Binomugisha v London Borough of Southwark [2006] EWCH 2254 (Admin)

The claimant had claimed asylum as a child. His claim had failed. His appeals based on Articles 3 and 8 of the ECHR were dismissed. Once an adult, he made a further application to the Home Office for leave to stay in the UK on the grounds that removal would lead to a breach of his Article 8 rights. This, it was argued, arose from his poor mental health condition and life established in the UK.

He sought support from the Local Authority both under the ‘leaving care’ provisions of the Children Act 1989 as a ‘former relevant’ child and under section 21 of the National Assistance Act 1948 as an adult with care needs.

As he was unlawfully in the UK, Section 54 of the Nationality, Immigration and Asylum Act 2002 applied and he was not eligible for any services unless necessary in order to avoid a breach of human rights.

The Local Authority considered that support was not necessary in order to avoid a breach of human rights. They considered the relevant matters such as they were set out in the House of Lords Judgement in R (Razgar) v SSHD [2004] 2 AC 368:

“(1) Would the proposed removal be an interference by a public authority with the existence of the applicant’s right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved”

The local authority concluded that returning to his home country Uganda would be a viable option.

The judge in the High Court considered however that the Local Authority would be trespassing on matters which are the remit of the immigration authorities by making such a decision as there was a claim for leave to remain pending with that authority. The Court considered that the Local Authority should only consider whether the Article 8 claim was manifestly unfounded. Only if it was manifestly unfounded could it be considered that returning home was a viable option.

This case can be contrasted against cases such as R (Kimani) v Lambeth [2004] and Grant v Lambeth [2004] where the local authority was able to make a decision that the person could return to their home country despite their having applications for leave to remain in the UK still pending with the Home Office. In the case of Kimani it was considered that an argument based on separation from a husband with whom she had already ceased to have a relationship was “manifestly unsustainable.” In each of these cases the application with the Home Office had not been made on Human Rights grounds that the local authority was then also considering.

This case can also be compared to the case of R (AW) v Croydon; R (A,D & Y) v Hackney [2005] where it was considered that if a person had made a further application for leave to remain on Article 3 grounds, the local authority could consider whether returning to the home country was nonetheless a viable option only in the “clearest of cases.”

The Court in Binomugisha also found that even where it is established that a person’s eligibility for accommodation and financial support under the leaving care provisions is barred by Section 54 and Schedule 3 of the Nationality Immigration and Asylum Act 2002 they may continue to remain eligible to have a personal advisor and maintenance of a pathway plan. Thus young people should continue to receive “advice” from their local authority even though they may cease to be eligible for “support or assistance” under the leaving care provisions set out in Schedule 3 to the 2002 Act. Local authorities may wish to consider carefully how future plans are made and recorded in pathway plans, having consideration for the likelihood that the young person will not be able to lawfully remain in the UK.

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