COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE CHARLES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
SIR SCOTT BAKER
| BIRMINGHAM CITY COUNCIL
|- and -
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Mr Stephen KNAFLER QC and Ms NADINE FINCH (instructed by Public Law Solicitors) for the Respondent
Mr Jonathan MOFFETT (instructed by Treasury Solicitors) for the Interested Party
Mr Simon Cox (instructed by Shelter) for the Intervener
Hearing dates : 16 & 17 March 2010
Crown Copyright ©
Lord Justice Dyson:
"The questions are: in the scenario that a person is unlawfully present in the United Kingdom within paragraph 7 of Schedule 3 of the 2002 Act, and is destitute and would otherwise be eligible for services of a kind listed in paragraph 1 of Schedule 3, and has made an application to the Secretary of State for leave to remain that expressly or impliedly raises Convention grounds under Article 3 or 8 or some other ground, and a local authority is considering whether it is necessary to provide support or assistance by reference to paragraph 3 of Schedule 3, (1) Does Schedule 3 of the 2002 Act read with Section 6 of the Human Rights Act require or permit the local authority to reach decisions by taking into account either relevant policy of the Secretary of State in relation to leave to remain or the evaluation of the Secretary of State under the Convention? (2) Does rational and/or proportionate decision-making require the Secretary of State and the local authority to reach Convention assessments in a co-ordinated manner and at the same time? In particular, does it require the Secretary of State to expedite his consideration of applications for leave to remain (in particular in cases involving children)?"
"(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
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."
"(1) A person to whom this paragraph applies shall not be eligible for support or assistance under….(g) section 17…of the Children Act 1989…"
Para 2 provides: "Paragraph 1 does not prevent the provision of support or assistance (a) to a British citizen, or (b) to a child". Para 3 provides:
"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".
Para 7 provides:
"Paragraph 1 applies to a person if—
(a) he is in the United Kingdom in breach of the immigration laws…, and
(b) he is not an asylum-seeker."
The policies of the Secretary of State
"to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 10 or over or where, having come to the United Kingdom at an early age, they have accumulated 10 years or more continuous residence."
"For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence."
"(1) start from the position (the presumption) that it is only in exceptional cases that indefinite leave to remain will not be given, but
(2) go on to consider the extent to which any of or a balancing of all the factors mentioned in [DP 5/96] makes the case an exceptional one."
"The fact that a child has spent a significant period of their life in the United Kingdom will continue to be an important relevant factor to be taken into account by caseworkers when evaluating whether removal of their parents is appropriate. Any decision to remove a family from the UK will continue to be made in accordance with our obligations under the European Convention on Human Rights (ECHR) and the Immigration Rules.
The withdrawal of DP 5/96 and replacing it with consideration under the Immigration Rules and Article 8 of the ECHR will ensure a fairer, more consistent approach to all cases involving children, whether accompanied or unaccompanied, across UKBA."
Effect on outstanding applications for leave to remain of the departure of an applicant from the UK
"where a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn as soon as the passport is returned in response to this request."
The human rights assessment
"There is no assurance that members [of] the extended family do still live in Jamaica or that if they do they can be located given that contact with them has been severed already. However their presence is not essential to preserve family life for Amalea and her 4 children in that country.
I therefore conclude that it is not necessary to provide financial support and accommodation under s17 of the Children act 1989 to prevent a breach of rights under Article 8 of the ECHR.
Although Amalea has reported that neither she nor her children have contact with any other family member in the UK I do not consider that the position in relation to the provision of support would alter were any contact to be resumed as I understand that Article 8 does not allow individuals to choose to remain in a particular country, and that the existence of a family life does not require state support to maintain that family life in a particular location. I have also been advised that were the authority's decision effectively to require one, or all, members of the family to leave the UK, that would not necessarily constitute an unlawful and disproportionate interference with Article 8 rights."
"In summary I am confident that the welfare of children in Jamaica is sufficiently protected so as to give me no cause for concern about the children taking up residence in Jamaica with their mother."
"For that reason I have concluded that the Authority's refusal to support Ms Clue and the family here in Birmingham would not cause a breach of her, or the wider family's rights under the ECHR. As the failure to support Ms Clue and her children would not cause a breach of her Convention rights, the Authority's support for her, with the family, cannot be said to be "necessary" and so the Authority will not continue to accommodate Ms Clue and her children in the longer term, subject to the local authority's continuing obligations to the children in accordance with section 20 and the other material provisions of the Children Act 1989.
