R S (by his litigation friend, Francesco Jeff) v London Borough of Croydon Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Lavender |
| Judgment Date | 24 February 2017 |
| Neutral Citation | [2017] EWHC 265 (Admin) |
| Docket Number | Case No: CO/4962/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 February 2017 |
[2017] EWHC 265 (Admin)
Mr. Justice Lavender
Case No: CO/4962/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Azeem Suterwalla (instructed by Bhatia Best Solicitors) for the Claimant
Hilton Harrop-Griffiths (instructed by Yomi Molake) for the Defendant
Caoilfhionn Gallagher (instructed by Rosemary Lloyd) for the Equality and Human Rights Commission
Hearing date: 18 January 2017
(1) Introduction
The Claimant is a national of Iraq. He arrived, unaccompanied, in the United Kingdom on 7 September 2016 and claimed asylum. He was detained overnight and then accommodated by the Home Office at Brigstock House in Croydon, where he remains. He claimed that he was 15 years old, having been born in 2000. The Defendant does not accept this, but proposes to carry out an assessment of his age. The Defendant has refused to provide accommodation and support to the Claimant pending the conclusion of that age assessment.
The Claimant seeks judicial review of that refusal. The Claimant brings this claim by his litigation friend, Francesco Jeff, who is an employee of the Refugee Council. On 23 November 2016 Leigh-Ann Mulcahy QC gave the Claimant permission to bring this claim. An expedited hearing was fixed for 14 December 2016. It was adjourned because of the illness of the Claimant's counsel.
Meanwhile, the Equality and Human Rights Commission sought permission to intervene to the extent of making brief written and oral submissions. Despite the Commission's efforts, this application, which was opposed by the Defendant, only came before me on the day before the hearing, and I refused it, as the Commission had not then produced its written submissions and I was concerned not to jeopardise the hearing on the following day. However, the written submissions were produced, Ms. Gallagher appeared at the hearing to renew the application and the parties agreed that no adjournment would be necessary. I therefore granted permission to the Commission to make written and oral submissions. The Commission's submissions supported the Claimant's application.
(2) Background
When he arrived in the United Kingdom on 7 September 2016, the Claimant said that he was 15 years old. It appears that the Home Office did not accept this, but instead formed the view that his physical appearance and/or demeanour very strongly suggested that he was significantly over 18 years of age. This appears to be the case because paragraph 2.1 of the Home Office instruction of March 2011 on Assessing age would have required him to be treated as a child unless such an assessment had been made. The Home Office did not treat the Claimant as a child, but instead accommodated him in Brigstock House, pursuant to its power to provide accommodation for adult asylum-seekers.
The Home Office then proposed that the Claimant move to alternative accommodation in Cardiff on 19 September 2016. On that day the Claimant was referred to the Refugee Council. In the event, the Claimant did not go to Cardiff. He has remained at Brigstock House ever since, apart from a brief period to which I will refer.
On 20 September 2016 the Claimant first contacted the Defendant, both in person and through the Refugee Council. He requested accommodation and support. The Defendant's initial response was that it was for the local authority in Cardiff to carry out an age assessment. However, on 21 September 2016 the Defendant accepted that it would carry out an age assessment. Regrettably, this assessment has not progressed. Interviews commenced on 27 September and 13 October 2016, but could not be completed, because of the Claimant's health issues. It has taken some time for the Claimant to obtain medical treatment, but he is now in receipt of treatment.
Meanwhile, the Claimant commenced this claim on 30 September 2016. On that day, Simler J. refused the Claimant's application for interim relief, noting that the Claimant had been accommodated safely in Home Office accommodation for 7 weeks.
On 31 October 2016 one of the Defendant's staff telephoned Brigstock House and was told that the Claimant had settled in well and that there had been no concerns about vulnerability, risks or safeguarding.
On 18 November 2016 the Claimant left Brigstock House. He alleges that he was punched by another resident. The Defendant's enquiries of Brigstock House have not revealed any record of this incident. The Claimant did not return to Brigstock House until 2 December 2016, after the alleged aggressor had left. The Claimant has remained at Brigstock House ever since.
There is no evidence before me of any other such incident since then. However, the Claimant's evidence is that he shares a room with adults, his room-mates are regularly changing, they usually speak different languages so that he cannot communicate with them, they are sometimes angry and aggressive towards him and he feels scared and intimidated.
(3) Brigstock House
Many asylum seekers are screened by the Home Office at Lunar House in Croydon. Brigstock House is a hostel in Croydon for adult asylum-seekers. It is managed by the National Asylum Support Service, which is part of the Home Office. It usually provides temporary accommodation pending the "dispersal" of its residents to other parts of the country.
The Home Office only offers accommodation at Brigstock House to individuals who accept that they are, or whom the Home Office considers to be, adults. Where an asylum seeker is screened at Lunar House and the Home Office has doubts about his age, the Home Office will refer him to the Defendant, who will provide him with accommodation and support pending the completion of his age assessment.
When a resident of Brigstock House approaches the Defendant claiming to be a child, then:
(1) if the Defendant accepts that the individual is a child, the Defendant will provide accommodation and support to that individual; but
(2) otherwise, the Defendant will carry out an age assessment (or persuade another authority to do so), but will not offer accommodation or support to the individual pending the completion of that age assessment.
The Claimant contends that Brigstock House is unsuitable for children. The practice of the Home Office and of the Defendant tends to support this contention. The Home Office would not provide accommodation in Brigstock House to a person whom they believed was or might be a child. The Defendant would remove a person from Brigstock House if it believed him to be a child.
(4) The Defendant's Statutory Duties and Powers
The Claimant relied, in particular, on sections 17 and 20 of the Children Act 1989 and section 11(2)(a) of the Children Act 2004. I was also referred to section 1(1) of the Localism Act 2011.
(4)(a) Section 17 of the Children Act 1989
Subsections 17(1) and (6) of the Children Act 1989 provide as follows:
"(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) …,
by providing a range and level of services appropriate to those children's needs."
"(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash."
Subsection 17(10) of the Children Act 1989 defines what is meant by a child being "in need". It is not disputed that, if the Claimant is a child, he is "in need".
Paragraph 1 of Schedule 2 to the Children Act 1989 requires every local authority to take reasonable steps to identify the extent to which there are children in need within their area. In paragraph 32 of his speech in R. (G) v. Barnet London Borough Council [2004] 2 A.C. 208 Lord Nicholls held that:
"The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need."
It is not alleged that the Defendant has carried out such an assessment in the present case.
(4)(b) Section 20 of the Children Act 1989
Subsection 20(1) of the Children Act 1989 provides as follows:
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) …;"
When a local authority provides accommodation for a child pursuant to this subsection, that has consequences beyond the mere provision of accommodation. That is because the local authority is then "looking after" the child for the purposes of section 22 of the Children Act 1989, which imposes additional obligations on the local authority.
The Defendant contended that, even if the Claimant is a child, he is not someone "who appears to [the Defendant] require accommodation," because he is already being accommodated in Brigstock House. I will consider this argument later. Subject to that argument, the Defendant accepted that, if the Claimant is a child, the Defendant owes him the duty imposed by subsection 20(1) of the Children Act 1989.
(4)(c) Section 11 of the Children Act 2004
Section 11 of the Children Act 2004 applies to the Defendant. Subsection (2)(a) provides as follows:
"Each person and...
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