R A v London Borough of Barking and Dagenham
| Jurisdiction | England & Wales |
| Judge | Deputy Judge |
| Judgment Date | 06 June 2013 |
| Neutral Citation | [2013] EWHC 1800 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/459/2013 |
| Date | 06 June 2013 |
[2013] EWHC 1800 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Timothy Dutton QC
(Sitting as a Deputy Judge of the High Court)
CO/459/2013
Miss Shu Shin Luh (instructed by Fisher Meredith) appeared on behalf of the Claimant
Mr Kelvin Rutledge QC (instructed by Legal Services, London Borough of Barking and Dagenham) appeared on behalf of the Defendant
This matter comes before me as a rolled-up application, that is an application for permission, and, if granted, for judicial review to be heard and, if appropriate, relief to be given. It does so pursuant to two orders: the first of Philip Mott QC who, on 19 March, said judicial time should be allocated for a rolled-up hearing with directions for a bundle and concise skeleton arguments; and the second of Mr Justice Paul Walker when on an application for interim relief an undertaking was effectively given that the claimant would be accommodated and supported until her 18th birthday and for a period of three weeks afterwards. That latter part of the undertaking has been given by the local authority ("the defendant") pursuant to its obligation to act as it sees appropriate under Section 1 of the Localism Act 2011 and in the public interest in circumstances which have become somewhat more complicated as a result of the claimant's immigration status.
The claimant is now 17. She will be 18 next Thursday on 13 June. Her witness statement and the background documents indicate that she has suffered abuse at the hands of others and at times has been made street homeless. The defendant authority has housed her and provided assistance as a result of her application to the court, but it did not accept that it had any liability to do so. The claimant, through solicitors, sought relief from the court. On 19 March 2013 Philip Mott QC (sitting as a Deputy High Court Judge) directed that there should be this rolled-up hearing.
Matters have proceeded since then in the following way. On 3 June the defendant local authority accepted that it was liable under Section 20 of the Children Act 1989 to provide accommodation and assistance to the claimant. Until that point the defendant authority, who have been represented today by Mr Kelvin Rutledge QC, had not accepted that it had such a liability. The acceptance of that liability might have meant that the substance of this judicial review application would have fallen away. But that is not quite the position. The position is that in the light of the fact that the local authority had not accepted that it had a liability under Section 20, it is prepared to accept, and indeed, as I understand it, would welcome declaratory relief from the court confirming that there was such a liability on the local authority and indeed that liability will continue until the claimant reaches adulthood at least, which is on Thursday 13 June.
I will make a declaration in suitable terms. (The terms of the declaration can be provided to me by counsel.) I should indicate that Miss Shu Shin Luh, who appears on behalf of the claimant, has said that the local authority's acceptance of its liability under Section 20 does not go far enough in circumstances where the local authority plainly has obligations under the Children Act which, despite the immigration status (which I am going to come to in a moment), still continue and will continue until she is an adult. Those duties contain obligations for the local authority to carry out an assessment, and to prepare a Pathway plan.
I have been taken to the Guidance which accompanies the Children Act 1989. It is said that the Guidance (tabs 8 and 9 of the agreed authorities bundle) confronts the position with which we are faced, namely that of a person who may be required to leave the country because of his or her immigration status and in respect of whom steps must be taken in order for the person to be properly managed out of the country into his or her country of origin.
The position is that the claimant is currently a child and will remain a child under the legislation until next Thursday. That, in turn, means that under Regulation 40 of the Children Act Regulations the local authority must (under Regulation 41) assess her needs in accordance with Regulation 42, prepare a Pathway plan in accordance with Regulation 3 and complete the assessment of needs in accordance with Paragraph 19B of Schedule 2 of the 1989 Act not more than three months after the date on which she reaches 16 or becomes an eligible child after that age. She has of course reached 16, and the acceptance of the liability under Section 20 has only very recently occurred. We are therefore facing the prospect of her becoming 18 in circumstances where a Pathway plan has been prepared, initially at least against the background where it was not accepted that there was a liability under Section 20.
I therefore accept the position in principle which is that the claimant is still a child. There is still an obligation to accommodate and support her under Section 20 which is acknowledged and that, in turn, gives rise to requirements for assessment and the requirement for provision of a Pathway plan. It is said — and I am not making any ruling on this — that a Pathway plan has been developed and that the statutory requirements have been complied with even though the liability was not itself accepted under Section 20. I am not ruling upon that question. I am simply setting out what the situation currently is.
So far as the Guidance is concerned, if one looks at the Guidance behind tab 9 of the bundle it is clear that unaccompanied asylum-seeking children are provided for in Paragraphs 6.20 through to 6.30 (to which I was taken this morning) and there is provision in the Guidance for unaccompanied asylum-seeking children to be properly provided for and for there to be a transitional plan, longer term planning and so on.
I turn to the impact of the claimant's current immigration status on the basic principles as I have set them out. On 2 March 2013 the Secretary of State refused the claimant's asylum claim. On 29 April the First Tier Tribunal dismissed the claimant's appeal. On 1 May the tribunal's decision was sent to the claimant by recorded delivery. She was therefore deemed to have received it on or about 3 May. She appears to have been advised that she had no grounds for appeal to the Upper Tribunal and her time for making an application for permission to appeal to the Upper Tribunal expired on 10 May. She appointed new solicitors on 15 April. [ Refer paragraph 28 of transcript] They instructed counsel. Advice was given on 3 June, so a matter of some three days ago. On 4 June, an application was made to the First Tier Tribunal for permission to appeal to the Upper Tribunal out of time.
The position in terms of the National Immigration and Asylum Act 2002 ("the NIAA") is as follows. When the claimant turns 18 on 13 June, if the First Tier Tribunal has not extended time for her to appeal to the Upper Tribunal she will be an ineligible person for accommodation and support within the NIAA pursuant to Schedule 3 paragraph 7. That is because she would not be an asylum seeker as her claim will have been determined for the purposes of paragraph 17 (2) and she will therefore not be an asylum seeker.
That is not the end of the position so far as any possible requirement to make provision for her is concerned on the part of the defendant authority. It does follow that she would not be eligible under Section 23C of the Children Act 1989 to receive accommodation and support if permission to appeal out of time has not been granted. However under Schedule 3 paragraph 3A, the authority would be obliged to make provision if it was necessary (so the authority would consider) in order to prevent any breach of her Convention rights, including her right to a private life or indeed any of the other Convention rights. It follows that as things currently stand the position is that the local authority is obliged until the claimant is an adult to continue to provide accommodation and support, and will continue to do so for three weeks thereafter. They are obliged to have carried out an assessment and Pathway planning. But if the immigration status of the claimant does not change she will become ineligible subject to the question of whether she should receive accommodation and support in order to protect and enforce her Convention rights.
It is said therefore on the part of the defendant authority that Pathway planning would therefore potentially be a pointless exercise and wasteful of public resources if the defendant were required to do something which it might not have the power to do. Reliance is placed, by analogy, on R (Sharif) v Coventry County Council [2009] EWHC 2191, the decision of Mr Justice Beatson (at paragraph 31).
To summarise, the claimant is a person who has been entitled to accommodation and support in respect of which I will make a direction. And I will also declare that she has for at least 13 weeks been a looked-after child so that she is currently also an eligible child under Schedule 2 paragraph 19B (2) of the Children Act 1989. She will become a former relevant child under Section 23C (1) and, as such, she would, if her immigration status were to change, be somebody in respect of whom there would be a duty to provide her with assistance if the local authority considers her education, training or...
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