The King (on the application of) BCD by his Litigation Friend EFG) v Birmingham Children's Trust
| Jurisdiction | England & Wales |
| Judge | Tindal |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWHC 137 (Admin) |
| Docket Number | Case No. CO/3074/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 137 (Admin)
HIS HONOUR JUDGE Tindal
(Sitting as a Judge of the High Court)
Case No. CO/3074/2021
THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Civil Justice Centre
33 Bull Street
Birmingham
Chris Buttler KC and Katy Sheridan (Instructed by Central England Law Centre) appeared on behalf of the Claimant
Joshua Swirsky (Instructed by Legal Services Department) appeared on behalf of the Defendants
Hearing Date: Tuesday 22 nd November 2022
HHJ
Introduction
Are the needs of British children different from those of foreign-born children ? That is the contentious question which the Defendant, Birmingham Children's Trust, argues lies at the heart of this claim for judicial review by the Claimant, a seven-year old British child (anonymised as ‘BCD’), through his Jamaican-national grandmother (anonymised and to whom I shall refer as ‘EFG’). Many people would have strong political views about that question, favouring one answer or the other. Some would say a child's needs are their needs irrespective of their nationality and all children and their needs should be treated the same. Others would say there are fundamental differences between British children and foreign-national children and it would be entirely wrong to treat them in the same way. However, the task of the Court is not to adjudicate political issues, but to decide whether conduct is lawful. This case raises important legal issues about how local authorities should meet the needs of children in families ineligible for welfare benefits — as the Home Office terms it in immigration leave conditions: ‘No Recourse to Public Funds’ (‘NRPF’). The Defendant does not dispute the Claimant's evidence from academics which I summarise below that NRPF conditions limit how far children's needs are met, causing a short and long-term impact on their welfare.
EFG arrived in the UK from Jamaica in October 2020 to take over care of the Claimant and his two older siblings when their mother was terminally ill with cancer. She tragically died on 29 th November 2020. EFG was on a visitor's visa with a NRPF condition. As she could not access mainstream benefits, she applied to the Defendant for support under s.17 Children Act 1989 (‘CA’). The claim now focusses on the Defendant's payment of s.17 cash support from February to August 2021 (as later increased due to another aspect of the claim) of £196.24 per week: effectively the same as support at the time to a similarly-composed asylum-seeking family. Therefore, the claim does indeed partly concern whether it is lawful for a local authority to pay such a ‘NRPF’ foreign national parent or carer of British children the same level of support as such a parent or carer of non-British children, such as an asylum-seeking family. The Claimant contends this is unjustified similar treatment of different cases and is discriminatory under Art.14 of the European Convention of Human Rights (‘ECHR’) and so unlawful under s.6 Human Rights Act 1998 (‘ HRA’). The Defendant (a public authority under s.6 HRA standing in the shoes of the City Council in providing social care services under the CA to children in Birmingham), contends that it treats British and foreign national children the same as their needs are the same, hence its framing of the question with which I began. However, in fact over the litigation, the Claimant's case has been put in three different ways.
In impressive Skeleton Arguments (for the Defendant by Mr Swirksy and for the Claimant by Mr Buttler KC assisted by Ms Sheridan) the focus was the Claimant's British nationality. He relied on obiter comments by Lady Hale in R(HC) v DWP [2017] 3 WLR 1486 (SC) about a local authority's responsibility to ‘children in need’ under s.17 CA at p.46 (my underline):
“….[T]hese are British children, born and brought up here, who have the right to remain here all their lives; they cannot therefore be compared with asylum-seeking children or the children of asylum-seeking parents, who may end up with no or only a limited right to remain. The [authority] will no doubt also wish to take into account the impact upon the proper development of these children of being denied a level of support equivalent to that of their peers, that is, the other British children around them whose families are dependent on income-related benefits.”
However, the Claimant's original Statement of Facts and Grounds was put rather differently:
“The Defendant has treated the Claimant and his siblings, British children, identically to children to whom the Policy applies but [who] have precarious immigration status. The Supreme Court [in R(HC)] has made it clear that the two groups ‘cannot be compared’. The Claimant is therefore in a significantly different situation to a child with precarious immigration status being provided for under s.17 CA.” (my underline)
Therefore, the contended difference in the original claim was not so much the Claimant's nationality as such, but rather that it put him in a different situation from children with precarious immigration status. The key difference was the children's ‘immigration statuses’.
