B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE BUXTON
and
LORD JUSTICE
MAURICE KAY
____________________
|
M
|
Appellant
|
|
- and
|
|
|
THE LONDON BOROUGH OF
ISLINGTON -and- THE SECRETARY OF STATE FOR THE HOME
DEPARTMENT
|
Respondent
Interested
Party
|
____________________
(Transcript of the Handed Down Judgment of
Smith
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____________________
Mr Stephen Knafler (instructed by Pierce Glynn for M)
Mr Bryan
McGuire (instructed by The London Borough of Islington for The London Borough of
Islington)
Ms Kristina Stern (instructed by the Treasury Solicitor) for the
Interested Party
____________________
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Buxton :
The facts and issues
- The claimant, Mrs M, is a national of Guyana. She
came to the UK in 1998 on a visitor's visa, staying here after that visa
expired. It is accepted that both at the time of the hearing before the judge
and at the time of the present hearing she was and is unlawfully in this
country. She is, however, the subject of current immigration proceedings. An
appeal against the Secretary of State's refusal of her application for
indefinite leave to remain was rejected by an Adjudicator on 23 September
2003. She has however been granted permission by the Immigration Appeal
Tribunal to appeal against that decision; we understand that the appeal is to
be heard on 23 June 2004.
- That application on Mrs M's part is largely based on
her family circumstances. In November 1999 Mrs M married Mr M, a native of
Antigua with indefinite leave to remain in this country, and set up home with
him in his council flat in the area of the respondent council, the London
Borough of Islington [Islington]. On 17 October 2001 a daughter [the child]
was born. By the operation of section 1(1)(b), read with section 50(2), of the
British Nationality Act 1981 the child is a British citizen. She was not only
born in the United Kingdom, but born there in lawful wedlock to a father who
has indefinite leave to remain here.
- Unfortunately, the marriage did not prosper, and in
about August 2002 Mr M left the claimant. The tenancy of the flat was
transferred to Mrs M, but she is unable to pay the rent, and has no means of
subsistence for herself or the child apart from the provision that Islington
has, very properly, made pending the outcome of the present proceedings. As to
the husband, we were told from the bar that arrangements have been made for
contact between him and the child, arrangements that Mr M has in the main
fulfilled.
- Again very properly, the situation of Mrs M and the
child attracted the concern of Islington's social services department, which
embarked upon an assessment of the child's needs under the provisions of the
Children Act 1989. On the basis of that assessment Islington concluded that
the needs of the child could be met by providing Mrs M and the child with
tickets to enable Mrs M to return to her family in Guyana. That step was not,
in itself, outside Islington's proper powers under the Children Act: see R
v Hammersmith & Fulham LBC ex p D [1999] 1 FLR 642, per Kay J.
However, it then came to be accepted that, as set out above, Mrs M was
unlawfully in the United Kingdom. That was thought by Islington to impact on
its Children Act obligations towards the child, by the operation of Schedule 3
to the Nationality, Immigration and Asylum Act 2002 [Schedule 3] and the
Witholding and Withdrawal of Support (Travel Assistance and Temporary
Accommodation) Regulations 2002 [the Regulations]. I shall have to return to
these provisions in much more detail later in the judgment. On the basis of
its understanding of them, Islington sent a long and detailed letter to the
claimant's solicitors on 27th March 2003, the salient points of
which were:
- Islington maintained its earlier decision "to offer [Mrs M]
and [the child] one way plane tickets to Guyana because [the child's]
welfare would be best safeguarded and promoted by being cared for in Guyana
where she has a Grandmother, Aunt, Uncle and cousins, and therefore a
greater prospect of family support than she has in the UK"
- If Mrs M nonetheless remained in the UK in order to pursue her
immigration proceedings, "circumstances could very well arise whereby mother
and child might be separated in breach of Article 8 if [Mrs M] remained in
this country pursuing your application to remain here without any means of
supporting your child. Without deciding what the authority would do in
circumstances which have not arisen, there would be a real prospect that the
authority would reach a decision that the child had to be taken into care as
a means of addressing its [scil., the child's] needs".
- Nonetheless, Islington had "not made any decision as to what
would happen in the event that the offer was refused even after having been
found by the court to have been lawfully made. This is not a case where a
decision has been made, still less a threat made, to take [the child] into
care. In the event that [Mrs M] refuse[s] to accept the offer made even
following court proceedings, the Islington would continue to assess what is
in the best interests of [the child] in the light of developing
circumstances."
- Mrs M has throughout adamantly opposed any return to
Guyana either for herself or for the child. In these proceedings she seeks an
order quashing the decision to offer tickets to Guyana contained in
Islington's letter of 20 January 2003; and directions that Islington should
further assess the needs of Mrs M and the child under section 17 of the
Children Act, and pending the completion of that assessment provide Mrs M with
accommodation and maintenance.
The legislation
- The enquiry starts with Islington's powers and
duties under section 17 of the Children Act. The most immediately relevant
provisions are in section 17 (1)-(3), which read:
(17)
(1) It shall be the general duty of every local authority (in
addition to the other duties imposed on them by this
Part)-
(a) to safeguard and promote the welfare of children within
their area who are in need; and,
(b) so far as is consistent with that duty, to promote the
upbringing of such children by their families, by providing a range and
level of services appropriate to those children's
needs.
(2) For the purpose principally of facilitating the discharge
of their general duty under this section, every local authority shall have
the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of
functions conferred on them by this section may be provided for the family
of a particular child in need or for any member of his family, if it is
provided with a view to safeguarding or promoting the child's welfare.
There is no dispute that the child in the present case is "in need".
- The local authority's position has however been
severely affected by, and these proceedings address, Schedule 3. That is
entitled "Withholding and Withdrawal of Support", and by § 1(1) provides that
"A person to whom this paragraph applies shall not be eligible
for support or assistance under"
and there are then set out a very large number of statutory provisions that
otherwise provide health, welfare and housing benefits. Importantly for
present purposes there is included, under § 1(1)(g):
"section 17, 23C, 24A or 24B of the Children Act 1989 (welfare
and other powers which can be exercised in relation to adults)"
- Schedule 3 then goes on to indicate various
exceptions to the blanket exclusion of rights under the listed statutes. The
exceptions relevant to our case are to be found in §§ 2 and 3:
" 2(1) Paragraph 1 does not prevent the provision of support or
assistance-
(a) to a British citizen, or
(b) to a child.
3. 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 …"
- Schedule 3 then goes on to set out the four classes
of persons who are by paragraph 1, and subject to the above exceptions,
rendered ineligible for the statutory benefits that Schedule 3 addresses, and
then makes further provision for the limited amount of assistance that local
authorities are permitted to give to persons falling within those categories.
Those provisions are important in the determination of this appeal, and need
to be set out in full:
" First class of ineligible person: refugee status
abroad
4 Paragraph 1 applies to a person if he-
(a) has refugee status abroad, or
(b) is the dependant of a person who is in the United Kingdom
and who has refugee status abroad.
(2) For the purposes of this paragraph a person has refugee status abroad
if -
(a) he does not have the nationality of an EEA State,
and
(b) the government of an EEA State other than the United Kingdom
has determined that he is entitled to protection as a refugee under the
Refugee Convention.
Second class of ineligible person: citizen of other EEA
State
5 Paragraph 1 applies to a person if he-
(a) has the nationality of an EEA State other than the United
Kingdom, or
(b) is the dependant of a person who has the nationality of an
EEA State other than the United Kingdom.
