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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> KA, R (on the application of) v Essex County Council  EWHC 43 (Admin) (18 January 2013)
Cite as:  WLR(D) 60, (2013) 16 CCL Rep 63,  EWHC 43 (Admin),  2 FCR 319,  1 WLR 1163,  BLGR 363
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(SITTING AS A DEPUTY HIGH COURT JUDGE)
| THE QUEEN (on the application of KA)
|- and -
|ESSEX COUNTY COUNCIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Bryan McGuire QC (instructed by Essex County Council Solicitors) for the Defendant
Hearing date: 18th December 2012
Crown Copyright ©
Mr Robin Purchas QC:
"With regards to article 8 they have a right to a private and family life. However as the family will be returning to Nigeria together, there will be no breach of their right to enjoy a family life. Regards to the length of time the family have lived in the UK especially the children. It is Essex County Council's position that the children are still very young and therefore adaptable to changes in life. It is also clear from the Child in Need Assessment that the children are brought up to be identified with the Nigerian culture and so it is expected that on return to Nigeria, they will be able to adapt easily to the Nigerian way of life. Returning to Nigeria will also strengthen their family life as they will be reuniting with the extended family members."
"The children will no longer be classified as being in need once they return to their country of origin because their parents will be able to undertake work legally and support their family with their basic needs. The children will be able to attend free education and have a good standard of medical care in their country of origin. Should (the Claimant and her husband) decide to return to Nigeria, the local authority will continue to provide support in the interim whilst travel arrangements are being made."
It set out the final conclusion that:
"In my professional opinion there is no reason why the family cannot return to their country of origin (Nigeria). ... The issue of the length of time the family has been in the UK, it is Essex County Council's position that the children are of adaptable age. The parents have informed that they are bringing up their children in the Nigerian culture; therefore they should easily adapt to life in Nigeria if they return and it will also strengthen their family life as they will be reunited with the extended family members. There will be no breach of article .... 8 of the Human Rights Act if support was to be withdrawn by Essex County Council and the family return to Nigeria."
"This authority has not seen any evidence that would suggest that the family have a strong case in any challenge they may have against any future decision, whenever that decision may be made by the UKBA as to their removal. Furthermore, there is no current application pending with UKBA and the facts as detailed in the letter copied from (the immigration solicitors) to this authority on 25 June 2012 discloses information which is as far as this authority is aware has not been raised previously by (the Claimant) since 2002. That said, the contents of that letter would be a matter for UKBA to consider. At present there is no application or appeal outstanding and this authority cannot comment on the strength of any proposed case. Therefore this authority denies that it is obliged to provide such support. "
The letter relied on the conclusions in the assessment in support of its decision to withdraw support and its contention that that would not result in any breach of Convention rights.
The legal framework
"It shall be the general duty of every local authority ...
(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."
"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 ..."
It is the application of paragraph 3 that is central to the issues in this case, that is the extent that the exercise of the power to provide support or assistance under the 1989 Act to the Claimant and her husband is necessary for the purpose of avoiding a breach of a person's Convention rights.
"The withdrawal of DP5/96 and replacing it with consideration under the Immigration Rules and article 8 of the Convention will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA."
- "The refused application for leave to remain included a dependant child under 18 who has been resident in the United Kingdom for 3 years or more …
- The applicant has provided evidence of being supported by a local authority under ... section 17 of the 1989 Act; or
- There are other exceptional and compelling reasons to make a removal decision at that time."
Where the criteria are met, the guidance states that a removal decision should be made and served within 3 months of the date of the response.
"86. The principle of subsidiarity, however, does not mean renouncing all supervision of the result obtained from using domestic remedies, otherwise the rights guaranteed by the Convention would be devoid of any substance. In that connection it should be reiterated that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective (see Scordino v . Italy (No. 1) (GC) No. 36813/97 paragraph 192 ...). .... Indeed it is settled case law that, whilst article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by article 8 (see Chapman v. UK (GC) No. 27238/95 paragraph 92 ... and Buckley v. UK 25th September 1996 paragraph 76 reports 196-IV)
87. It follows from the above that, before accepting the judgment of the domestic courts that the applicant presented a national security risk, the court must examine whether the domestic proceedings were attended by sufficient procedural guarantees. It reiterates in this connection that even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. The individual must be able to challenge the executive's assertion that national security is at stake. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (see Al-Nashif v. Bulgaria 50963/99 paragraph 123 ..."