Moreover, in oral submissions, Mr Buttler put the Claimant's case slightly differently again (with no objection from Mr Swirsky), namely that the relevant comparison was between children cared for by ‘NRPF’ foreign nationals with a right to be in the UK on one hand and children of such adults with no right to be in the UK on the other: i.e. the ‘immigration status’ of the children's carer (or indeed parent). Mr Buttler skilfully argued that whichever way the comparison was put, similar treatment of the Claimant with comparators was discriminatory. Mr Swirsky, equally skilfully, argued whichever way it was put, it was not discriminatory.
R(HC) was a challenge to Department of Work and Pension (‘DWP’)-originated regulations disqualifying from income-related benefits the foreign national carer of a British child who fell within the scope of the EU Law ‘ Zambrano principle’ (deriving from the EU Court of Justice decision Ruiz Zambrano v ONE [2012] QB 265 (CJEU)). As explained in R(HC), the ‘Zambrano principle’ is that non-EU (or ‘third country’) nationals have the right to remain in an EU country (‘ Zambrano rights’) if they are a carer for an EU-citizen child who would otherwise be required to leave the EU and so lose their own EU Treaty rights.
However, the Court in R(HC) confirmed those EU Law Zambrano rights do not include a right to mainstream welfare benefits, merely a level of support sufficient to avoid the children having to leave the EU. This also did not violate Art.14 (read with Art.1 Protocol 1) ECHR, as differential treatment was justified as proportionate to reduce so-called ‘benefits tourism’. However, Lord Carnwath and Lady Hale also considered the role of a local authority under s.17 CA, which empowers it to support ‘children in need’ in their area (whether British or foreign national) when their parent or carer is a ‘NRPF’ foreign national with no leave or with limited leave to remain in the UK. However, whilst EFG like HC herself, is a Zambrano carer, it is not now suggested the case turns on that specific status. Indeed, following Brexit, ‘ Zambrano rights’ are being phased out under the ‘EU Settlement Scheme’ (‘EUSS’). In October 2022, the Home Office accepted EFG had ‘pre-settled status’ and it is now agreed she has been at all times been lawfully in the UK (but there was some confusion at the time).
The discrimination alleged to breach Art.14 ECHR in this case is neither ‘direct discrimination’ (i.e. treating one group less favourably because of a prohibited ground than another group e.g. having different rules for women and men); nor ‘indirect discrimination’ (i.e. applying an apparently neutral policy to two groups, one of which is disproportionately affected e.g. having the same rule for men and women which disadvantages women more). Instead, this Art.14 ECHR discrimination claim is of so-called ‘ Thlimmenos discrimination’ (c.f. Thlimmenos v Greece (2000) 31 EHRR 15 (ECtHR)), namely ‘without an objective and reasonable justification, failing to treat differently persons whose situations are significantly different’. In oral submissions Mr Buttler focussed on two ‘Art.14 statuses’ – the Claimant's nationality and EFG's immigration status. However, on nationality, he focussed on British immigration rights of residence whilst Mr Swirsky focussed on nationality generally. So, in fairness to both, I have split the ‘nationality’ comparison into two, making three comparisons, consistent with the three different ways in which the claim has been put, as described above:
8.1 Firstly, the comparison between British and non-British children each cared for by a NRPF foreign carer with leave. This compares purely the children's nationalities, relying on Lady Hale's comments in R(HC) at p.46 (they are also relied on with (2)).
8.2 Secondly, the comparison between British children and (foreign) asylum-seeking and other ‘precarious immigration status’ children each cared for by a similar foreign carer This argument compares children's nationalities' through their immigration statuses.
8.3 Thirdly, treating children cared for by foreign national adults with the right to be in the UK the same as children cared for by foreign national adults without the right to be in the UK. This argument compares the carers' immigration status.
Following an assessment in January 2021, as well as housing and other costs, the Defendant made payments to EFG under its (now former) NRPF Policy (‘the Old NRPF Policy’):
9.1 From 19 th February to 24 th September 2021, EFG received £165.39 per week, which on issue of this Claim in September...
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