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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> OA, R (on the application of) v London Borough of Camden & Anor [2019] EWHC 2537 (Admin) (15 August 2019) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2537.html Cite as: [2019] EWHC 2537 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
____________________
THE QUEEN ON THE APPLICATION OF | ||
- and - | ||
LONDON BOROUGH OF ![]() | Defendant | |
- and - | ||
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Interested Party |
____________________
MS D RHEE QC (instructed by the London Borough of Camden)
appeared on behalf of the Defendant.
MR A LENANTON (instructed by the Government Legal Department) appeared on behalf of the Interested Party.
____________________
Crown Copyright ©
If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.
JOHN KIMBELL QC (SITTING AS A DEPUTY HIGH COURT JUDGE):
"For the reasons set out in the CAFA [child and family assessment]Camden
has concluded that if you decide to remain in the UK you will be able to continue to rely upon your support network, which includes in particular [
OA's]
father, your cousin and your sister, and that therefore you and your son do not need support under section 17 of the Children Act. The authority considers it is entitled to come to this conclusion because of your proven ability to manage since you arrived here from Nigeria in 2016 and because it is not satisfied with your account of how you can no longer rely on that support network, even though you now have a baby."
"Further, even if you are destituteCamden
is prohibited from providing you with support under section 17 [of the Children Act], by reason of Schedule 3 to the Nationality, Immigration and Asylum Act 2002."
So there are two parts of the decision that was reached by the authority.
"I emphasise that even if you have a derivative right to reside under regulation 16(5) [of the Regulations], this does not affectCamden's
decision not to continue to support you and your son because the primary reason for this is that it is not satisfied that you are destitute.
In the circumstances the authority considers that 14 days is sufficient time for you to make alternative arrangements and so you must leave your accommodation by 4 pm on 09/07/2019." (Emphasis in original)
"If you disagree with any of the above or with the contents of the enclosed documents what you or your solicitors say will be taken fully into account. I would be grateful if you would peruse all the documents I have given you today and let me know by Friday 28th June in person or in writing or through your solicitor whether you have any comments on those documents as your views are also very important in ensuring that documents reflect what has been written and taken your comments on board."
It is common ground that the letter was delivered by hand to the claimant's mother on the 25th, which I think was a Tuesday, and the last paragraph of the letter is clearly giving her until the Friday of that week to provide any further comments.
(1) A child and family assessment completed, it is said, internally on 5 June 2019;
(2) A nonstandard document headed "chronology of misinformation"; and
(3) A human rights assessment form on a standard template.
"The claimant's birth was registered shortly after he was born by his mother and father. The claimant's father has applied for the claimant and the claimant's sister … to receive Finnish passports."
Attached to that letter was a printout certifying that the application for Finnish citizenship had been submitted on behalf of OA.
The letter also gave an explanation of some of the matters referred to in the "chronology of misinformation". The local authority was invited to reconsider their position.
"The local authority has considered your letter and will consider all the comments you have made and will review the assessment in light of those comments. We note that you make relevant comment on the human rights assessment. Do you wish to make any comment?"
Ground 1
Ground 2
Ground 3
Analysis
"Whether or not a child is 'in need' for [the purposes of the Children Act 1989] is a question for the judgement and discretion of the local authority, and appropriate respect should be given to the judgements of social workers, who have a difficult job. In the current climate, they are making difficult decisions in financially straitened circumstances, against a background of ever greater competing demands on their ever-diminishing financial resources."
"... satisfy themselves that there has been sufficiently diligent enquiry before those conclusions are reached, and that if they are based on rejection of the credibility of an applicant, some basis other than 'feel' has been articulated for why that is so."
"Fairness of course demands that any concerns as to [whether or not previous support is available any longer or why it has disappeared, and any conclusions that the local authority have drawn about this] are put to the applicant so that she has a chance to make observations before any adverse inferences are drawn from gaps in the evidence, but otherwise, the local authority is entitled to draw inferences of 'non-destitution' from the combination of (a) evidence that sources of support have existed in the past and (b) lack of satisfactory or convincing explanation as to why they will cease to exist in future." (Emphasis added)
"... it is axiomatic that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him."
"... generally [the duty of fairness] will require the decision maker to identify in advance areas which are causing him concern in reaching the decision in question." (Emphasis added)
"A person ('P') who is a family member of a qualified person residing in the United Kingdom under paragraph (1) ... is entitled to remain in the United Kingdom for so long as P remains the family member of that person or EEA national."
So on the face of those Regulations it would appear that, as long as it is arguable that the claimant's father is a self-employed person or someone seeking work or otherwise a qualified person, then it would appear on the face of the Regulations that the claimant had a right to stay and reside in the United Kingdom.
"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 the 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 an 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.
Conclusion
CERTIFICATE Opus 2 International Ltd. Hereby certifies that the above is an accurate and complete record of the judgment or part thereof. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 admin@opus2.digital This transcript has been approved by the Judge |