The King on the application of DK v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 19 July 2023 |
| Neutral Citation | [2023] EWHC 1833 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4140/2022 |
[2023] EWHC 1833 (Admin)
Sir Ross Cranston
Sitting as a High Court judge
Case No: CO/4140/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Irena Sabic KC and Alex Grigg (instructed by Youth Legal) for the Claimant
Hilton Harrop-Griffiths (instructed by Croydon LBC Legal) for the Defendant
Hearing dates: 27 June, 7 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
The claimant, DK, is an Albanian national, aged 23. He came to the UK and claimed asylum as an unaccompanied child. The defendant, the London Borough of Croydon (in this judgment called the Council), accommodated and looked after him as a child in need under the Children Act 1989. In May 2021, when he was 21 years old, the Council refused to support him any longer. It explained that under schedule 3 to the Nationality, Immigration and Asylum Act 2002 it no longer owed a duty to him under the Children Act 1989 since his asylum claim had been rejected and there was no barrier to his returning to Albania.
The claimant challenges the lawfulness of that refusal to provide him with a personal adviser and a pathway support plan as a care leaver on the basis that the Council failed to decide whether this denial of support to him was compatible with his rights under the European Convention on Human Rights (“ECHR” or “the Convention”). Specifically, the claimant submits, the Council should have conducted a “human rights assessment” of his needs. It is also said that the Council's refusal to support him was not compatible with his rights under articles 4 and 8 of the Convention. The claimant seeks a mandatory order for this support.
BACKGROUND
On arrival in the UK in September 2015 the claimant claimed asylum as an unaccompanied child. On his account he arrived in a lorry and then, with the help of some Albanians he met in a coffee shop, he made his way to the Home Office in Croydon, where he made the asylum claim.
Council's support until May 2021
The claimant also applied to the Council, which looked after him under the Children Act 1989. He lived in foster care accommodation which the Council provided and had the benefit of advice and support from its social workers. His social care records (which were examined by Kate Garbers in a report referred to later in the judgment) offer the following summary of his experiences in the years from his arrival.
In October 2015 the claimant was referred to the Competent Authority under the National Referral Mechanism for a determination of whether he had been trafficked into the UK. The Competent Authority made a negative Conclusive Grounds decision in April 2016.
In 2017 the claimant was reported missing from care and working in a car wash. By April 2017 he had moved into independent accommodation. There were reports that others were sleeping in his room while he slept on a couch. In May that year adults were again found in his accommodation. The television had been removed.
The claimant's evidence is that he was subject to “county lines” exploitation and was used by older men to transport drugs. He was recorded in July 2017 as having two mobile phones, “an indication of a young person involved in drug dealing”. Pathway plans throughout 2017 referred to the claimant as being easily manipulated. He was returned to foster care. In November 2017 he was absent from his foster home at least one night most weeks. He had money that he could not account for. “County lines” concerns were raised but dismissed in April 2018, on the basis that he would have more money and be missing for longer periods if that were the case.
When he turned 18, the Council arranged for him to move to accommodation in Plumsted, in south-east London, opposite a police station. He told a social worker that he felt safer there, because of the proximity to the police station. During this period he had the benefit of a “leaving care personal advisor”. In 2019 he was evicted from his accommodation owing to anti-social behaviour and having non-residents on site. Similar issues continued in his new accommodation. Drugs paraphernalia and concerns about gang affiliation continued to be raised. In November 2019 a gang of masked men was said to have forced him out of his accommodation.
The Home Office refused the claimant's asylum claim in April 2019. An appeal to the First-tier Tribunal was dismissed in August 2019, and his appeal rights were exhausted in February 2020.
Council's human rights assessment, May 2021
In view of those Home Office decisions about his asylum claim, the Council conducted a human rights assessment in May 2021. It was conducted according to the widely used template of the No Recourse to Public Funds (NRPF) Network. (In this judgment references to a “human rights assessment” are to an assessment along these lines.) The main assessment, dated by the team manager on 25 May 2021 (by the claimant on 7 June 2021), stated that the Council could not continue supporting the claimant indefinitely and that it was necessary to undertake a human rights assessment to determine reasons to either continue or discontinue support.
After setting out key information about the claimant and his immigration status, the human rights assessment stated that he was appeal rights exhausted and that its ability to continue to provide financial support was restricted to only that which was necessary to avoid a breach of the claimant's human rights. There was no legitimate reason for the claimant to remain in the UK from what he had told the assessing officer. Steps should be taken to return him to Albania, making use of the Home Office Assisted Voluntary Return Home Scheme, in order to better his future there. The team manager agreed with the assessment, adding that a personal adviser was available to assist the claimant with the application process for Home Office support as a failed asylum seeker.
Given the human rights assessment, the claimant was informed that he had to leave his Council supported accommodation. He did so in early July 2021.
Council's addendum human rights assessment, August 2021
Following this, in early August 2021 the claimant's solicitor informed the Council that the claimant had lodged a fresh claim with the Home Office. She requested that the Council should revisit its human rights assessment. In support of the request she submitted further information.
First, she had obtained a statement by Ms Flutra Shega, from the Shpresa Programme, a charity assisting Albanian-speaking refugees and migrants in the UK. Ms Shega said that she regarded the claimant as “easily led”. He presented with vulnerabilities and required intensive support. She had concerns about his mental health. A young man from Albania must be desperate to reveal his mental health issues, she explained, when these issues are hugely stigmatised within the Albanian community. He was at risk of exploitation by gangs.
Secondly, there was a statement from Mr Clinton Walker, an outreach manager with a youth drop-in centre in Croydon. He had worked with the claimant. He knew the claimant's mental health issues and was especially concerned about his vulnerability to gang and street violence. Mr Walker said that because of this he had offered the claimant a higher level of support.
Thirdly, Esme Madill of the Migrant and Refuge Children's Legal Unit at Islington Law Centre, who was assisting the claimant with his asylum claim, wrote about her concern about his exploitation by others and his mental health. She had instructed Dr Juliet Cohen, head of doctors at Freedom from Torture to prepare a report.
Fourthly, there was a statement from Tilda Ferree, the part-time coordinator for Breaking the Chains, a partnership project between the Migrant and Refugee Children's Legal Unit and the Shpresa Programme. From her work with the claimant, Ms Ferree said, she believed that the claimant continued to be a very vulnerable dependent young person who, without consistent proactive support, was at risk of disengaging from professionals completely, with potentially harmful consequences to his mental and physical health.
Finally, there was a witness statement from the claimant himself. He said that he had mental health issues, and that some four years previously he had experienced violence from a well-known gang. He wanted to attend college to study engineering.
On 11 August 2021 the Council produced an “Addendum to Human Rights Assessment May 2021”. This addendum assessment summarised and critiqued these submissions and decided to uphold its decision to withdraw the claimant's support. The assessment concluded:
“No new information has been provided to persuade a change about the decision made in respect of this HRA. A lot of assumptions have been made about [the claimant's] mental health but no professional diagnosis has been provided. We note that there has also been a lot of assumptions about what life would be like for [him] outside of the care of the local authority, with no evidence to support these concerns.”
The addendum human rights assessment then considered the implications of the claimant's immigration status and the recent fresh claim application to the Home Office.
“In reaching our decision we have also considered the acknowledgement of receipt email from the home office. The home office only acknowledged receipt of Further Submissions which they are yet to determine whether it amounts to a fresh claim. Further submissions do not in themselves confer a new status on a...
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