R Wishyar Mustafa v Kent County Council
| Jurisdiction | England & Wales |
| Judge | Markus |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWHC 2025 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/203/2018 |
| Date | 31 July 2018 |
[2018] EWHC 2025 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
UPPER TRIBUNAL JUDGE Markus QC
(sitting as a High Court Judge)
Case No: CO/203/2018
and
Ms Shu Shin Luh and Ms Grainne Mellon (instructed by Duncan Lewis) for the Claimant
Mr Stephen Knafler QC (instructed by Invicta Law) for the Defendant
Mr John Jolliffe (instructed by Government Legal Department) for the Interested Party
Hearing date: 4 th July 2018
Judgment Approved
Upper Tribunal Judge Markus QC:
The claimant was born on the 26th June 1998. He arrived in the UK, unaccompanied, on the 24 th June 2015 and claimed asylum at the port. His claim was rejected by the Secretary of State for the Home Department on the 9 th February 2016, and his appeal against that decision was dismissed by the First-tier Tribunal on the 8 th September 2016. On the 25 th September 2017 the claimant submitted further representations to the Secretary of State, stating that they constituted a “fresh claim with the aid of new evidence which has not already been considered and which, taken together with the previously considered material, create a realistic prospect of success”. The Secretary of State has not yet decided whether the claimant's further representations amount to a “fresh claim” in accordance with paragraph 353 of the Immigration Rules.
When he arrived in the UK the claimant was aged 16. The defendant local authority provided him with support under Part III of the Children Act 1989. When he turned 18, in June 2016, he became a “former relevant child” within the meaning of section 23C(1) of the Children Act and was provided with support accordingly. On dismissal of his asylum appeal in September 2016, the claimant ceased to be an asylum-seeker and, by virtue of Schedule 3 of the Nationality Immigration and Asylum Act 2002 (‘NIAA’), ceased to be entitled to support under the Children Act unless it was necessary for such support to be provided in order to avoid a breach of his rights under the European Convention on Human Rights (‘ECHR’) or the EU Treaties. Following an assessment in March 2017 the defendant decided that it was not necessary to do so and he was notified that support would be terminated on the 21 st April 2017.
After submitting the further representations to the Secretary of State on the 25 th September 2017, the claimant's solicitor invited the defendant to reassess the claimant's needs and reinstate his accommodation and support on the basis that he had made a claim for asylum and so was an asylum-seeker and thereby not excluded from Children Act support by reason of Schedule 3 of NIAA. The defendant responded that it owed no duty to the claimant unless and until the Secretary of State accepted the further representations as a fresh claim.
The claimant commenced these proceedings on two grounds. First it was claimed that, by reason of making further representations, the claimant was an asylum-seeker. Second, the claimant challenged the defendant's decision that it was not necessary to provide him with support under the Children Act in order to avoid a breach of his human rights.
Robin Purchas QC sitting as a Deputy High Court Judge granted permission on both grounds, following an oral hearing on the 26 th April 2018. He joined the Secretary of State to the proceedings as an Interested Party. After the grant of permission, the defendant carried out a further assessment confirming that it was not necessary to provide support in order to avoid a breach of the claimant's human rights. The claimant does not challenge that assessment and has withdrawn ground 2.
Legal Framework
Support for asylum-seekers and failed asylum-seekers
Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 (NIAA) provides for the withholding and withdrawal of support under specified enactments from certain categories of persons. The relevant provisions of the Schedule are as follows.
“1 (1) A person to whom this paragraph applies shall not be eligible for support or assistance under—
…
(g) section 17, 23C, 23CA, 24A or 24B of the Children Act 1989 (c. 41) (welfare and other powers which can be exercised in relation to adults),…
(l) a provision of the Immigration and Asylum Act 1999 (c. 33)….
…
3. Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of—
(a) a person's Convention rights, or
(b) a person's rights under the EU Treaties.
…
7. Paragraph 1 applies to a person if—
(a) he is in the United Kingdom in breach of the immigration laws within the meaning of section 50A of the British Nationality Act 1981, and
(b) he is not an asylum-seeker.
…
17 (1) In this Schedule—
“asylum-seeker” means a person—
(a) who is at least 18 years old,
(b) who has made a claim for asylum (within the meaning of section 18(3)), and
(c) whose claim has been recorded by the Secretary of State but not determined,
…
(2) For the purpose of the definition of “asylum-seeker” in sub-paragraph (1) a claim is determined if—
(a) the Secretary of State has notified the claimant of his decision,
(b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and
(c) any appeal which has already been brought has been disposed of.
(3) For the purpose of sub-paragraph (2)(c) an appeal is disposed of when it is no longer pending for the purpose of—
(a) Part 5 of this Act, or
(b) the Special Immigration Appeals Commission Act 1997 (c. 68).”
Section 18(3) provides:
“(3) A claim for asylum is a claim by a person that to remove him from or require him to leave the United Kingdom would be contrary to the United Kingdom's obligations under—
(a) the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol, or
(b) Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4th November 1950.”
Section 95 of the Immigration and Asylum Act 1999 (IAA) makes provision for support for destitute asylum-seekers, by the Secretary of State. Section 4 of IAA makes provision for failed asylum-seekers as follows:
“4. Accommodation.
…
(2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if—
(a) he was (but is no longer) an asylum-seeker, and
(b) his claim for asylum was rejected.
…
(4) The following expressions have the same meaning in this section as in Part VI of this Act (as defined in section 94)—
(a) asylum-seeker,
(b) claim for asylum, and
(c) dependant.
(5) The Secretary of State may make regulations specifying criteria to be used in determining–
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section.
…
(10) The Secretary of State may make regulations permitting a person who is provided with accommodation under this section to be supplied also with services or facilities of a specified kind…”
Section 94 includes the following definitions:
“(1) In this Part –
“asylum-seeker” means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined;
“claim for asylum” means a claim that it would be contrary to the United Kingdom's obligations under the Refugee Convention, or under Article 3 of the Human Rights Convention, for the claimant to be removed from, or required to leave, the United Kingdom;”
The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 are made under the powers in section 4(5) of IAA and include the following:
“3.—Eligibility for and provision of accommodation to a failed asylum-seeker
(1) Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4( 2) or (3) of that Act are–
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that–
(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d) he has made an application for judicial review of a decision in relation to his asylum claim–
(i) in England and Wales, and has been granted permission to proceed pursuant to Part 54 of the Civil Procedure Rules 1998,
(ii) in Scotland, pursuant to Chapter 58 of the Rules of the Court of Session 1994 or
(iii) in Northern Ireland, and has been granted leave pursuant to Order 53 of the Rules of Supreme Court (Northern Ireland) 1980; or
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998.”
Appeals in respect of asylum and human rights claims
Part 5 of NIAA makes provision...
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