R OA v London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | John Kimbell |
| Judgment Date | 15 August 2019 |
| Neutral Citation | [2019] EWHC 2537 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 August 2019 |
| Docket Number | No. CO/2719/2019 |
[2019] EWHC 2537 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr John Kimbell QC
(Sitting as a Deputy Judge of the High Court)
No. CO/2719/2019
and
Ms G Mellon (instructed by GT Stewart) appeared on behalf of the Claimant.
Ms D Rhee QC (instructed by the London Borough of Camden) appeared on behalf of the Defendant.
Mr A Lenanton (instructed by the Government Legal Department) appeared on behalf of the Interested Party.
John Kimbell QC (SITTING AS A DEPUTY HIGH COURT JUDGE):
This is an oral application for permission to bring a judicial review claim. An application for permission would ordinarily be considered by a judge on the papers, and then only if refused would there be a reconsideration at an oral hearing. However, in this case, by paragraph (1) of an order of Mr Justice Freedman made on 1 August 2019, the issue of permission has been adjourned to an oral hearing. Pursuant to paragraph 8.2.5 of the Administrative Court Judicial Review Guide this hearing has been treated as a renewed permission hearing.
The claimant is a four-month old baby. Pursuant to an anonymity order made by David Pittaway QC, (and indeed previously also made by Supperstone J on 11 July 2019) under CPR 39.2, the claimant is anonymised, and for that reason is referred to in this judgment as “OA”. He brings this claim by his mother and litigation friend, whom I will refer to as “AA”.
OA was born on 17 April of this year at the Royal Free Hospital in Camden. The birth was normal and he is, by all accounts, a healthy baby who is flourishing. His mother is a 38-year-old citizen of Nigeria who came to this country on a six-month visitor visa in 2015.
Following a return to Nigeria, AA re-entered the United Kingdom in February 2016, this time under a two-year multiple-visit visa. I have not seen those visa applications, but it seems that the visas were sponsored by AA's half-sister, who lives in England. The two-year visa expired last year.
AA has a 12-year-old daughter, “B”, with her former partner, whom I will refer to as “NA”. He is also the father of OA. Their daughter was born in Nigeria and lives there with AA's mother and another sister of AA. AA says she met the father of her two children in Nigeria in 2005.
NA is a 53-year-old man who comes originally from Nigeria but who has joint Finnish/Nigerian citizenship. He appears to have come to the UK in 2016. It is said, although on rather thin evidence, that he is a self-employed football coach and personal trainer, who is now living in Manchester. AA claims to have lived with OA's father in Dagenham for one or two years until October 2018. It is said that he left AA in October 2018 when he found out that she was two months pregnant with OA.
AA has made two applications for an EEA residence card, i.e. a card under the European Economic Area Regulations 2016. The first application was in November 2016; the other was in November 2017. Both applications were rejected by the Home Office because the Home Office considered that AA had failed to provide sufficient proof of a durable relationship with OA's father. The Home Office retained AA's passport. OA's father at that point seems to have gone to live in Stevenage with another son of his, who is therefore a half-brother both to OA and to B.
OA initially stayed with a friend in Dagenham who provided food and accommodation for a month, and then with a cousin in Camden until OA was born. AA's cousin said that AA could not remain living with her after OA was born, and she wrote a letter explaining that she lived in a two-bedroom flat with her partner and son and that looking after AA had been a strain on the relationship and having a baby would be too much. That letter is at bundle page 17 in section E.
In the face of a threat of a judicial review, the London Borough of Camden agreed on 23 April 2019 to provide temporary accommodation to OA and his mother while an assessment was carried out under section 17 of the Children Act 1989. AA and her son were provided with a flat in Belsize Park.
On 14 May, OA's father submitted an application for Finnish citizenship for OA. That application remains outstanding. On 27 June 2019 a certificate was provided by the Finnish immigration service that the application had been made. The date on which it is recorded as having been initiated is 14 May 2019.
The criteria by which that citizen application is likely to be judged are set out in paragraph 43 of an unsigned but approved witness statement provided by OA's mother to her solicitors. Although I have no evidence as to whether those requirements will be met, they are fairly standard requirements for such an application and there is no reason (and certainly no one has submitted that there is any real reason) to doubt that the application will be successful in due course. In any event, the position for the purposes of the application today is simply that the application has been made and is outstanding.
While the assessment under section 17 was being carried out, the London Borough of Camden provided social work support and access to emergency funds to OA's mother. The result of that assessment was communicated under cover of a letter dated 25 June 2019, and it is that decision which the claimant seeks permission to challenge by way of an application for judicial review. The covering letter says as follows:
“For the reasons set out in the CAFA [child and family assessment] Camden has concluded that if you decide to remain in the UK you will be able to continue to rely upon your support network, which includes in particular [OA's] father, your cousin and your sister, and that therefore you and your son do not need support under section 17 of the Children Act. The authority considers it is entitled to come to this conclusion because of your proven ability to manage since you arrived here from Nigeria in 2016 and because it is not satisfied with your account of how you can no longer rely on that support network, even though you now have a baby.”
That is the first part of the decision. The second part of the decision which was communicated is as follows in the second paragraph:
“Further, even if you are destitute Camden is prohibited from providing you with support under section 17 [of the Children Act], by reason of Schedule 3 to the Nationality, Immigration and Asylum Act 2002.”
So there are two parts of the decision that was reached by the authority.
At the end of that letter, further details are provided of the matters that Camden has considered, including rights derived from the EEA Regulations. Then at the end of the letter, this is said:
“I emphasise that even if you have a derivative right to reside under regulation 16(5) [of the Regulations], this does not affect Camden's decision not to continue to support you and your son because the primary reason for this is that it is not satisfied that you are destitute.
In the circumstances the authority considers that 14 days is sufficient time for you to make alternative arrangements and so you must leave your accommodation by 4 pm on 09/07/2019.” (Emphasis in original)
Before the signature, this paragraph appears:
“If you disagree with any of the above or with the contents of the enclosed documents what you or your solicitors say will be taken fully into account. I would be grateful if you would peruse all the documents I have given you today and let me know by Friday 28th June in person or in writing or through your solicitor whether you have any comments on those documents as your views are also very important in ensuring that documents reflect what has been written and taken your comments on board.”
It is common ground that the letter was delivered by hand to the claimant's mother on the 25th, which I think was a Tuesday, and the last paragraph of the letter is clearly giving her until the Friday of that week to provide any further comments.
The decision letter enclosed three documents:
(1) A child and family assessment completed, it is said, internally on 5 June 2019;
(2) A nonstandard document headed “chronology of misinformation”; and
(3) A human rights assessment form on a standard template.
Having received the letter by hand, on 1 July AA gave instructions to her solicitors and they then sent a pre-action protocol letter on 2 July which complained about the way in which the decision had been made. It made a number of points, but in particular of relevance for this application is that on the second page, about two-thirds of the way down, the solicitor made this point:
“The claimant's birth was registered shortly after he was born by his mother and father. The claimant's father has applied for the...
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