The Authority will, however, provide assistance to Ms Clue and her children to travel to Jamaica and may also provide a resettlement grant to assist the family to settle in that country if necessary and appropriate."
The judgment of Charles J
"..any decision-maker, whether it be the local authority or the court, has to have regard, when considering the balance at the second part of Article 8, to the reasons underlying the presumption and approach taken by the Secretary of State, which have been explained and set out by the Court of Appeal in the NF decision by reference to what Government has said. That is not being bound by the policy that creates and applies the presumption; it is having regard to the reasons which underlie that policy. Absent such an approach, there would be a lack of consistency in decision-making by public authorities as to the relevant central point: namely has there been a breach of Convention rights in respect of a family who have a child or children who have been here for 7 years".
The parties' submissions in outline
The rights to respect for private life: some general comments
"The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.
As to the first point, the Court notes that this is already reflected in its existing case law (see, for example, Sen v. the Netherlands, no. 31465/96, § 40, 21 December 2001, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 47, 1 December 2005) and is in line with the Committee of Ministers' Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification (see paragraph 38 above).
As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the "Boultif criteria" to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age (see Mokrani v. France, no. 52206/99, § 31, 15 July 2003). Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there."
"It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy "family life" there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III) and can sometimes embrace aspects of an individual's social identity (see Mikulic v. Croatia, no. 53176/99, § 53, ECHR 2002-I), it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of "private life" within the meaning of Article 8. Regardless of the existence or otherwise of a "family life", therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the "family life" rather than the "private life" aspect.
60. In the light of the foregoing, the Court concludes that all the above factors (see paragraphs 57-59) should be taken into account in all cases concerning settled migrants who are to be expelled and/or excluded following a criminal conviction."
R (Kimani) v Lambeth Borough Council
"The objective of Schedule 3 [of the 2002 Act] can readily be inferred from its content. It is to discourage from coming to, remaining in and consuming the resources of the United Kingdom certain classes of person who can reasonably be expected to look to other countries for their livelihood."
"We do not consider that an asylum seeker is to be equated, in the present context, with a foreign national seeking to establish a right of residence. It is not reasonable to expect an asylum seeker, who may yet establish that she has refugee status, to look for sustenance or support to her home country, where she may have a well founded fear of persecution. The same is not true of a foreign national seeking to establish a right of residence. There is no obvious reason why such a person should expect to receive support from this country, rather than her home state, pending the determination of her claim to a right of residence."
"The second point is independent of the first. Respect for family life does not require that the claimant should remain in this country while her appeal is considered. The European Court of Human Rights has always respected the right of a state, subject to treaty obligations, to control the entry of non-nationals into its territory: see, for instance, Abdulaziz v United Kingdom (1985) 7 EHRR 471, 497. Strasbourg jurisprudence would certainly not require this country to permit a claimant, seeking to enter this country for family reasons, to be permitted to enter, or to remain here on public support, pending the resolution of her disputed claim."
"No authority has been placed before us which bears directly on the issue we have to resolve. We must decide it as a matter of principle. We do not consider that either article 3 or article 8 imposes a duty on the state to provide the claimant with support. She has not been granted leave to enter or remain in this country. She has been permitted to remain here to pursue an appeal in which she advances, inter alia, an article 8 claim, which we consider to be clearly specious. Even if it were not, no infringement of article 8 would result from requiring her to return to her own country pending the determination of her appeal. There is no impediment to her returning to her own country. A state owes no duty under the Convention to provide support to foreign nationals who are permitted to enter their territory but who are in a position freely to return home. Most people who fall into this category are given leave to enter on condition that they do not have recourse to public funds."
"Rather it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad."
Chikwamba is clearly an important decision in relation to the discharge by the Secretary of State of his immigration functions. But it is not concerned with the very different role of a local authority in relation to Schedule 3 to the 2002 Act. I do not consider that Kimani or Grant have been undermined by Chikwamba. In my judgment, they remain binding on this court and should be followed unless they can be distinguished.
R (Grant) v Lambeth Borough Council.