Third class of ineligible person: failed
asylum-seeker
6 (1) Paragraph 1 applies to a person if-
(a) he was (but is no longer) an asylum-seeker, and
(b) he fails to cooperate with removal directions issued in
respect of him.
(2) Paragraph 1 also applies to a dependant of a person to whom that
paragraph applies by virtue of sub-paragraph (1).
Fourth class of ineligible person: person unlawfully United
Kingdom
7 Paragraph 1 applies to a person if-
(a) he is in the United Kingdom in breach of the immigration
laws within the meaning of section 11, and
(b) he is not an asylum-seeker.
Travel assistance
8 The Secretary of State may make regulations providing for
arrangements to be made enabling a person to whom paragraph 1 applies by
virtue of paragraph 4 or 5 to leave the United Kingdom.
Temporary accommodation
9 (1) The Secretary of State may make regulations providing for
arrangements to be made for the accommodation of a person to whom paragraph 1
applies pending the implementation of arrangements made by virtue of paragraph
8.
(2) Arrangements for a person by virtue of this paragraph-
(a) may be made only if the person has with him a dependant
child, and
(b) may include arrangements for a dependant child.
10 (1) The Secretary of State may make regulations providing for
arrangements to be made for the accommodation of a person if-
(a) paragraph 1 applies to him by virtue of paragraph 7,
and
(b) he has not failed to cooperate with removal directions
issues in respect of him.
(2) Arrangements for a person by virtue of this paragraph-
(a) may be made only if the person has with him a dependant
child, and
(b) may include arrangements for a dependant child."
- The regulation-making power has been exercised by
the Secretary of State by the Regulations. The relevant parts of the
Regulations read as follows:
"Power for local authorities to arrange travel and provide
accommodation
3 (1) A local authority may make arrangements ("travel arrangements")
enabling a person with refugee status abroad or who is an EEA national to
leave the United Kingdom to travel to the relevant EEA State.
(2) A local authority may make arrangements for the accommodation of a
person in respect of whom travel arrangements have been or are to be made
pending the implementation of those arrangements.
(3) A local authority may make arrangements for the accommodation of a
person unlawfully in the United Kingdom who has not failed to co-operate with
removal directions issued in respect of him.
(4) Arrangements for a person by virtue of paragraph (2) or (3)-
(c) may be made only if the person has with him a dependant
child, and
(d) may include arrangements for that child
Requirements relating to travel and accommodation arrangements
4 (1) Travel arrangements and arrangements for accommodation must be made
so as to secure implementation of those arrangements at the lowest practicable
cost to the local authority.
(2) Subject to the requirements in paragraph (1), travel arrangements made
in respect of a person must be made so that the person leaves the United
Kingdom as soon as practicable.
(3) Travel arrangements and arrangements for accommodation may not include
cash payments to a person in respect of whom arrangements are made and must be
made in such a way as to prevent the obtaining of services or benefits other
than those specified in the arrangements.
(4) A local authority must have regard to guidance issued by the Secretary
of State in making travel arrangements and arrangements for
accommodation."
The proceedings before Wilson J
- It was assumed on all sides before Wilson J, and
he accepted, that the issue was to be determined by the construction, or at
least the application, of the Regulations. Mrs M's contention was that the
Regulations made it unlawful for Islington to perform its section 17 duty by
offering tickets for a return to Guyana. Islington had the power under the
Regulations, which in this case it should exercise, to accommodate Mrs M and
the child until the outcome of Mrs M's immigration proceedings was known.
Wilson J, at § 45, rejected that contention. He held that if Islington
properly concluded that it would safeguard and promote the welfare of the
child to return with Mrs M to Guyana, it would not be unlawful for Islington
"at least to offer tickets for travel": which latter, the judge concluded, was
all that Islington had so far done. He was fortified in that view by his
conclusion, at § 36, that it would not be lawful under the Regulations for a
local authority to offer a person in the fourth class, a person unlawfully in
the United Kingdom, not travel but accommodation for any more than a short
period pending removal, such as the 21 days that Islington had originally
offered to Mrs M.
- The judge however went on to criticise Islington's
procedure in coming to the decision that an offer of travel would meet
Islington's obligations. He drew attention to §3 of Schedule 3, set out above,
which permitted the exercise of a section 17 power if such was necessary to
avoid a breach of a person's Convention rights. In the judge's view, the
assessment conducted by Islington had not given attention to the mutual rights
of the child and of Mr M for family contact with each other; and had
inadequately investigated the actual prospects for the child's welfare were
she to be returned to Guyana. He therefore concluded, at §59:
"For each of those two reasons Islington's assessment was
flawed. Its decision to offer tickets under s.17 must be quashed and
Islington must reconsider what decision to make about any exercise of its
powers for the benefit of the child, including in relation to the claimant,
under that section."
- Mrs M does not of course quarrel with that
conclusion so far as it goes; but by this appeal she contends that the judge
should have gone considerably further. As the argument in the appeal
developed, it became clear that the parties were principally concerned to have
guidance as to how Islington should perform the reconsideration ordered by
Wilson J. The precise terms of the relief sought may not therefore be of
central importance. However, after discussion with Mr Knafler, for Mrs M, I
think that the substance of Mrs M's case can be expressed in terms of a
declaration that Schedule 3 and the Regulations permit local authorities to
provide accommodation to persons unlawfully in the United Kingdom who have
dependent children, and require that power to be performed when the family is
destitute and has no other recourse. As a result, it was not open to
Islington, and until failure to comply with removal directions is not open to
Islington, to offer tickets to the home country against the wishes of Mrs M.
- This issue, and the statutory background against
which it is ventilated, has given rise to a series of problems, going some way
beyond the case as it appeared before the judge, and all of which have been
explored before us with considerable force and subtlety. I have concluded that
the judge was correct in remitting the case to Islington. However, that
conclusion has to be reached through a detailed examination of the statutory
provisions with which those working in this difficult field now have to
wrestle, which in my view impose a scheme somewhat different from that which
was debated before the judge. And that examination involves the resolution of
a number of essentially preliminary points that I will address first. These
are: the ambit of § 1(1)(g) of Schedule 3; the respective roles of the
Secretary of State and of the local authority; and position of the child as a
British citizen.
The ambit of §1(1)(g) of Schedule 3
- It was assumed without question before the judge,
and the judge accepted, that the issue for him was as set out in §1 of his
judgment:
"What powers do local authorities now have to provide
accommodation for an adult who, not being an asylum-seeker, is unlawfully
present in the United Kingdom and who is caring for a child?"
- I was initially concerned, and still am concerned,
by this formulation. The local authority only becomes involved, at least in
the terms of this case, because it is confronted by a child in need. It
is accepted in the circumstances of this case that its powers, either original
or as modified by Schedule 3 and the Regulations, can only be exercised in the
context of the interests of the child. When the judge ordered Islington to
reconsider its decision, at least in relation to conditions in Guyana he did
so because Islington had not sufficiently considered whether to live there
would safeguard and promote the child's welfare. Save as it impacted upon the
welfare of the child, the welfare of the mother would be an irrelevant and
unlawful consideration for Islington to take into account. Paragraph 1(1)(g)
of Schedule 3 addresses those cases where under Children Act provisions
support or assistance "can" be provided to an adult: either in his capacity as
such, as a person formerly in care, under ss 23C, 24A and 24B; or as part of
the provision of services to the child's family or a member of it under
section 17(3), though always in such case with a view to safeguarding and
promoting the child's welfare. But why should it be assumed in a case such as
the present, where as a matter of fact the child cannot be accommodated
without accommodating the mother, that the disqualification of the mother from
any assistance under the Children Act must by the same token deprive the child
of the assistance to which she is entitled under section 17?