That case was concerned with national security but the principles are applicable generally to the concept of Convention procedural rights.
"Such an approach is also consistent with the statement in the Strasbourg jurisprudence that "the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective": see Artico v. Italy 1980 3 EHRR 1 paragraph 33. Mr Knafler relies on a number of Strasbourg decisions, in particular Ciliz v. The Netherlands 2000 2 FLR 469 where the European Court of Human Rights held that it was incompatible with article 8 for the Immigration Authorities to prejudge and pre-empt family law contact proceedings by expelling the immigrant father before their conclusion. At paragraph 66 the court said:
"(The court) recalls in this respect the Convention does not in principle prohibit contracting states in regulating the entry and length of stay of aliens (see Berrehab v. The Netherlands 1988 11 EHRR 322 paragraph 28). Nevertheless the court also reiterates that, whilst article 8 contains no explicit procedural requirements, the decision making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by article 8."
68. At para 71, the court said that the authorities not only prejudged the outcome of the contact proceedings by expelling the father when they did, but more importantly "they denied the applicant all possibility of any meaningful further involvement in those proceedings for which its availability for trial meetings in particular was obviously of essential importance." It is true that, as Mr Moffett points out, the decision of the Immigration Authorities in Ciliz v The Netherlands 2002 FLR 469 was different in kind from the decision by Birmingham which is under challenge in the present case. But the effect of both decisions was to deny the applicant the possibility of asserting his article 8 rights in any meaningful way. In the Ciliz case, he could not effectively participate in the contact proceedings. In the present case, if the Claimant was required to leave the UK, her claim for indefinite leave to remain would be abandoned."
"Mr de Mello also submitted that the Appellant, having made a claim under article 8 of the ECHR, had a right to have that claim determined in a way that was procedurally fair and that the necessary procedural safeguards included a right to appeal to an independent tribunal against the Respondent's rejection of her claim. The ability to apply for judicial review of the Respondent's decision was not an adequate procedural safeguard because, however intensive the review, judicial review was not an appeal on the merits.
13. On the facts of the present case, this submission is academic because Winn Williams J allowed the appellant's claim for judicial review of the Respondent's article 8 decision ... . He did so on conventional judicial review grounds because that is the way in which the appellant's claim was argued for him. Mr Blundell referred us to the decision of the House of Lords in Secretary of State for the Home Department v Nasseri 2009 UKHL 23 in which Lord Hoffmann explained that the court's task when breach of a Convention right is in issue is to decide, not whether there has been a defective decision making process, but whether the applicant's Convention rights have been violated: see paragraphs 13-15.
14. In my judgment it is unnecessary to consider the hypothetical question – what is the practical difference between an appeal on the merits and judicial review when breach of the ECHR is in issue – firstly because the answer could make no difference on the facts of this case; and secondly because it is necessary to have regard to the legislative scheme as a whole when deciding whether or not the Appellant's rights under article 8 are adequately protected. Her opportunity to challenge the article 8 aspects of the respondent's decision to refuse leave to remain did not exhaust her right to rely on article 8. If and when a removal decision is made, she will be able to appeal to the Tribunal against that decision on the ground that removal from the UK would be in breach of her and her family's article 8 rights: sections 82(1)(g) and 84(1)(g) (of the 2002 Act). There is no need to impose an obligation on the Secretary of State to make simultaneous refusal of leave and removal decisions in all cases involving overstayers where article 8 issues are raised in order to ensure that the process is article 8 compliant."
Lord Justices Rimer and Sedley agreed with Sullivan LJ. While for the reasons explained by Sullivan LJ, the comments in paragraph 14 were unnecessary to the decision in that appeal, they are in my judgment a relevant and persuasive explanation of the statutory framework providing procedural protection in connection with article 8.
