A question of application

The Court of Appeal has decided that a local authority could not refuse to provide accommodation to a foreign national and her family under s.17 Children Act 1989 on the basis that she could return to her country of origin when her application for indefinite leave to remain in this country was outstanding. Barristers at Arden Chambers examine the ruling.

Local authorities are under a duty to: (i) safeguard and promote the welfare of children within their area who are in need; and (ii), so far as is consistent with that duty, to promote the upbringing of such children by their families. The duty may be discharged by the provision of accommodation to a children’s family under ss.17(1),(6) Children Act 1989.

A local authority will not, however, owe such a duty to a person if s/he is present in the UK unlawfully and is not an asylum seeker, except where the exercise of the duty is necessary to prevent a breach of the applicant’s rights under the European Convention of Human Rights (“the Convention”): Sch.3, Nationality and Immigration Act 2002.

A public body does not owe a duty under the Convention to provide support to foreign nationals who are able to return home without impediment: R (Kimani) v Lambeth Borough Council [2003] EWCA Civ 1159.

Facts

In Birmingham City Council v Clue [2010] EWCA Civ 460, the claimant, a Jamaican national, entered the UK in 2000 with her daughter and they were both granted leave to remain for six months. Prior to the expiry of her visa the claimant applied for leave to remain as a student. Although this application was refused, the claimant remained in the UK and started a relationship with a British national. They moved in together and had three further children.

In 2007, the relationship ceased and the claimant, and her children, went to live with her aunt who also resided in the UK. In the meantime the claimant made an application for indefinite leave to remain in the UK.

In March 2008, the claimant applied to the authority for accommodation. On 14 August, 2008, the authority notified the claimant that it would not provide her family with accommodation under s.17 of the 1989 Act, because she was in the UK unlawfully and the exercise of the duty was not necessary to prevent a breach of her rights under Article 8 of the Convention. This was because the claimant could return to Jamaica with her children where their family life would not be disrupted. If required, the authority would provide assistance to enable them to return to, and resettle, in Jamaica.

The decision letter, however, did not take into consideration the fact that the claimant’s application for indefinite leave to remain had not been decided.

The claimant successfully pursued a claim for judicial review. The Administrative Court held in November 2008, that the authority had acted unlawfully by not having regard to the fact that the claimant was likely to be successful in her application for indefinite leave to remain. The authority appealed against this decision.

The Court of Appeal

The appeal was dismissed. It was not permissible for the authority to make a decision, where the claimant had an application for leave to remain in the UK outstanding, that there was no risk of the claimant’s Convention rights being breached on the basis that she could return to Jamaica where she would not be destitute and could live with her family.

Parliament could not have intended to confer a general power on authorities to pre-empt a decision by the Secretary of State, as a negative decision by the authority would make it impossible for the applicant to pursue his/her application.

To allow otherwise would have the effect of the authority making such a decision themselves. It followed that, save in hopeless or abusive cases, an authority was not entitled to decide how they thought the Secretary of State would determine an application under the immigration rules.

This article was written by barristers at Arden Chambers.