- In our case, Mrs M is not eligible for support or
assistance under welfare powers that can be exercised in relation to adults
under section 17 of the Children Act because she is a person in the fourth
class, unlawfully in the United Kingdom. That proposition says nothing, as a
matter of law, about the provision of support or assistance to the child.
However, it is contended that if the local authority performs its duty by
accommodating the child, it will thereby unavoidably break its duty under §1
of Schedule 3 of witholding accommodation from the mother: because in
practice, bearing in mind the local authority's duty under section 17(1)(b) to
promote the upbringing of children by their families, the child's
accommodation will be with her mother. That would seem on its face to be
inconsistent with § 2(1)(a) and (b) of Schedule 3. Paragraph 1 does not
prevent the provision of support or assistance to a British citizen or to a
child. But in our case, that is exactly what §1 appears to do. The daughter's
status as a British citizen, with a right to remain in this country, is
completely ignored. Her status as a child does reappear in the equation under
the accommodation provisions of §10 of Schedule 3 and Regulation 3(3). That,
however, is not in her own right, but as the dependent child upon whom the
mother's rights in turn depend. And she serves that function not because she
is a child in need, owed duties under the Children Act, but because she
is dependent on the person who (unlike herself) is unlawfully in the United
Kingdom: in just the same way, but only in the same way, as for instance the
presence of a dependent child would activate the provisions of §§ 9 and 10 of
Schedule 3 in the case of a person rendered ineligible by § 1(1)(a) of
Schedule 3 for the provision of accommodation in case of illness under section
21 of the National Assistance Act 1948.
- The approach adopted by the judge, and by all
counsel before him, therefore produces some surprising results. In particular,
although the point of departure is the needs of the child, the duty of the
local authority to provide for those needs depends on whether the child
happens to live in a household headed by a person falling into one of the
ineligible categories in Schedule 3. And the protection of British citizens
from the removal of services under Schedule 3 depends, in the case of a child
in need, not on whether that child is a British citizen, but on whether the
head of the household in which the child lives is a British citizen. I have,
however, been persuaded by the submissions of Mr McGuire (which it is fair to
say were not strenuously opposed by Mr Knafler) that that is indeed what this
legislation provides.
- That is essentially because the reality will often
or usually be that services to protect the child will be provided, as in the
present case, by providing services to the child's family or at least to the
child's custodial parent. That is what is envisaged by section 17(1)(b), read
with section 17(3), of the Children Act. Paragraph 1(1)(g) of Schedule 3 must,
therefore, be read at least in part as addressing that case; and thus as
providing that where a Children Act power is exercised through assistance to
an adult, the power, even though it is a power to assist the child, is taken
away if the adult in question falls within one of the ineligible classes. I
say nothing as to the policy that that provision implements. I do however
accept that the provision indeed operates in the way that lies behind the
judge's formulation, as set out in § 14 above.
The role of the Secretary of State and of the local authority
- Immigration policy is the concern of the Secretary
of State. Welfare provision is in the main the concern of the local
authorities. That not only reflects the constitutional roles of the two
parties, but also the relative skills that they have at their disposal, as
Hale LJ (as she then was) expounded in her seminal judgment in R v
Wandsworth LBC ex p O [2000] 1 WLR 2359 at p 2557C-E.
- Schedule 3 is an instrument of the Secretary of
State's immigration control policy. That is made plain in evidence before the
court from the Director of the International Policy Directorate, Immigration
and Nationality Directorate, of the Home Office. However, the machinery
adopted to implement that policy to some extent disturbs the constitutional
balance referred to in §20 above. In the first and second "ineligible" classes
under Schedule 3 (persons with refugee status in an EEA state or EEA
nationals) the local authority by Regulation 3(1) "may" make "travel
arrangements" for that person's return to the relevant EEA state. Whether in
such circumstances the local authority is obliged to make such arrangements
remains obscure. The implication must however be that local authorities are
expected to act to further the national policy referred to by the Director. By
contrast, the third ineligible class, failed asylum-seekers, remains the
responsibility of the Secretary of State. The extent of the local authority's
powers and obligations towards the fourth class, persons unlawfully in the
United Kingdom, is the subject of this appeal.
- The construction of Schedule 3 and, in particular,
of the Regulations therefore has to be undertaken against the background of
the scheme that the legislation promotes. It is also necessary to remember
that although part of the scheme envisages the local authority providing
persons affected by Schedule 3 with the means to leave the United Kingdom,
immigration control as such remains in the hands of the Secretary of State.
Decisions as to immigration status are therefore for the Secretary of State
and not for the local authority.
British citizenship
- As a British citizen the child enjoys, by section
2(1)(a) of the Immigration Act 1971, the right of abode in the United Kingdom.
By section 1(1) of that same Act
"All those who are in this Act expressed to have the right of
abode in the United Kingdom shall be free to live in, and come and go into
and from, the United Kingdom without let or hindrance"
That proud statement seems plainly to say, and subject to further
discussion below, that immigration controls simply do not apply to a British
citizen, and he cannot be expelled against his will.
- We were however told on behalf of the Secretary of
State that he has power to remove from the United Kingdom the custodial parent
of a British citizen, even though the practical result of that step would be
the forcible removal of the British citizen from her country of citizenship.
The only controlling factor so far as the British citizen was concerned was
whether that step would infringe her rights under article 8 of the ECHR. The
child's citizenship would be a factor to be put into that balance. Two
comments are necessary. First, it is established Convention jurisprudence that
article 8 (nor any other article of the ECHR) does not create a direct right
to enter or remain in any particular country: see for instance Poku v
United Kingdom (1996) EHRR CD 94 at 97, cited with approval by the Master
of the Rolls in Mahmood [2001] UKHRR 307[47]. It is therefore difficult
to see how the child's right of abode could play an independent role in any
article 8 assessment. Second if (as Islington concluded in the present case)
family life can be reproduced in the country of removal, then it is difficult
to see how the case could fall under article 8 at all: because, as made clear
in Mahmood at § 55(3), article 8 creates no right to enjoy family life
in one country rather than another.
- The issue of the child's British citizenship,
which I find one of some considerable difficulty, was not confronted in the
proceedings below, so we unfortunately do not have the benefit of the judge's
view upon it. Nor does it seem to be addressed in any English authority. Ms
Stern showed us the judgment of this court in Samaroo [2001] EWCA Civ 1139, where at §4 the court mentioned, apparently with approval, the
Secretary of State's inclusion within the "compassionate circumstances"
pointing against the deportation of Mr Samaroo, a convicted drug dealer,
"the existence of [his son] and his age [nine years] and the
fact that he is a British citizen with his own independent right to live
here and his relationship to his father"
In that case, however, the article 8 rights under consideration were those
of the father, not those of the son; and there was no suggestion that, unlike
in our case, the inevitable effect of the expulsion of the father would be the
expulsion of the son in his company.
- This issue was, however, addressed in the Supreme
Court of the Irish Republic in Lobe v Minister for Justice [2003] IESC 3
where, similarly to our case, non-national parents of an infant child born in
Ireland claimed the right to remain in Ireland with their child as an Irish
citizen. In the majority judgment Keane CJ held that the child did not have an
unqualified right to reside in the State [§17]. Rather, the right of a citizen
was to choose whether or not to reside in the State. Infants were incapable of
exercising that or any choice, so the right "may reasonably be regarded as a
right which does not vest in them until they reach an age at which they are
capable of exercising it" [§35]. In the meantime, any decision on the part of
the child had to be taken by its parents, who simply were unable to acquire
for themselves a right to remain indefinitely in the State by purporting to
make that choice on behalf of their infant child [§40]. In reaching that
conclusion His Honour was strongly influenced by United States authority, that
similarly regarded the right of a US citizen as being to reside where he
chose: so the right did not attach to a minor who was fortuitously born in the
USA through the choice of his parents, not of himself, to reside there.