"74. It seems to me that in considering whether the provision of support to failed asylum seekers is necessary in order to prevent a breach of Convention rights it will be necessary for the public body concerned to have regard to all relevant circumstances including, where appropriate, the matters which are alleged to constitute a fresh claim for asylum. In many cases – possibly the great majority – it may well be inappropriate for a public body to embark on any consideration of the purported fresh grounds. However, there may well be cases in which the purported fresh grounds are manifestly nothing of the sort and where it would be appropriate for the public body to take account of that fact in arriving at its decision in relation to asylum support.
75. I accept the submission of the defendants and the Secretary of State that it is necessary to proceed on a case by case basis. Each case will turn on its own facts and it will be necessary to examine the facts of each case with care. …
76. I should add that, contrary to the submission of the claimants, I do not consider that this conclusion is inconsistent with the principles expounded by the Court of Appeal in O or that it in any way diminishes the protection afforded to failed asylum seekers who wish to make a further claim for asylum. It is only in the clearest cases that it would be appropriate for the public body concerned to refuse relief on the basis of the manifest inadequacy of the purported fresh grounds. In addition, where appropriate, the individual will have recourse to judicial review in order to challenge such a decision. Moreover, the alternative contended for by the claimants would lead to a situation in which the failed asylum seekers could secure assistance for prolonged periods on the basis of purported fresh claims which were manifestly nothing of the sort."
"Parliament has, as Lloyd-Jones J said, dramatically changed the position by the 2002 Act. Local authorities are inevitably drawn into an assessment of whether a person is in the UK in breach of immigration laws ... .
53. I accept that the Court of Appeal in Kimani and this court in AW has envisaged that there may be some claims to remain in the UK which local authorities could properly categorise as "manifestly unfounded" or "clearly specious". To this extent as well, things have moved on from the strict division between the Immigration Authorities on the one hand and the Social Services Departments on the other, which was envisaged by Hale LJ in ex parte O. There is still some force to her point that the two sets of authorities enjoy different expertise. That is particularly important when judging the validity of an outstanding application for permission to remain in the UK, as opposed to an assessment of a person's existing immigration status. The former is much more likely to involve the exercise of judgment, assessment and (in some cases) discretion, which Parliament has entrusted to the immigration authorities rather than local authorities ... Even without the expertise or legislative mandate of the Home Office, there will be some applications that a local authority can identify as utterly hopeless, but in my view they should proceed on the assumption that the application will fail only if it is "manifestly unfounded", to use the expression that echoes through Kimani and AW. It is not enough that they consider the application will fail or is not made out. "
"In a domestic article 8 case where the claimant has not applied for leave to remain a local authority is considering whether article 8 constitutes an impediment to a person's return to his country of origin, it must consider whether the applicant enjoys a private or family life in the UK within the meaning of article 8.1 and, if so, whether a return to his country of origin would constitute an interference with that right. Much will depend on the facts of the particular case. Thus, prima facie, the return of a married couple who have an established family life in their country of origin and have no children and have been in the UK for a short time is unlikely to amount to an interference of their right to family life. On the other hand, the position of a family with children who have been in the UK for a long time is likely to be quite different. Prima facie, to require the return of such a family, and particularly where the children have spent their formative years in the United Kingdom, does amount to interference with their right to private life: see Uner v. Netherlands 45 EHRR 421.
60. The question raised by this appeal is what the local authority should do when an application for leave to remain has been made expressly or implicitly on Convention grounds. In answering this question it is necessary to recognise that there is a fundamental difference between the social services functions of a local authority and the immigration functions of the Secretary of State. This distinction was articulated by Hale LJ in R v. Wandsworth London Borough Council, ex parte O 2000 1 WLR 2539. 2557: ..."
"It makes much more sense both in practice and in principle to leave the task of deciding upon need to the provider of health, education or social services and the task of deciding whether or not a person should be allowed to remain here to take advantage of those services to the immigration authorities."
