R (O) v Barking and Dagenham London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CALVERT-SMITH |
| Judgment Date | 03 March 2010 |
| Neutral Citation | [2010] EWHC 634 (Admin) |
| Docket Number | CO/12357/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 March 2010 |
[2010] EWHC 634 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE CALVERT-SMITH
CO/12357/2009
MR T BULEY (instructed by Fisher Meredith) appeared on behalf of the Claimant
MR K RUTLEDGE (instructed by Council Solicitors) appeared on behalf of the Defendant
Wednesday, 3 March 2010
: This claimant applied for permission to seek judicial review of a decision of the defendant of 9 October 2009 terminating his support. On 22 October, an application on his behalf for interim relief was listed by Mr Justice Silber for oral hearing on 26 October 2009 and on that day His Honour Judge Thornton QC approved a consent order whereby the parties agreed, amongst other things, that there should be an expedited rolled up hearing for the first open date after 31 November 2009.
In the course of the hearing yesterday Mr Rutledge, representing the defendant, indicated that in view of the potential importance of this decision to other cases, the defendant would not contest the grant of permission. Accordingly, I granted the applicant permission and the hearing proceeded as the substantive hearing.
The claimant is a 19-year old Eritrean asylum seeker. He was born on 6 July 1990. He arrived in the United Kingdom on 25 September 2007 and claimed asylum the next day. A few days later, the defendant carried out an assessment of his needs and accommodated him pursuant to section 20 of the Children Act 1989 until his 18th birthday on 6 July 2008. Thereafter, the defendant continued to accommodate the claimant for nearly a year. But by letter dated 1 June 2009 the defendant informed him that his case would be closed on 18 June that year, the Home Office having informed it that all of his appeals in respect of his asylum claim had been exhausted.
A few days after that, the claimant submitted fresh representations to the Secretary of State in respect of asylum. No decision has yet been made by the Secretary of State as to whether he will treat those representations as a fresh claim or certify them as manifestly unfounded.
The claimant's solicitors sent an urgent pre-action letter to the defendant on 24 June 2009 and after the exchange of a number of letters, the defendant agreed to continue to provide accommodation to the claimant pending the outcome of the fresh representations. In the meantime, the defendant continued to assess the defendant's needs and on 9 October 2009 the defendant informed the claimant's solicitors that his accommodation would be terminated with effect from 26 October 2009. It is this decision which is the subject of this challenge.
The decision is contained in the letter, to which I am about to refer, and a human rights assessment which accompanied the letter. The relevant parts of the letter from the defendant read:
“We note your client is a failed asylum seeker who has exhausted all his rights of appeal. He has recently submitted a fresh claim which means that until it is accepted as a fresh claim he remains unlawfully present. The local authority are prevented from providing him with the support he seeks through the Children Leaving Care Act provisions as a result of section 54 schedule 3 of the Nationality, Immigration and Asylum Act 2002. He needs to therefore seek support from the Secretary of State through section 4 Hard cases support.
“Our assessment of why the withdrawal of support will not breach his Human Rights are as set out in the Human Rights assessment. Your client has the support of the Secretary of State whilst he awaits the acceptance of his fresh claim.
“You will note that a power or a duty under schedule 3 section 1(1) may not be exercised or performed in respect of a person to whom the schedule applies regardless of whether the person has been in respect of support under the [I suspect that should have read receipt but it says respect] provision.
“Our client will however continue to provide a personal advisor and pathway plan. We are providing your client with 14 days notice commencing 12 October 2009 when all support (with the exception of a pathway plan and personal advisor) will be withdrawn. Should your client wish to seek help in the completion of a section 4 support form then our client can offer this support. In any event the landlord will be notified of the local authority's decision to discharge its duties towards your client.”
The human rights assessment which accompanied the letter is a lengthy document dealing in large part with the matters set out by the claimant in support of his asylum claim. At section 3 of the assessment, the defendant argues —though it has not sought to maintain that argument in these proceedings —that the fresh representations would not be such as to result in a finding that the claim was, indeed, a fresh claim and that, therefore, on that ground the defendant was entitled to withdraw support.
But the assessment also repeated what was said in the letter, namely that the defendant's opinion was that the claimant had available to him section 4 support would not, therefore, be destitute or entitled to be accommodated at the expense of the defendant.
On 23 October 2009, the claimant's solicitors were sent an e-mail by the defendant with a string of earlier e-mails attached to it, indicating that the claimant had been informed by the Border Agency in July of his eligibility to apply to it for National Asylum Support Service (NASS) support.
Following the consent order, to which I have referred, the defendant has continued to accommodate the claimant and accepts that other duties imposed upon it in connection with the claimant remain in place, whatever the result of these proceedings. Before turning from the facts to the legal framework and the arguments, it is perhaps worth considering the reality of this claimant's position which is, as the court understands it, that he will be housed at public expense whether by the defendant, the National Asylum Support Service (NASS) or a combination of the two until either he is removed from this country or he persuades the authorities of this country to grant him asylum.
It is possible, though by no means certain, that his accommodation would remain the same. The only question is which of the two, the defendant or NASS, will be primarily or solely responsible for providing and paying for that accommodation. There is no actual possibility, therefore, of his becoming homeless and, therefore, of his rights under the European Convention on Human Rights being infringed.
If the burden falls on NASS, there is a risk that he might be dispersed to another part of the country. As will become clear, variants on the question before this court —though not this question in particular —have already occupied many days of court time, including that in the Court of Appeal and House of Lords. Four issues have been raised at various stages of the proceedings of which only two were in the end the subject of argument.
The first two, which arise directly from the decision and have implications not simply for this claimant but, no doubt, for many others may be stated as follows:
1. May a local authority use the provisions of section 23C of the Children Act 1989 to provide accommodation to”former relevant children.” If so;
2. May a local authority refuse to provide such accommodation to a former relevant child because accommodation can or will be provided to him by the National Asylum Support Service (NASS) by virtue of section 95 or section 4(2) of the Immigration and Asylum Act 1999, the 1999 Act.
The third issue originally before the court was as to whether the claimant falls to be considered as a “asylum seeker” or as a “failed asylum seeker” within the meanings of paragraph 1(7) of schedule 3 to the National Immigration and Asylum Act 2002 because although he has exhausted all avenues so far as his original application is concerned, he has submitted fresh representations to the Secretary of State for the Home Department. Both sides agreed that although the question was an interesting one, it was not one which fell for decision in this case.
A fourth issue which did arise from the decision letter was as to whether the defendant had erred in this case in concluding that the claimant's fresh claim was manifestly unfounded so that he could be expected to leave the United Kingdom without waiting for the fresh representations to be considered by the Secretary of State, and whether its consequent refusal on that ground to continue to supply accommodation had led to a breach of the claimant's human rights. The defendant conceded that ground in this case, without conceding that it would never be inappropriate to make such a decision.
I turn to the legal framework. There are two linked bodies of legislation, subordinate legislation and guidance. The link, in one case at least, is a clearly defined one. In the case of R (Westminster City Council) v NASS [2002] 1 WLR 2956 and in the case of R (AW) v Croydon Borough Council [2007] 1 WLR 3168 the courts have held that the connected legislation created two mutually exclusive schemes. No decision has been found by either side in these proceedings which assists directly as to the answer to the two questions in this case.
The first body of legislation is that which concerns the accommodation of 18 to 20 year olds generally. First, the National Assistance Act 1948 section 21(1):
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