- If that authority can be applied in our case, then
the status of the child as a British citizen becomes effectively irrelevant. I
would wish to approach that proposition with caution. It would appear that the
courts in Ireland and the USA regarded the effect of citizenship with some
reserve because that status was acquired by the simple fact of being born in
the country. That is certainly the case under section 6 of the Irish
Nationality and Citizenship Act 1956, cited by Keane CJ at § 28 of his
judgment. The child in our case has however acquired citizenship not simply by
birth, but by a deliberate Parliamentary decision expressed in the British
Nationality Act 1981. The child is a British citizen because she was not only
born here, but born to a parent falling into a carefully limited class: see §
2 above. That careful conferment of citizenship is to be contrasted with the
somewhat adventitious acquisition of citizenship of the Irish Republic that
troubled the court in Lobe. Second, there does not appear to be in the
law of either the Irish Republic or the United States the strong and general
statement of freedom to live in the United Kingdom that is to be found in
section 1(1) of the Immigration Act 1971: see § 21 above. It is not
immediately obvious that that right should be construed simply as a right to
choose, not available to a person until he reaches years of discretion.
- In my view, therefore, the implications of the
child's British citizenship need further exploration. The immigration status
of Mrs M is a matter for the Secretary of State. In the current proceedings
referred to in §1 above the implications of the child's citizenship do not
seem to have been addressed, a matter to which Mrs M's advisers may wish to
give attention before the case is heard by the Immigration Appeal Tribunal.
However, the issue also impacts on how Islington should perform whatever
functions are conferred on it.
- Even if we accept as valid for the United Kingdom
the analysis of citizenship in terms of a right to choose that was adopted in
Lobe, I am very doubtful whether it is open to a local authority, which
has no powers of immigration control, effectively to force upon a British
citizen a decision not to assert the right given her by section 2 (1) (a) of
the Immigration Act. That in my view was the effect of Islington's letter of
21 March 2003, summarised in §4 above, carefully worded though it was. The
offer was of tickets. Although no decision had been made as to what would be
done if the offer were refused, the reference to the "real prospect" of the
child being taken into care if the mother remained in the UK to pursue her
immigration claim; and the prospect of no other support being available for
the mother herself; could only in the eyes of Mrs M point strongly in the
direction of accepting the offer.
- In the event, and for reasons that I shall shortly
demonstrate, I have reached the conclusion that such power as Islington may
have to offer tickets is, as the judge held, severely circumscribed by the
rights of various parties under the ECHR. But if it were to be concluded that
the power could be exercised without infringing those rights, then I do not
think that it would be open to Islington to exercise it in a way that
encourages or in practice enforces the expulsion of the child before the
effect of her citizenship on the child's immigration status has been decided
by the proper authority for that purpose, the Immigration Appeal Tribunal.
The powers and obligations of Islington.
- On this aspect of the case I have the misfortune
to differ in an important respect from the view of my Lords, whose judgments I
have had the benefit of reading in draft. The remission of the case to
Islington must therefore take place in the terms that they have determined. I
would however venture to continue to set out my own view of how the case
should be resolved, and in the course of doing so to indicate why I cannot
adopt the disposal of it that appeals to my Lords.
- It will be convenient if I first summarise my own
conclusions.
i) Islington only has powers under the Children Act if the
application to Mrs M's case of Schedule 3 is excluded by §3 thereof,
avoidance of a breach of a person's Convention rights.
ii) If Schedule 3 does apply to Mrs M's case, it operates as a
complete code, separate from the Children Act
iii) Under the code, there is no power to make travel
arrangements in respect of a person in the fourth class of ineligible
persons
iv) In the case of such a person, the only power is to provide
accommodation, for a very limited period
v) But in the present case, serious consideration must be given
to whether the operation of Schedule 3 is excluded by the need to avoid a
breach of the Convention rights of all of the child, Mrs M and Mr M
vi) That consideration involves an assessment by Islington of
what Children Act powers, if any, are necessary to be exercised to
avoid such a breach. Guidance is given as to the factors that Islington may
think should be taken into account.
I will first indicate what will be the position if Islington
concludes that Schedule 3 does apply to this case. I then consider the
issues arising in relation to the ECHR.
The local authority's powers under the Regulations.
- For the reasons already explained, the local
authority only has power under the Regulations to make "travel arrangements"
in respect of the first and second ineligible classes: see Regulation 3(1).
Where such arrangements have been or are to be made there is a further power
to provide accommodation, pending travel: Regulation 3(2).
- A good deal of confusion has been caused in this
case by Islington's decision to continue its earlier, Children Act, offer of
tickets: see § 4 above. On the construction of Schedule 3 and the Regulations
for which Islington contends, and which as indicated in § 20 above I accept,
Islington no longer had power to offer tickets under the Children Act,
because Mrs M was ineligible for support or assistance under the Children Act.
Islington's powers were strictly limited to what was allowed to it under
Schedule 3 and the Regulations, in substitution for Children Act support, by
reason of Mrs M having a dependent child. Those powers do not include the
making of travel arrangements in the case of a person unlawfully in the United
Kingdom. And there is a very good reason for that, in that a local authority
is not qualified to determine contentious matters relating to immigration: see
the observations of Hale LJ (as she then was) cited in §20 above.
- In the case of Mrs M, therefore, Islington's power
is limited to that in Regulation 3(3). Provided, as in this case, there is a
dependent child,
"A local authority may make arrangements for the accommodation
of a person unlawfully in the United Kingdom who has not failed to
co-operate with removal directions in respect of him"
Wilson J however held, at §36, that that apparently general power was
severely circumscribed by Guidance issued by the Secretary of State. I
respectfully agree in broad terms with the view that the judge took of the
meaning and implications of that Guidance. My Lords do not. I must first
therefore explain my own opinion, and then indicate how this difference
affects the outcome of the appeal.
The Secretary of State's Guidance
- Regulation 4(4) provides that
"A local authority must have regard to guidance issued by the
Secretary of State in making travel arrangements and arrangements for
accommodation."
The Secretary of State issued such Guidance in December 2002. As Wilson J
pointed out, one of the problems in understanding the Guidance is that it
seeks to apply the same regime and criteria to the two different cases
identified in §§ 32-33 above; and that even though local authorities are
expressly reminded in §27 of the Guidance that
"No arrangements may be made in respect of failed asylum seekers
and those unlawfully in the UK-responsibility for making travel arrangements
for these groups of person rests with the Home Office Immigration and
Nationality Directorate"
Put shortly, the Guidance requires all offers of accommodation to be for a
short period, no more than ten days from the time at which the family first
presented for assistance. On the basis of that Guidance, the judge found that
the 21 days offered by Islington was the very limit of what could lawfully be
done.