"61. It is true that as a result of Schedule 3 to the 2002 Act local authorities are now required to make an assessment of immigration status in certain respects. For example, as I have already said, they must decide whether an applicant is in the United Kingdom in breach of immigration laws ... . Nevertheless, it would be contrary to the division of functions provided by Parliament to require local authorities to decide for the purposes of Schedule 3 of the 2002 Act whether a non-asylum seeking applicant to whom paragraph 6 does not apply is entitled to leave to remain. That question is a matter for the Secretary of State to decide in accordance with the immigration rules and his immigration policies.
62 I find it difficult to conceive of circumstances in which a local authority could properly justify a refusal to provide assistance where to do so would deny to the claimant the right to pursue an arguable application for leave to remain on convention grounds. The second reason given in Kimani ... for upholding the local authority's refusal to provide assistance was that there was no infringement of article 8 in requiring the claimant to return to Kenya pending the determination of her appeal. She could continue to prosecute her appeal and to require her to return to Kenya pending the determination of her appeal did not infringe her article 8 rights. It is implicit in this reasoning that, if she had been unable to prosecute her appeal from Kenya, there would have been a legal impediment to requiring her to return.
63. I accept the submission of Mr Knafler that in enacting Schedule 3 Parliament cannot reasonably have intended to confer a general power on local authorities to pre-empt determination by the Secretary of State of applications for leave to remain. In my judgment, save in hopeless or abusive cases, the duty imposed on local authorities to act so as to avoid a breach of the applicant's Convention rights does not require or entitle them to decide how the Secretary of State will determine an application for leave to remain or, in effect, determine such an application themselves by making it impossible for the Applicant to pursue it."
"I conclude therefore that when applying Schedule 3, a local authority should not consider the merits of an outstanding application for leave to remain. It is required to be satisfied that the application is not "obviously hopeless or abusive" to use the words of Maurice Kay LJ. Such an application would, for example, be one which is not an application for leave to remain at all, or which is merely a repetition of an application which has already been rejected. But, obviously hopeless or abusive cases apart, in my judgment a local authority which is faced with an application for assistance pending the determination of an arguable application for leave to remain on Convention grounds, should not refuse assistance if that would have the effect of requiring the person to leave the United Kingdom, thereby forfeiting his claim."
"I accept the submission of Mr Knafler, that, where the three conditions identified at paragraph 53 above are satisfied, the financial situation of the local authority is irrelevant. Were the position to be otherwise, the person's application for leave to remain would in fact be rejected on the basis that the 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) of a wholly different set of criteria (weighing the need to maintain a firm and orderly immigration policy). That is obviously incoherent. It is also unfair and arbitrary. It is unfair and arbitrary because it means that the outcome of the 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.
73. Different considerations apply where the person who is applying for assistance from the local authority does not have an outstanding application for leave to remain. In that situation the local authority is entitled to have regard to the calls of others on its budget in deciding whether an interference with a person's article 8 rights would be justified and proportionate within the meaning of article 8.2."
(1) that, as explained in Liu and Ciliz, article 8 provides expressly for the rights to family and private life but that implicitly includes the right for procedural protection which is fair and effective and such as to afford due respect to the safeguarded rights;
(2) that paragraph 3 of Schedule 3 to the 2002 Act requires an authority to consider whether and to what extent the provision of support under the 1989 Act is necessary to avoid a breach of a person's Convention rights; in principle that would include the right to a relevant procedural safeguard;
(3) that necessarily each case is to be considered on its own facts and circumstances;
(4) that, where there is an outstanding application for leave to remain, an authority should respect the right to that procedural safeguard under article 8, at least in cases that are not obviously hopeless or abusive; and
(5) that, as explained in Daley-Murdock, the procedural safeguard for article 8 rights under the 2002 Act includes the opportunity for appeal against removal directions following the refusal of leave to remain; the existence of that statutory safeguard made it unnecessary for the court in Daley-Murdock to consider the differences between an appeal on merits and judicial review, whatever the intensity of review, having regard to the approach to Convention rights explained by Lord Hoffmann in SSHD v Nasseri  UKHL 23;  1 AC 1.
(1) The Claimant had made it clear that she and her family would not voluntarily return to Nigeria, notwithstanding the refusal of leave to remain.