"The claimant and her children could not provide for themselves and were in need, but the local authority had limited resources subject to heavy demands, and it could enable the claimant and her children to maintain their rights under article 8 of the Convention and avoid destitution by making arrangements for (1) them to travel to her homeland, and (2) their accommodation for a short time until the travel arrangements could take effect."
"In my judgment, for the reasons I have given when dealing with the submissions made by Mr Knafler, the submissions made by Mr Béar on behalf of Lambeth are correct, and I would therefore allow this appeal, set aside the judgment of the judge and dismiss the claim for relief. It is to my mind important to recognise from the outset, and not to lose sight of, the fact that the claimant and her two elder children are illegally here, and have no right to be accommodated. The claimant cannot create such a right by making an application for leave to remain, or by appealing against a decision which has gone against her. On the other hand Lambeth, which has provided her with accommodation thus far, cannot act in such a way as to interfere with her Convention rights. The offer it has made seems to me to safeguard those rights. At present, in my judgment, it need do no more."
"I conclude, therefore, that there is no general principle of legality excluding certain people from access to social services, as opposed to specific statutory provisions which may do so. This is scarcely surprising. Local social services authorities are skilled at assessing need and arranging the appropriate services. That is their statutory duty under section 47 of the Community Care Act 1990. It is also the professional skill of social workers. They are not and never have been professionals in making moral judgments as between particular people with identical needs. They have no particular skills or facilities for assessing whether or not a person is subject to immigration control or has a real choice about whether or not to return to his home country. It is the Secretary of State, through the Immigration and Nationality Directorate, who knows the individual's immigration status, has routine access to the local country information which might make such judgments possible, and has the power to determine whether or not a person should be allowed to remain here, and to remove him if he should not.
Further, as Simon Brown LJ has demonstrated, immigration status is a complex matter. To arrive at a definition of those whose presence here was so questionable as to give rise to an assumption of ineligibility for services would be a difficult task. Should it depend upon whether or not a criminal offence is committed (bearing in mind that the offence in question is not a particularly serious one); or upon whether or not the person concerned can currently be removed from the country immediately (which is more complicated still); or upon whether or not the person currently has a permission to be here which does not preclude his resort to such services? Where does the question of choice between staying and returning come into the equation?
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."
"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 her child".
"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 court] recalls in this respect that the Convention does not in principle prohibit Contracting States from regulating the entry and length of stay of aliens (see the Berrehab judgment referred to above, at 330-331, para 28). Nevertheless, the Court also reiterates that, whilst Art 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 Art 8."
"30. I am therefore very conscious of the consequences of some of my decisions…for adults and children who have lived in this country for a considerable period of time where leave to remain is likely to be granted and they nevertheless leave a familiar environment including schools, friends and sometimes family as a result of assessment. As a social worker with experience of working with families, I am very much aware of the needs of children, to be given the security of knowledge of where they will be raised and the prospect of established roots and relationships in that country.
31. However, as more fully explained above, I have to make these difficult decisions applying the appropriate framework, taking into account the other demands from other people with significant needs on the local authority's budget and having regard to the fact that families do move for economic reasons."
The human rights assessment in this case
The 6 hypothetical "scenarios"
The second issue: does rational and/or proportionate decision-making require the Secretary of State and the local authority to make Convention assessments in a co-ordinated manner and at the same time?
"In preparation for consideration of these cases, my client has reviewed its priorities and has decided to prioritise consideration of cases supported by local authorities because individuals in this category are not eligible for asylum support. It will therefore prioritise local authority supported cases which fall within either the non asylum cases or its existing asylum casework.
In paragraph 52 of her witness statement, Ms Miles referred to section 55 of the Borders Citizenship and Immigration Act 2009 and the publication of guidance on that duty. In pursuance of that duty, the Case Resolution Directorate reviewed its asylum caseload in order to identify and conclude the few remaining cases involving unaccompanied asylum seeking children with outstanding applications. This work was done in liaison with the local authorities concerned. CRD will turn its attention to reviewing its operations in relation to prioritising and expediting consideration of cases in order to ensure that it achieves timely decision making for children. This review is part of the overall process of ensuring that UKBA discharges its immigration functions consistently with its duty to have regard to the need to promote and safeguard the welfare of children. "
Sir Scott Baker
Lord Justice Etherton