- The difficulty of the approach in the Guidance is
that it takes as the paradigm case the offering of accommodation as an adjunct
to the making of travel arrangements. In that case, control over when the
subjects should leave is in the hands of the local authority that is making
the travel arrangements. It is therefore understandable that, even if only to
encourage promptitude in the making and enforcing of those arrangements, the
local authority should be limited in the length of time for which it can
accommodate pending departure. But where, as under Regulation 3(3), the local
authority (contrary to Islington's offer in our case) has no power to make
travel arrangements, the date of departure of the person who has not yet
failed to co-operate with removal directions is not within the control of the
local authority, and may well be, as in our case, distant and uncertain.
- In those circumstances, I have to say that it
makes no sense to limit the local authority, irrespective of the needs of the
individuals concerned, to a very short period of accommodation. The present
case demonstrates that to the full. Islington made its decision on 27 March
2003, offering 21 days accommodation "to provide you with the opportunity to
make travel arrangements". For the reasons set out in §30 above, the
lawfulness of that step in the present case must be in serious question. Nor
had removal directions then been issued by the Secretary of State, nor could
their issue be contemplated before the termination of the appeal process. Mrs
M's appeal against refusal of indefinite leave to remain had then already
stood unheard for thirteen months, and was not resolved until September 2003.
An appeal against that decision, brought with the permission of the
Immigration Appeal Tribunal, is not to be heard until June 2004. Mrs M and the
child will therefore be in the United Kingdom for at the very least fifteen
months after Islington's decision. To offer accommodation, but only for the
first three weeks of that period, cannot be an appropriate response to the
condition of Mrs M and of the child.
- That, however, is what the Guidance plainly
requires. It re-emphasises that it indeed addresses non-EEA cases, that is,
ineligibility class four cases where removal directions have not been
disobeyed, by making a distinction between them and EEA cases in its §32. We
were taken to various authorities limiting the effect of "guidance" and of an
obligation "to have regard to". Thus Roskill LJ in Laker Airways v
Department of Trade [1977] QB 643 at p 714C said that "guidance is
assistance in reaching a decision proffered to him who has to make the
decision, but guidance does not compel any particular decision"; Lord Denning
in De Falco v Crawley BC [1980] QB 460 at p 478A said that "the council
of course had to have regard to the code: see section 12 of the statute; but,
having done so, they could depart from it if they thought fit". Those
observations however related to latitude to depart from guidance when it did
not fit the obvious statutory needs of a particular case. They do not give the
local authority a licence, and much less impose on it a duty, to depart from a
general policy set out in the guidance just because it appears, as this policy
appears, to be unreasonable.
- Nor, I have to say with regret, can I agree with
Maurice Kay LJ's view that the reference in the Guidance to a limit on the
period of accommodation being "preferable" entitles the local authority to
decide that it should not apply in a case such as that of Mrs M. Although the
implications of so doing do not seem to have been properly thought out, there
is no doubt that, for the reasons given at the beginning of §39 above, persons
in the same class as Mrs M are intended to be covered by the Guidance. She may
be different from some others in that class, in that she is engaged in active
appeal proceedings; but in all category four cases there is likely to be
uncertainty about removal arrangements, extending over a substantially longer
period than the 10 days from the date the family first presented for
support that is the criterion laid down by §32 of the Guidance. Any
limited licence to depart from guidance in a special case, and any cautious
expression of the guidance in terms of that period of 10 days being
preferable, cannot therefore be used to supply a much longer period
effectively to the whole class of non-EEA cases.
- Nor can it be said that the Guidance is plainly
inconsistent with the statutory powers. The regulation-making power is
referred to in Schedule 3 under the heading of "temporary" accommodation. I
would not regard that fact, if it stood on its own, as particularly
compelling, either as an aid to construction or as determining what is meant
by "temporary". But it can at least be used to demonstrate that the author of
the Guidance did not plainly depart from his statutory powers. And, indeed,
this point goes further, because the Schedule and the Regulations, with which
the Guidance has to be construed, are all about the witholding and withdrawal
of support. It would be odd if category four cases, having been removed from
Children Act support by Schedule 3, were then reinstated into a substantial
period of support by the Guidance.
- Nor is it possible to revert to Islington's
obligations under section 17. The whole point of Schedule 3 is to substitute
the Schedule 3 obligations, limited as they are, for the original Children Act
duties. And that is why no assistance can be gained from R v Wandsworth LBC
ex p O [2000] 1 WLR 2539, where an exceptionally strong constitution of
this court held that the use, or rather the witholding, of welfare provision
could not be used to implement immigration policy without clear statutory
authority. That authority has now been provided by Parliament in the 2002 Act.
- It is for these reasons also that, with regret, I
cannot adopt the approach of Waller LJ, that the Guidance permits the
provision of accommodation for a period until travel arrangements are made by
the Home Office. I would venture in that regard to mention two further
considerations. First, §2 of the Guidance indicates that the object is to
provide to category four cases "similar" accommodation to that envisaged in
EEA cases. It would be odd if later in the Guidance a completely different
regime were provided for category four. Second, I revert to the specific
starting-point, the date of presentation for support, that is given for all
cases in §32 of the Guidance (see also § 40 above). It is very unlikely that
there is nonetheless intended to be a different and unstated starting-point,
whatever date upon which removal directions are finally made, in category four
cases.
The effect of my understanding of the Guidance
- The Guidance, if it does indeed treat all three
ineligible cases together, makes clear that the very limited, in effect
non-existent, accommodation that is all that Islington can offer is intended,
as in the EEA cases, to encourage or force Mrs M to leave the UK; even though,
paradoxically, in her case Islington has no power to make travel arrangements.
It is therefore necessary to consider whether that will lead to a breach of
Convention rights; because, if it will, §3 of Schedule 3 requires reversion to
the original Children Act powers.
Breach of a person's Convention rights
- I entirely accept Ms Stern's submission,
countering an ill-considered suggestion on my own part, that "a" person in §3
means any person, and not that person. So even though the disqualification
from Children Act assistance turns on the status of Mrs M and not on that of
the child (see §19 above), the lifting of that disqualification can address
the position of the child, or indeed of her father.
- In §§ 49-59 of his judgment Wilson J gave cogent
reasons why the Convention rights at least under article 8 of all of the
child, Mrs M and Mr M are in issue in this case. All of those rights would be
likely to be seriously affected if all that Islington could do were to
exercise its powers under the Regulations, with the effects summarised in §40
above. First, Mrs M is adamant that she will not leave the UK. Absent removal
directions, she cannot be forced to do so; and since, as we have seen,
Islington cannot fund her travel arrangements under Schedule 3 it is difficult
to see how a destitute woman could leave, let alone find her way back to
Guyana, even if she wanted to do so. Islington made it clear in its letter of
21 March 2003 that that would raise "a real prospect" of the child being taken
into care. I for my part would find it difficult not to see an offer of
tickets with an alternative of no accommodation (made not for social reasons
but in an attempt to enforce immigration control other than by the issuing of
removal directions) as an unjustifiable interference with the article 8 rights
both of Mrs M and of the child. Second, as the judge pointed out, whilst Mrs M
and the child may be able to maintain family life in Guyana, if the object of
removing them there succeeds, there has to be substantial certainty on that
point before removal can confidently be said not to raise issues under article
8. Third, it would be quite unreasonable to expect Mr M, settled in the United
Kingdom and separated from Mrs M, to follow her to Guyana. Depending on the
strength of the bond between Mr M and the child, the article 8 rights of both
of them would be threatened by the prospect of the child's removal to Guyana.
- While this would be in the first instance a matter
for Islington, it might have found it difficult not to conclude that, on any
view of Mrs M's possible reaction, the limitation of its powers to those under
the Regulations will involve interference with the parties' Convention rights.
