R (SO) v London Borough of Barking and Dagenham
Jurisdiction | England & Wales |
Judge | Lord Justice Tomlinson,Lord Justice Leveson,Lord Justice Jacob |
Judgment Date | 12 October 2010 |
Neutral Citation | [2010] EWCA Civ 1101 |
Docket Number | Case No: C1/2010/0601 |
Court | Court of Appeal (Civil Division) |
Date | 12 October 2010 |
[2010] EWCA Civ 1101
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Calvert-Smith
Before : Lord Justice Jacob
Lord Justice Leveson
and
Lord Justice Tomlinson
Case No: C1/2010/0601
CO/12357/2009
Richard Drabble QC and Tim Buley (instructed by Fisher Meredith LLP) for the Appellant
Ashley Underwood QC and Kelvin Rutledge (instructed by LB Barking Legal Department) for the Respondent
Elisabeth Laing QC and David Blundell (instructed by the Treasury Solicitor) for the Interested Party
Ian Wise QC and Stephen Broach (instructed by The Children's Society) for the Intervener
Hearing date : 21 July 2010
Lord Justice Tomlinson :
This appeal raises the question upon whom falls the financial burden of providing accommodation to an eighteen year old asylum seeker who is also a “former relevant child”, to the extent that his welfare requires it, where the asylum seeker is not in education or training. Does it fall upon the local authority, pursuant to its duty under s.23C(4)(c) of the Children Act 1989, as amended, hereinafter “the Act”, or does it fall upon the National Asylum Support Service hereinafter “NASS”, and thus upon the Secretary of State, pursuant to her powers under the Immigration and Asylum Act 1999?
The context in which the court has been asked to determine this question is an appeal from a decision of Calvert-Smith J, who held that a local authority derives from s.23C(4)(c) no power to provide accommodation, whether to a former relevant child asylum seeker or to any other person. He did not therefore need to decide what was the inter-relationship between the power or duty of the local authority and the power of the Secretary of State. However the judge went on to indicate that had that latter question arisen, he would have held that the local authority was entitled to conclude that the former relevant child asylum seeker would be likely to receive assistance from the NASS, at least until the result of any application for such assistance was known, and thus that his welfare did not require the provision of accommodation by the local authority.
The decision of the judge has apparently been received in some quarters with consternation and surprise, not least because local authorities have, we were told, on many occasions accepted an obligation to provide accommodation to “former relevant children”, i.e. those who were formerly in care but who have attained the age of eighteen, which is the class of persons with which s.23C(4)(c) of the Act is concerned. Concern for the interests of this vulnerable cohort prompted an application by The Children's Society to be joined as an intervener. So too, in due course, on 15 April 2010 the Secretary of State was similarly joined, albeit not at his behest. It is a measure of the impenetrable nature of the legislation with which the court is concerned that until a week before the hearing it was the position of the Secretary of State that the local authority indeed enjoyed no power under s.23C(4)(c) of the Act to provide accommodation to a former relevant child, and furthermore that the local authority was in the case of a former relevant child asylum seeker entitled to rely upon the availability of NASS accommodation. The Secretary of State appeared at the hearing and argued to precisely the contrary effect on both points. I do not say this by way of criticism. There is nothing wrong with second thoughts, and as it happens I have concluded that the second thoughts of the Secretary of State were correct. It does, however, demonstrate that the legislation is far from clear.
It will be apparent therefore that by the time the issue reached this court the concern was far removed from simply the interests of the nominal applicant, SO, to whom the local authority has in any event and to its credit at all times provided, and continues to provide, accommodation, a subsistence allowance of £51.85 per week for food and other essentials and travelling expenses of £118.30 per month to enable him to pursue a full-time course at Lambeth College.
The Appellant, SO, is a national of Eritrea. He arrived in the UK on 25 September 2007 and claimed asylum the next day. For the purposes of this appeal his date of birth is assumed to be 6 July 1990 so that he is now twenty. The Respondent local authority assessed his age on 2 October 2007 as seventeen years old. It has at all times been the belief of the Secretary of State that the Appellant is, in fact, Hashim Mahmoud Hassan, an Eritrean born on 21 February 1987, who had applied for entry clearance as a visitor from Saudi Arabia. The Appellant's asylum claim was refused on 28 November 2007. His appeal against that refusal was allowed by IJ Oliver in a determination dated 10 March 2008. The Secretary of State applied for, and was granted, an order for reconsideration. On 11 June 2008 SIJ Southern decided that the determination of IJ Oliver contained an error of law.