(2) Furthermore, at the time of the decision, it had been explained that not only had the Claimant been seeking an immigration decision from UKBA so as to enable her and the family to appeal, but also that a further application for leave to remain based on new evidence was intended to be made.
(3) The effect of the decision to withdraw support was inevitably that the Claimant and her family would be compelled to leave the United Kingdom and return to Nigeria.
(4) That would have the effect of denying the Claimant and her family of their procedural safeguard in respect of their article 8 rights, including, in particular, the right of the oldest child to a private life in the United Kingdom, having regard to the length of his residence, reflected in the then intended amendment of the Immigration Rules.
(5) It is plain from the Defendant's assessment that there was no proper consideration, if any, of the effect on that Convention procedural safeguard; moreover there was no finding that the putative appeal or any new application for leave to remain would be obviously hopeless or abusive; in its response to the protocol letter the Defendant made clear that any further application was a matter for UKBA to consider and that the authority was not able to comment on the strength of the Claimant's case.
(6) That was also consistent with the Defendant's acceptance that with the making of the further application for leave on the 7 December 2012 it was no longer open to the Defendant to refuse support, at least until the final decision on that application.
(7) Furthermore, on the available evidence there were demonstrably strong prima facie grounds to support an appeal, having regard to the then proposed amendment to the rules and the length of the time the children had been in this country and the evidence from the Claimant in that respect.
(8) While potentially the period before an immigration decision in removal directions from UKBA was indefinite, that is a matter in the hands of UKBA in accordance with the statutory framework and in any event, in light of the guidance that has been discovered there is the real prospect for an early immigration decision in that respect.
(9) A decision requiring respect for the procedural safeguards under the statute for the Claimant's article 8 rights and those of her family would be consistent with the authorities referred to above. It would be a decision made on the particular facts and circumstances of the present case so as to ensure that there is effective and fair protection for those rights; it would also be consistent with the continuing protection accepted by the Defendant with the making of the new application; insofar as those principles apply to other cases with similar factual or circumstantial characteristics, that would accord with the proper application of the Convention including the protection of Convention rights and would not set any inappropriate precedent or lead to the opening of any floodgates, as suggested on behalf of the Defendant.
(1) It remained the case that the Claimant and her family were all unlawfully present in the country; moreover their applications for leave to remain had been consistently refused on numerous occasions.
(2) The case for the Claimant essentially depended on demonstrating that the decision in Clue required the Defendant to defer in its decision making to the UKBA, even where there was no outstanding application or appeal.
(3) That is manifestly not what was decided in Clue, having regard to paragraph 73 of the judgment of Lord Justice Dyson where the Lord Justice explains that the approach set out in that decision had no application where there was no outstanding application to be determined.
(4) In any event, the requirement for procedural protection of article 8 rights was appropriately secured through the opportunity for judicial review, in respect of UKBA's refusal of leave to remain and, so far as necessary, the Defendant's decision on the merits of the article 8 grounds, in accordance with normal administrative review principles; the comments of Lord Justice Sullivan in Daley-Murdock had no specific application to the situation where an authority is considering the need for support under the 1989 Act.
(5) That is consistent with the UKBA guidance dated the 13 February 2012, which only applies where there is a formal letter before action or protocol letter, plainly anticipating proposed proceedings for judicial review.
(6) There is nothing inconsistent or unreasonable in the approach outlined above when compared with that taken to the further application for leave to remain in the present case; the exercise of the authority's powers and duties under the 1989 Act must respond to the particular circumstances at time at which it came to be considered including whether or not for the purposes of the 2002 Act there was an outstanding application which was not obviously hopeless or abusive.
(7) A decision allowing judicial review in the present case would mean that, notwithstanding the decision of UKBA to refuse leave to remain, authorities across the country would be required to fund illegal immigrants such as the Claimant and her family for an indefinite period, depending on when and if UKBA chose to issue removal directions; the consequence would be to encourage those refused leave to remain illegally in this country, a result that would be directly contrary to the policies underpinning the 2002 Act.
Note 1 This rule has been further amended, but this is not material to the present consideration. [Back]
Note 1 This rule has been further amended, but this is not material to the present consideration. [Back]