I should also make plain that, in assessing any future decision that Islington
might have made, the criterion would not simply be that of Wednesbury
unreasonableness. The test of necessity under §3 of Schedule 3 imposes a
condition precedent to the exercise of a statutory function, under the
(restored) Children Act powers. That test must be applied according to
objective criteria, which the court retains the power to review.
Islington's powers under the Children Act
- On the assumption that action constrained by
Schedule 3 is seen as infringing Convention rights, Islington would become
again free to, and would be obliged to, exercise its powers under the Children
Act. That was what the judge saw Islington as doing in the offer of tickets
that it had made to Mrs M.
- Islington would have to bear three considerations
in mind before it could lawfully discharge its Children Act duty by an offer
of tickets rather than by providing support, including accommodation, in the
United Kingdom. First, it would have to be confident that the child will cease
to be "in need" if removed to Guyana. Wilson J, who has unrivalled experience
in these matters, pointed to the detailed and circumstantial enquiry needed in
this case, none of which appears to have taken place. Second, the various
parties' Convention rights must be respected in any action taken under the
Children Act, just as they are relevant to putative action under the
Regulations. The considerations set out in §46 above remain directly in point.
Here again, because what is in issue is the state's positive obligation under
article 8 of the Convention to protect family life (see for instance Marckx
v Belgium Case 6833/74 at §31), Islington would have to act in the light
of that obligation, and not simply reach a decision that is not
Wednesbury unreasonable. Third, Islington would have to bear in mind
the implications of seeking to remove a British citizen from the United
Kingdom, as indicated in §30 above.
Powers and duties
- It will be recalled (see §13 above) that counsel
for Mrs M argued that there was a general power to provide accommodation under
Schedule 3, and that in the circumstances of Mrs M's case there was a duty on
Islington to exercise that power. I have found that the power under Schedule 3
is far more circumscribed: see §38 above. And, even if that were not the case,
there is simply no justification for translating whatever power is conferred
by Schedule 3 into a duty. For that to be the case, Schedule 3 would at least
have to impose obligations as to the general welfare of the subject. That is
the last thing that it does.
- By contrast, Islington does have a general duty
under the Children Act to provide for children in need, such as the child in
this case. It must exercise those powers with that end in mind, as well as
with regard to its duties under the Convention.
Disposal
- Wilson J concluded that Islington's decision,
whether taken under Children Act powers or under Schedule 3, had to be
reconsidered in the light of ECHR obligations. I have reached the same
conclusion by a slightly different route. If the decision were my own I would
allow the appeal only to the extent of varying the judge's order to provide
that the case must be reconsidered by Islington in the light of the guidance
given in §§ 46-49 above. In that process, the criticism of the consideration
of the case so far that is set out in §§ 47-58 of the judge's judgment would
have to be borne very carefully in mind. However, since that conclusion is
based upon a view of Islington's powers and duties that is not that of the
majority of the court, the appeal must be determined according to the order
proposed by my Lords.
Lord Justice Maurice Kay:
- I agree with what Buxton LJ has said about the
import of the ECHR in the circumstances of this case. However, I take a
different view of the power of Islington to provide accommodation pursuant to
Regulation 3(3).
- The legislative sequence is as follows. By section
54 and Schedule 3 paragraph 1(1)(g) of the Nationality, Immigration and Asylum
Act 2002 eligibility for support or assistance under section 17 of the
Children Act 1989 is withdrawn. Nevertheless, the subsequent provisions of
Schedule 3 provide for exceptions. I adopt the reasoning of Buxton LJ in
relation to the exceptions set out in paragraphs 2 and 3. Paragraph 7 provides
that paragraph 1 applies to a person – that is, renders him ineligible – if he
is in the United Kingdom in breach of the immigration laws and he is not an
asylum seeker. It therefore applies to M. However, it is not the end of the
story. By paragraph 10 the Secretary of State is empowered to make regulations
providing for arrangements to be made for the accommodation of a person to
whom paragraph 7 applies if he has not failed to comply with removal
directions issued in respect of him, provided that he has with him a dependant
child, in which case the arrangements may include arrangements for that child.
Thus, the position of M is precisely one of those contemplated by the
regulation empowerment.
- Regulation 3(1) and (2) do not apply to M as they
relate only to persons with refugee status abroad and EEA nationals. The
crucial provision is therefore Regulation 3(3) which provides that a local
authority
"may make arrangements for the accommodation of a person
unlawfully in the United Kingdom who has not failed to cooperate with
removal directions issued in respect of him"
provided that (Regulation 3 (4)) he has with him a dependant child. If the
Regulations stopped there, it would be beyond dispute that Islington would
have the power to provide accommodation in M's case. However, Regulation 4
goes on to provide that
"(1) …..arrangements for accommodation must be made so as to
secure implementation of those arrangements at the lowest practicable cost
to the local authority…….
(4) A local authority must have regard to guidance issued by the
Secretary of State in making…..arrangements for accommodation."
I do not consider that the Regulation 4(1) imposes a temporal restriction.
It simply requires economy in the context of whatever the appropriate duration
may be.
- It is the published Guidance which persuaded
Wilson J and Buxton LJ to conclude that Islington has no power to make
arrangements for accommodation for more than two or three weeks. I therefore
explain why I disagree with that conclusion.
- Although paragraph 10 of Schedule 3 (the power to
make regulations) and the title of the Regulations themselves refer to
temporary accommodation, I do not think that that points to an unduly
short period. It is common knowledge that the categorisation of something as
"temporary" in the context of immigration law is not synonymous with duration
of extreme brevity. It means no more than "lacking permanence". Some insight
into the purpose of this power to provide temporary accommodation can be
obtained from the Introduction to the Guidance, which states that local
authorities will be able to provide such accommodation to those unlawfully in
the United Kingdom "whilst they await removal directions from the Immigration
Service". Again it is common knowledge, and was in 2002, that there are many
circumstances in which that wait may last for months or even years. The case
of M is an obvious example. She is pursuing an appeal against the refusal to
grant her indefinite leave to remain. Her case is not obviously hopeless or
abusive. The Secretary of State did not certify it so as to curtail her appeal
rights and the Immigration Appeal Tribunal has given her leave to appeal,
thereby accepting that her appeal has a real prospect of success. Whilst her
appeal is pending, she must remain in this country because the appeal would be
treated as abandoned if she left the country (section 104 of the 2002 Act). In
all these circumstances, there is no question of the Secretary of State
issuing removal directions unless and until the appeal process has been
exhausted and has ended in failure.
- The part of the Guidance which has a part to play
in these circumstances is under the heading of the grant of "temporary
short – term accommodation". It is a fact that neither the Act nor the
Regulations use the expression "short – term". The crucial paragraph is
paragraph 32:
"For those persons returning to EEA Member States, it is
preferable if accommodation does not continue for a period of more that a
further 5 days from the date the family first presented for support or
assistance to the local authority. For those returning to other
countries, it is preferable if accommodation does not continue for a period
of more than a further 10 days from the date the family first presented for
support or assistance to the local authority."
Wilson J and Buxton LJ have concluded that, because of paragraph 32,
Islington has no power to provide accommodation for more than 2 or 3 weeks,
even though, in the words of Buxton LJ (para 37), "it makes no sense to limit
the local authority, irrespective of the needs of the individual concerned, to
a very short period of accommodation".
