The Queen (on the application of AW) v London Borough of Croydon The Queen (on the application of A, D, and Y) v London Borough of Hackney & Secretary State (interested party) [2005] EWHC 2950 QB

This case concerned 4 applications for judicial review challenging the decision of 2 local authorities in relation to the provision of support for failed asylum seekers.  The outcome is that local authorities are under a duty not to provide support to failed asylum-seekers in the UK in breach of the immigration laws except where not to do so would lead to a breach of a Convention right.

AW, A, D, and Y were each late asylum-seekers who failed to claim asylum at their port of entry to the UK.  AW, A and Y were also in breach of s11 National Immigration & Asylum Act 2002 (NIAA) in that they did not have leave to enter or remain in the UK.

AW requested support under s4 Immigration and Asylum Act 1999 (IAA), and later under s21 National Assistance Act 1948 (NAA).  Both requests were rejected by the authority.

D, A and Y each claimed support under s21 NAA but were rejected by their respective local authorities, Croydon and Hackney, on the ground that they were ineligible for support.  Each applicant also made further representations to the Secretary of State in support of their claim for asylum.  D and Y’s representations were rejected; AW and A awaited a decision.  There were 3 issues on which the Court needed to make a ruling:

(1) Was a failed asylum-seeker in breach of s.11 NIAA, excluded by Schedule 3 of the Act, from any support or assistance from the National Asylum Support Service (NASS) or local authority?
(2) Where a failed asylum-seeker satisfied s21 NAA, and the provision of support was necessary to avoid a breach of their Convention rights, was the provision to be made by a local authority under s.21 NAA or by the NASS under s4 IAA 1999?
(3) If the Article 3 threshold would otherwise be met, did a fresh claim based on the UN Convention for Refugees and Article 3 of the ECHR, by a failed asylum-seeker, make it necessary  for support to be provided in order to avoid a breach of Convention rights, pending the Secretary of State’s decision on additional representations?

A failed asylum-seeker who was in the UK in breach of immigration laws under s11 of the NIAA was, by virtue of Schedule 3 Paragraph 7, ineligible for the support or assistance identified in Schedule1 paragraph 1, subject to the exceptions in Schedule 3 paragraphs 2 and 3.  Parliament had clearly intended to distinguish between those who claimed asylum at the port of entry and those who claimed it later, treating the former group more generously. There was a clear policy in the legislation to discourage such late applications and encourage prompt applications at the port of entry.  Parliament had intended more generous provision to be made for asylum-seekers seeking asylum at the port of entry.  By enacting Schedule 3 it had intended to distinguish between failed asylum-seekers who were in the UK in breach of immigration laws and those who were not.   R v Secretary of State for the Home Department ex parte Adam, Limbuela, Tesema applied.

The Court concluded that a failed asylum-seeker who was in the UK in breach of the immigration laws within the meaning of s11 NIAA was by virtue of paragraph 7 of Schedule 3 ineligible for the support or assistance identified in s21 or 29 of the NAA or that which is provided by NASS or the Secretary of State under the IAA.

Under s21 (1)(a) NAA local authorities are under a duty to make arrangements to provide accommodation for persons ordinarily resident in their area or other persons in urgent need of care and attention.  These persons have to be over 18 and who by reason of age, disability or illness or other circumstance are in need of care and attention not otherwise available to them.  Section 4 of IAA states that the Secretary of State may provide or arrange the provision of facilities for the accommodation of a person, if he was an asylum-seeker or his claim for asylum was rejected.  Denial of support to a failed asylum-seeker would not breach any Convention rights where there were no practical or legal obstacles to prevent him returning to his country of origin.  Section 4 IAA (above) allowed the provision of support when there were obstacles, commonly called ‘hard cases support’.  If the failed asylum seeker satisfied the criteria in s21 (1) (a) NAA however, the question arose as to whether there was a duty on the local authority in his place of residence to provide such assistance in order to prevent a breach of his Convention rights, or whether the local authority was entitled to decline to provide assistance on the ground that this was the responsibility of the Secretary of State under s4 of the IAA.  The Secretary of State maintained that he was not under duty to act because it was the responsibility of the local authority under s21 which created a special regime for the infirm destitute.  The local authorities stated that it was the responsibility of the Secretary of State under s4 which created a special regime for the provision of failed asylum-seekers who needed care and attention which was not otherwise available to them.  Section 21 (8) provides that “nothing in s21 shall authorise or require a local authority to make any provision authorised or required to be made by that or any other authority by or under any enactment.”  The Court looked to the Asylum Support Regulations 2000 for guidance.  Under regulation 6 (3) (a) the Secretary of State was required to take account of “any other support” available such as that under s21 NAA.  If such support was available then the applicant was not “destitute” and would not qualify for support under s4 (2) of the 1999 Act.  Accordingly, the Court decided that where a failed asylum-seeker met the criteria for s21 NAA then it was necessary in order to prevent a breach of that person’s Convention rights, for the local authority to provide assistance under this section.

The Court held that the necessity for support would depend on whether the fresh claim looks like a fresh claim and not a repetition of points previously made nor manifestly not an asylum claim at all.  Furthermore, the making of what is asserted to be a fresh claim would not automatically trigger the right to continuing support as an asylum-seeker.  Only a successful fresh claim would do this.  Local authorities were under a duty not to provide support to failed asylum-seekers in the UK in breach of the immigration laws except where not to do so would lead to a breach of a Convention right.  It therefore followed that they were required to take decisions relating to the immigration status of individuals.  In making the decision the authority concerned should have regard to all the relevant circumstances including matters which were alleged to constitute a fresh claim.  It was necessary to proceed on a case by case basis considering the facts of each individual case with care.  It would not always be necessary for support to be provided in order to avoid a breach of Convention rights, whilst awaiting a decision of the Secretary of State on the representations.  R (on the application of Nigatu) v SS Home Department followed.   Applications refused.

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