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14/12/2008

Payments to return and Art 8.

AC, R (on the application of) v Birmingham City Council [2008] EWHC 3036 (Admin) was a judicial review which concerned funding for an illegal overstayer and her family under s.17 Children Act 1989, although it would also apply for s.20 funding.

The Claimant had come to the UK in 2000 with her oldest child. She overstayed on a family visit 6 month visa and susequent appeals were refused by 2003. Since then she had a further three children. Following domestic violence in 2007, the Claimant lived with her aunt. This ended in March 2008, when Birmingham accommodated her and the children under s.17 Children Act 1989 on conditions. The Claimant has applied for indefinite leave on the basis that her oldest child has been resident in the UK for more than 7 years.

Birmingham did not dispute that the children were children in need. But:

The decision of the local authority follows an assessment carried out by the local authority, which looked at and covered a number of matters and led to a decision by the relevant officer to the effect that the local authority would offer assistance by way of airfares to the claimant and her children so that they could travel to Jamaica, and it may provide a grant to assist their integration there. Further, the local authority indicated that if that offer was accepted, the current provision of accommodation and support, which was put in place pending that decision by the local authority, would be maintained so long as arrangements for the return were progressing.

The Claimant applied for judicial review. The issue was that the Local Authority’s decision fell under Para 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002, which provides an exception to the exclusion from support of people unlawfully in the UK:

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, […]

The Claimant pointed to the Home office policy not to deport families where a child had been resident in the UK for longer than 7 years, as set out and clarified in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906. Birmingham, it was contended, had not had regard to this policy.

Birmingham argued that

1. The decision on the extent of exercise of a power necessary to avoid an Art 8 breach was properly that of the local authority.

2. As a matter of law Birmingham didn’t have to consider the Home Office policy or its underlying reasons in making its decision, R (Grant) v Lambeth London Borough Council [2005] 1 WLR 1781 pleaded.

3. Birmingham was entitled to take available resources into account in its decision.

Held: Although the LA was not bound by the Home Office policy, the LA cannot simply ignore the underlying issues as to whether or not convention rights would be interfered with. Like a Court, the LA has a duty to have regard to the reasons underlying the presumption and approach taken by the Secretary of State. Birmingham had not addressed those reasons, had in fact ignored them.

Birmingham had argued that it was entitled to take into account different factors, over and above those considered by the Secretary of State, including financial resources. That argument had not been supported which any indication or evidence of such a consideration, which suggested remitting for fresh decision. However:

A problem with the argument is that the determination required by paragraph 3 of Schedule 3 is not one as to the allocation of moneys, but as to whether or not what is proposed would amount to a breach of Convention rights. It is therefore only concerned with the allocation of moneys in the limited sense that the relevant provisions lead to a conclusion that the local authority only have to and can only expend moneys to the extent that the relevant line is crossed to avoid a breach of Convention rights [para 48]

In any case, Birmingham had not taken the reasons for the 7 year policy into account. Decision set aside.

Birmingham CC had the cheek to ask for no order as to costs on the basis that this affected a lot of other cases! Birmingham Law Centre got costs, but there was a worrying sugestion that both the Court and the Law Centre’s counsel thought the Law Centre would get costs at the same rate if paid by the LSC or the other party. For any counsel reading this, this is most certainly not the case. The LSC pays at roughly half the inter-partes rate. For struggling law centres, or legal aid solicitors, this is an important point we would ask you to make clear to the Court…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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