- In these proceedings, there is no challenge to the
lawfulness of the Guidance. We have to approach it on the basis that, to
comply with Regulation 4(4), Islington must "have regard" to it. In my
judgment, it would be consistent with the authorities referred to in paragraph
38 of Buxton LJ's judgment for Islington to conclude that, notwithstanding
that it is "preferable" to limit the provision of accommodation to the sort of
period referred to in paragraph 32, it would be inappropriate to do so in the
circumstances of this case. If the wait is likely to be measured in months,
there would be no point in a provision which exists for the benefit of
children being limited to a period of days. I base this conclusion on the fact
that paragraph 32 is expressed in the language of preference and must be
considered in the context of the stated purpose of providing accommodation
"whilst they await removal directions". I also agree with Waller LJ, whose
judgment I have seen in draft, that the words "for those returning to other
countries" in paragraph 32 of the Guidance provide further support for this
conclusion.
- I emphasise that, on this analysis, Islington has
a statutory power rather than a duty to provide accommodation. I accept that
there can be circumstances in which any proper consideration of the exercise
of a power can only result in a positive conclusion but I stop short of saying
that this is necessarily such a case. It is a matter for Islington to consider
in the course of the reconsideration which is to take place. For my part, I
would hesitate before granting a declaration of the width suggested by Mr.
Knafler.
Lord Justice Waller:
- I have read in draft the judgments of Buxton LJ
and Maurice Kay LJ. There is a point on which they disagree. That point is the
very point on which Sedley LJ gave permission to appeal, and is of general
importance to Local Authorities who have to consider how they should react to
persons in the position of Mrs M of whom there may be many. She is a mother
with a child who without assistance would be destitute; she is also unlawfully
present in the United Kingdom but exercising her rights of appeal challenging
that unlawfulness a process which for reasons not within her control is taking
a very substantial period. If Islington had been free to exercise their powers
under Section 17 and other sections of the Children Act they would, as indeed
they first did, have offered tickets to Mrs M to enable her to fly to Guyana.
The subtext of such an offer would have been that if she did not accept the
offer, consideration would have been given to taking her child into care. The
Court of Appeal in R on the application of G v Barnet LBC [2001] 4 CCLR
128 upheld as lawful the decision of the local authority in that case to
provide tickets for a child and its parent to return together abroad, in
circumstances where the Local Authority had concluded that the provision of
such tickets did "safeguard and promote the child's welfare".
- What was intended to be the effect of the bringing
into force of Schedule 3 of the 2002 Act on persons such as Mrs M and her
child? That Schedule had its effect by virtue of section 54. As Wilson J
points out Section 54 describes Schedule 3 in these terms "which makes
provision for support to be withheld or withdrawn in certain circumstances".
Schedule 3 applied to four categories of adult persons who were not British
citizens (para 2(1)(a) and (b)), and provided that such persons should not be
eligible for support or assistance under, among other provisions, section 17
of the Children Act (para 1(g)).
- Mrs M was not a British Citizen or a child and
falls by virtue of paragraph 7 within the fourth category of ineligible
persons being a "person unlawfully in the United Kingdom", and, as Buxton LJ
has concluded it is clear that the starting point for consideration of the
effect of the remainder of Schedule 3 is that Islington's powers under Section
17 and in particular the powers under Section 17(3) which might have been
exercised in favour of Mrs M for the child's benefit were withdrawn.
- But as Paragraph 2(1)(c) makes clear, paragraph 1
does not prevent the provision of support or assistance "under or by virtue of
regulations made under paragraph 8, 9, or 10..". Furthermore, paragraph 3
makes clear that 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 person's Convention
rights…".
- Paragraphs 8 and 9 empower the making of
regulations relating to the first two categories of ineligible persons (EEA
classes). It is regulation 10 which is critical so far as considering the
position of Mrs M is concerned. It empowers the making of regulations
"providing for arrangements to be made for the accommodation of a person if :–
(a) Paragraph 1 applies to him by virtue of paragraph 7,
and
(b) he has not failed to cooperate with removal directions
issued in respect of him."
- Mrs M was and is of course both a person
ineligible by virtue of paragraph 7 and has not failed to cooperate with
removal directions. There is nothing in paragraph 10 which gives any
indication as to the duration for which the regulations should provide for
accommodation to be provided, save that non-compliance with "removal
directions" places a long stop on the power to arrange accommodation.
- Paragraph 11 of Schedule 3 sets out that for which
the regulations may provide, and that includes at (e) that they may "require a
local authority or another person to have regard to guidance issued by the
Secretary of State in making arrangements".
- Pursuant to his powers under paragraphs 8, 9,10
and other provisions irrelevant for present purposes, the Secretary of State
made the Withholding and Withdrawal of Support (Travel Assistance and
Temporary Accommodation) Regulations 2002. Regulation 3 dealt first with the
EEA classes of ineligible persons empowering a local authority to make travel
arrangements for such persons and the making of arrangements for accommodation
in respect of whom travel arrangements "have been or are to be made pending
implementation of those arrangements" [regulation 3(1) and (2)]. Regulation 3
dealt second with persons unlawfully in the United Kingdom empowering a local
authority to make arrangements for the "accommodation of a person unlawfully
in the United Kingdom who has not failed to cooperate with removal directions
issued in respect of him." [Regulation 3(3)]. Arrangements could only be made
for accommodation in either case if the person had with them a "dependant
child" [Regulation 3(4)]. In Regulation 3 there was no indication as to the
speed with which travel arrangements had to be made or the duration of any
accommodation.
- Regulation 4 dealt with "Requirements relating to
travel and accommodation arrangements". Regulation 4(1) provided that both
travel and accommodation must be at lowest practicable cost; Regulation 4(2)
provided for travel arrangements having to be made (subject to cost) "so that
the person leaves the United Kingdom as soon as practicable"; Regulation 4(3)
forbade cash payments in lieu of travel or accommodation arrangements, and
required the making of arrangements in such a way as to "prevent the obtaining
of services or benefits other than those specified in the arrangements"; and
Regulation 4(4) provided that "a local authority must have regard to guidance
issued by the secretary of state..".
- Thus as regards EEA classes for whom travel
arrangements had to be made some indication of duration was given by
regulation 4 in combination with Regulation 3(2), in that the arrangements had
to be made so that those persons left as soon as practicable and the power to
provide accommodation was a power "pending the implementation of those
arrangements", and that was the limit of the local authority's power.
- As regards persons unlawfully present with a child
i.e. persons such as Mrs M the Regulations provided no indication as to
duration unless it is by reference to "removal directions". So far as travel
arrangements were concerned, the Local Authority was not given power to make
them; it would be a matter for the Home Office to make such arrangements as
the Guidance to which I am about to turn makes clear.
- It is in the above context that the Guidance to
which the Local Authority "must have regard" has to be considered. The key
provisions seem to me to be:-
"27. The Withholding and Withdrawal of Support (Travel
Assistance and Temporary Accommodation) Regulations 2002 (hereafter referred
to as "the Regulations 2002") give limited powers to local authorities to
make arrangements for:
(a) Nationals of other EEA Member States;
and
(b) Those with refugee status in another EEA Member
State.
to travel back to that member state. No arrangements may be
made in respect of failed asylum seekers and those unlawfully present in
the UK – responsibility for making travel arrangements for these groups of
person rests with the Home Office Immigration and Nationality
Directorate."
28. Additionally, Local Authorities are also granted a power
under the Regulations 2002 to grant temporary short-term accommodation to
some classes of person listed in Schedule 3 pending departure from the
United Kingdom. The powers to grant temporary accommodation are limited to
the following classes of person who have with them a dependent
child:
(a) Nationals of EEA states other than the
UK;
(b) Those with Refugee status in another EEA Member State;
and
(c) Those unlawfully present in the
UK.