There was then a second stage reconsideration hearing before IJ Charlton Brown. In a determination sent on 18 October 2008 he dismissed the Appellant's appeal, finding that he was “a witness without credibility”: paragraph 7.1. At paragraph 7.11 he concluded that:-
“… this Appellant is indeed Hashim Hassan, with a date of birth 21 February 1987, he was, as stated in interview, born in Jeddah, his parents lived there and whilst he apparently visited Eritrea in 1997, he has never been afraid to go to that country and the only reason he does not go because [sic] his family all reside in Saudi Arabia. He has his own valid Eritrean passport in the name of Hashim Hassan and apparently resident's documentation in relation to Saudi Arabia.”
SIJ Batiste refused permission to appeal to the Court of Appeal on 5 November 2008. Scott Baker LJ refused permission on a renewed application on 19 January 2009, finding that IJ Charlton-Brown “was entitled to disbelieve his story as a witness “entirely without credibility””.
Under cover of letters dated 15 June and 17 July 2009 the Appellant's representatives made further representations which they asserted amounted to a fresh claim pursuant to paragraph 353 of the Immigration Rules. The Secretary of State decided that the further representations were not a fresh claim, communicating that decision by a letter dated 17 June 2010.
The Appellant was accommodated by the local authority as a child pursuant to its powers under s.20 of the Act from the time when he first claimed asylum until his alleged eighteenth birthday on 6 July 2008. Since that date the local authority has continued to accommodate him. Notwithstanding that the local authority has apparently been at all material times aware of the decision of IJ Charlton Brown, it has at no time sought to revisit its own assessment of the Appellant's age.
However, on 1 June 2009 the local authority sent a letter to the Appellant indicating its intention to terminate its support for him. Following correspondence between the local authority and the Appellant, the local authority formally terminated his support for the reasons given in a letter dated 9 October 2009. That letter was accompanied by a pathway plan and a Human Rights Assessment. The decision of 9 October 2009 was, we were told, taken in ignorance of the fact that as from a date in September 2009 the Appellant had registered at Lambeth College on a BTEC First Diploma course in electronics, notwithstanding that as a later pathway plan revealed that fact had been vouchsafed to an officer of the Respondent local authority on 22 September 2009, and indeed the Respondent has been paying relevant travel expenses.
The local authority gave two reasons for its decision. First, that the further representations to the Secretary of State were manifestly unfounded; and, second, that in any event the Appellant was eligible for support from NASS, pursuant to s.4 of the Immigration and Asylum Act 1999. The question of the power of the local authority under s.23C of the Children Act 1989 was not raised.
The Appellant challenged the decision of 9 October 2009 in the present proceedings. Calvert Smith J dismissed the claim for judicial view on 3 March 2010: [2010] EWHC 634 (Admin). Before the judge the local authority raised the question whether s.23C(4)(c) gave to it a power to provide accommodation to a former relevant child. It contended, and the judge agreed, that it did not. However, the judge granted permission to appeal to this court.
The basis upon which this court has been asked to consider the issue which I have identified in paragraph 1 above is as follows. First, the court is invited to treat the appellant as still an asylum seeker. It is accepted that on the authority of the decision of the Divisional Court in R(ZA)(Nigeria) v SSHD [2010] EWHC 718 (Admin) he is in fact now a failed asylum seeker, but that decision is itself the subject of an appeal to the Court of Appeal, which has been heard and in respect of which judgment is awaited. 1 No argument was addressed to this court on that question. Second, the court is asked to assume that the Appellant is, as he claims, twenty years old and not, as has been determined by the Asylum and Immigration Tribunal, twenty-three years old. The significance of this is that the power under s.23C(4)(c), of whatever it consists, is available only in respect of former relevant children between the ages of eighteen and twenty-one, unless the former relevant child's pathway plan sets out a programme of education or training which extends beyond...
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