regime.
The legal regime which now applies was examined in some detail by Lloyd Jones J when delivering the judgment of this court in R (AW) v London Borough of Croydon [2005] EWHC 2950 (Admin). The relevant provisions of the 1948 and 1999 Acts are helpfully explained by Lloyd Jones J at paragraphs 31 to 33 of that judgment as follows:
"31. Section 21 includes the following provisions:-
(a) '21(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -
(b) residential accommodation for persons aged eighteen 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; and
(c) (aa) residential accommodation for persons aged eighteen 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;
(d) …
(e) (1A) A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies 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 physical effects, or anticipated physical effects, of his being destitute.
(f) (1B) Subsections (3) and (5) to (8) of section 95 of the Immigration and Asylum Act 1999, and paragraph 2 of Schedule 8 to that Act, apply for the purposes of subsection (1A) as they apply for the purposes of that section, but for the references in subsections (5) and (7) of that section and in that paragraph to the Secretary of State substitute references to a local authority.
(g) (3) In making any such...
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