31. Accommodation is purely a temporary measure to allow a
person with dependent children to be accommodated pending departure from the
UK. Local authorities should have regard to the desirability of ensuring
that the overall costs of accommodation and the return journey is as
cost-effective as possible.
32. For those persons returning to EEA Member States, it is
preferable if accommodation does not continue for a period of more than a
further 5 days from the date the family first presented for support of
assistance to the local authority. For those returning to other countries,
it is preferable if accommodation does not continue for a period of more
than a further 10 days from the date the family first presented for support
or assistance to the local authority.
33. In the event of failure to travel, should the person have an
acceptable reason and be able to provide acceptable proof, further
accommodation could, in principle, be provided. New travel arrangements
should ideally be made at the first possible opportunity and it is
preferable if accommodation does not continue for a period of a further 5
days (returns to EEA member states) or 10 days (for those returning to
non-EEA States).
34. Where an individual fails to travel and they do not provide
an acceptable reason or cannot provide acceptable proof, further
accommodation should not be provided to them as set out in the Regulations
2002. Offers of care may be made to any children under Section 20 of the
Children Act 1989. But further accommodation, or any other form of support
as defined in Paragraph 1(1) of Schedule 3 of the Nationality, Immigration
and Asylum Act 2002 should not be provided to the adults.
35. In respect of individuals(s) here unlawfully, the Home
Office Immigration and Nationality Directorate will inform local authorities
should the individual refuse to cooperate with removal directions. In such
an event, all accommodation must be immediately terminated as set out in the
Regulations 2002. Offers of care may be made to any children under Section
20 of the Children Act 1989. Again, it follows from the Regulations 2002
that no further accommodation, or any other form of support as defined in
Paragraph 1(1) of Schedule 3 of the Nationality, Immigration and Asylum Act
2002 should be provided to the adults.
- Paragraph 32 clearly does provide guidance as to
the duration of the provision of accommodation. Paragraph 35 emphasises that
the relevance of being in breach of removal directions is that there is simply
no power to provide accommodation once a person is in breach. But what
precisely is the Guidance? Is it that in all circumstances the Local Authority
should consider about 10 days as the limit or could there be circumstances
where much longer would be appropriate? The answer is by no means obvious.
- The second sentence of paragraph 32 provides "For
those returning to other countries, it is preferable if accommodation does not
continue for a period of more than a further 10 days from the date when the
family first presented for support." Is that a guide that 10 days should be
about the limit to all persons unlawfully present including those in Mrs M's
position, or do the opening words leave room for arguing that if no travel
arrangements have either been made or are in the process of being made by the
Home Office, then there is greater flexibility? The words "for those returning
to other countries" seems to contemplate a decision already taken that the
persons should return, and possibly in the context a situation in which
travelling arrangements were either about to be made or already made. Why, it
could be said, 10 days in this context and 5 days in the EEA classes' context
other than to give a little more time for travel arrangements to be made by
the Home Office as compared with the travel arrangements that the Local
Authority could make themselves?
- On the other hand, where Section 17 powers are
being withdrawn, it would at first sight seem strange to grant a power to
provide accommodation almost as extensive, and strange to place limits on the
power as per Regulation 4(3).
- I considered paragraphs 37 to 50 under the heading
"Travel Arrangements" to see whether any assistance could be gained from those
paragraphs. But as I read paragraphs 37 to 50, they apply only to persons and
situations where travel arrangements have been made by the Local Authority
i.e. the EEA classes. At times the language is general and could be applied
literally to a person for whom travel arrangements have been made by the Home
Office, i.e. those unlawfully present. But starting as the paragraphs do with
paragraph 37 which clearly applies only to EEA classes, the intention must be
that the other paragraphs apply only to EEA classes.
- If paragraphs 36 to 50 had applied to those
unlawfully present, that would have lent considerable support to a possible
interpretation of paragraph 32 of the Guidance that 10 days was a time,
contemplating that the Home Office would be making travel arrangements,
inapposite if the Home office had no intention of doing so.
- I have not found it easy to know precisely what
the Guidance had in mind. But (a) it seems to me that the thrust of the
Guidance and the power being given to the Local Authority is consistently
linked with there being travel arrangements; (b) the wording "for those
returning to other countries" seems to show a link even in the cases of those
unlawfully present, and even though the travel arrangements must be made by
the Home Office; and (c) the result in a case such as Mrs M, of placing a
limit of 10 days or some short duration where no travel arrangements have been
made, leads to an unsatisfactory result (see further below). I have therefore
concluded that the Guidance provides the indication of the duration for which
accommodation can be supplied under Schedule 3, but where travel arrangements
have not been made by the Home Office, it is open to Islington to provide
accommodation for a period longer than 10 days pending arrangements being made
by the Home Office.
- I find support for the above view in considering
what would be the result of there being a limit of about 10 days in the case
of Mrs M. The offer of accommodation of such limited duration would clearly
lead to a breach of "a person's Convention Rights" as Buxton LJ has pointed
out. In posing the question which I did at the outset, what was intended to be
the position in relation to persons in position of Mrs M, it must have been
foreseen that having withdrawn Section 17 powers with one hand, if about 10
days was the limit for the duration of any accommodation, the likelihood was
that the powers would be handed back with the other but subject to a
constraint. What Islington would then have to determine is what power or duty
they could perform under Section 17 to prevent the breach of Convention
Rights; their freedom to go back to Section 17 is only to the extent that the
exercise of the power under Section 17 "is necessary" for the purpose of
avoiding a breach. If that means all that could be supplied was accommodation,
then it is of no practical consequence whether the Guidance is construed in
the way I have suggested or has the more limited construction favoured by the
judge and Buxton LJ. If the regaining of Section 17 powers provides the Local
Authority with the option of providing air tickets, then the result (I
suggest) is somewhat bizarre. Was it really contemplated by Schedule 3 and the
Regulations that, despite Local Authorities not having the power to make
travel arrangements for those unlawfully within the United Kingdom, and being
placed under the constraints as to the making of cash payments or the
provision of any other benefits [Regulation 4(3)], the result of confining the
duration of the accommodation would be to give Local Authorities the powers to
make travel arrangements, and provide other benefits? The answer appears to be
that if to provide air tickets would safeguard and promote the welfare of the
child, and promote the upbringing of such child by its family, and if to do so
was necessary to prevent a breach of the convention in relation to Mrs M, the
child or the father, it would be an option available, if the Guidance is
construed as limiting the duration of accommodation to ten days. That seems to
place on Local Authorities responsibilities in relation to immigration where
the Guidance would suggest that they were still with the Home Office. That, it
seems to me, would be an unsatisfactory result, and supports the construction
of the Guidance which I have advocated.
- If I were wrong about the proper construction of
the Guidance, then I would agree with Buxton LJ's conclusions and his Guidance
to Islington.
- The above, however, being my view and that of
Maurice Kay LJ, this appeal should, (I would suggest, and subject to the
submissions of counsel), be disposed of by allowing the appeal and making a
declaration that Islington have the power to provide accommodation under
Schedule 3 to M pending her being in breach of removal instructions. That does
not impose a duty, simply reflecting the ambit of Islington's powers. However,
it is right to add that in exercising those powers Islington will have to be
aware of their Convention obligations. That, in real terms, may leave them
little choice but to offer accommodation. But that question can only be
answered finally once Islington have reviewed the matter in the light of our
judgments.
Order: Appeal allowed; order as per agreed draft minute of
order.
(Order does not form part of the approved
judgment)