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Not their decision to make

Birmingham City Council v Clue [2010] EWCA Civ 460

Ms Clue was a Jamaican national. She and her oldest daughter were given leave to come to the UK in 2000 as visitors. After 6 months, she applied for leave as a student, which was refused after appeal in 2003. No steps were taken to remove Ms Clue or her daughter. Ms Clue had 3 children while in the UK, whose father was a UK citizen and who where therefore UK citizens. The children’s father supported Ms Clue until 2007. In October 2007, Ms Clue applied for indefinite leave to remain on the basis that the oldest child had been living in the UK for more than 7 years. She returned to live with her aunt (in Birmingham).

She then applied to Birmingham City Council for accommodation and assistance under s.17 Children Act 1989. Birmingham declined to do so on the basis that Ms Clue and her family could return to Jamaica, where they could continue to enjoy a family life. For this reason there was no breach of Art 8. Birmingham offered a payment for travel and a resettlement grant.

Ms Clue made a claim for judicial review, which was upheld:

Birmingham had erred in law in failing to take account of the reasons underlying DP 5/96 (in its amended form) and the presumption to which it gave rise that, where a child of a family had been resident in the UK for 7 years, indefinite leave to remain would be granted in all but exceptional cases. DP 5/96 was the policy of the Secretary of State for the Home Department applicable to children who had been in the UK for 7 years.

Birmingham appealed. The Secretary of State for the Home Department and Shelter came in as interested party and intervener respectively.

Ms Clue was granted indefinite leave in October 2009, making the appeal academic, but it proceeded on its relevance for other cases.

The Court noted that the Home Office policy DP 5/96 in force at the time of Birmingham’s decision was that, where a child had lived in the UK for more than 7 years:

For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence.

It was under this policy that Ms Clue had applied and it was this policy to which Birmingham ought to have had regard.

Held:

a) Unless the application for leave to remain is clearly hopeless or abusive, it is not for the Council to consider the merits of the application for leave to remain, where made explicitly or implicitly on convention grounds (which in relation to the 7 years policy was clearly the case). This is properly the province of the Secretary of State to determine.

b) Where the application would be terminated should the applicant leave the country, as here, the Council’s decision would effectively end the application for leave to remain. This was not the Council’s decision to make, as above.

c) The financial situation of the Council is irrelevant. Where the applicant (i) is unlawfully present in the UK within the meaning of para 7 of Schedule 3 Nationality, Immigration and Asylum Act 2002; (ii) is destitute and would (apart from Schedule 3) be eligible for services of the kind listed in para 1 of Schedule 3; and (iii) has made an application to the Secretary of State for leave to remain which expressly or implicitly raises grounds under the Convention, the demands on the Council’s resources can play no part in its assessment of need:

Were the position to be otherwise, a person’s application for leave to remain would, in effect, be rejected on the basis that a local authority applies article 8(2) on one set of criteria (weighing the various calls on its budget), where the same application might be allowed by the Secretary of State (the person whose statutory function it is to determine such applications) on a wholly different set of criteria (weighing the need to maintain a firm and orderly immigration policy). That is obviously incoherent. But it is also unfair and arbitrary. It is unfair and arbitrary because it means that the outcome of a person’s application for leave to remain depends on the budgetary priorities of the particular local authority to which the claim for assistance is made. The outcome of the application for leave to remain may be different if the claim for assistance is made to a different local authority whose budgetary priorities are different. The disposal of applications for leave to remain should not depend on the vagaries of the budgetary considerations of local authorities.

d) Birmingham’s human rights assessment in the case was unlawful. Firstly, it took no account of the application for leave to remain. Secondly, the whole emphasis of the assessment was on the right to family life, “there is no indication that Birmingham recognised that to require the claimant and her family to return to Jamaica would interfere with the family’s right to private life (their relationships and social, cultural and family ties in the UK) or that they understood that the private life rights of children who were born in the UK or came here at an early age were of particular weight”. Accordingly, the human rights assessment was inadequate.

The Court acknowledged that:

The facts of the present case have exposed the problem that has been created for local authorities by delays on the part of UKBA in dealing with applications for leave to remain by persons in the position of the claimant and her family. In an ideal world, the UKBA would be made aware of all cases which fall into this category and prioritise them so as to reduce the period during which assistance has to be provided by the local authority pending determination of the application for leave to remain.

The Secretary of State had stated that such cases were to be prioritised and that should go some way to meeting the problems.

Appeal dismissed.

It should be noted that, at least for the purposes of this case, the Court accepted a distinction between cases where a person alleges that the consequences of return would be a breach of his article 8 rights in the UK: for example, it would involve an interference with his family life in the UK by breaking up his family, or it would result in an interference with his private life in the UK (Domestic cases); and cases where a person alleges that the consequence of a return would be a breach of Convention rights in the country of origin (Foreign cases). Although hybrid cases are acknowledged to exist, this case fell wholly under the ‘Domestic case’ type at the decision is on that basis.

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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