QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of M)
|- and -
|THE LONDON BOROUGH OF ISLINGTON
|- and -
|SECRETARY OF STATE FOR THE
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Bryan McGuire and Mr Paul Turner, instructed by its Legal Department, appeared on behalf of the Defendant
Miss Kristina Stern, instructed by the Treasury Solicitor, appeared on behalf of the Interested Party
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
"Following the referral you made in regards to the above family's financial and housing situation, I am writing to inform you that I have completed my assessment on the family.
From the assessment it was obvious that the family have financial difficulties with very limited support network in the U.K. Unfortunately, this Department is unable to provide the ongoing financial support they require towards their rent and day-to-day subsistence.
The Department is of the opinion that it will be in the best interest of [the child] that [the claimant] considers returning to Guyana. This is because we feel that both [the child and the claimant] will be better supported by extended family members in Guyana."
In the letter the allocated worker did not expressly repeat the offer to fund travel to Guyana; but such was no doubt implied. Islington's written 'core assessment' of the child's needs was sent to the claimant by her solicitors only on 3 March 2003. The document records that its compilation began on 4 December 2002 and that it was completed on 5 December 2002 and was updated on 30 January 2003.
"Two further matters: what Islington is doing is making an offer. It seems to us that this is inherently unlikely to amount to a breach of Convention rights. Moreover, as we have been careful to explain, we have not made any decision as to what would happen in the event that the offer was refused, even after having been found by the court to have been lawfully made. This is not a case where a decision has been made, still less a threat made, to take your child into care. Also we note that it is contended that Islington has failed to take into account that you would reject the offer. That is not so. In the event that you refuse to accept the offer made even following court proceedings, then Islington would continue to assess what is in the best interests of your child in the light of developing circumstances."
On behalf of Islington Mr McGuire accepts that the basis of the decision dated 27 March, as of the decision dated 20 January, was a conclusion that the return of the child with the mother to Guyana would best safeguard and promote the child's welfare.
a) the prohibition does not apply to support for a child (para. 2(1)(b));
b) it "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 person's rights under the Convention of 1950 (para 3); and
c) it does not prevent the provision of support or assistance under regulations made under paras 8, 9 or 10 (para. 2(1)(c)).
" Travel assistance
8. The Secretary of State may make regulations providing for arrangements to be made enabling a person to whom paragraph 1 applies by virtue of paragraph 4 or 5 to leave the United Kingdom.
9. (1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person to whom paragraph 1 applies pending the implementation of arrangements made by virtue of paragraph 8.
(2) Arrangements for a person by virtue of this paragraph -
(a) may be made only if the person has with him a dependent child, and
(b) may include arrangements for a dependent child.
10. (1) The Secretary of State may make regulations providing for arrangements to be made for the accommodation of a person if -
(a) paragraph 1 applies to him by virtue of paragraph 7, and
(b) he has not failed to co-operate with removal directions issued in respect of him.
(2) Arrangements for a person by virtue of this paragraph –
(a) may be made only if the person has with him a dependent child, and
(b) may include arrangements for a dependent child."
(a) in the case of the E.E.A classes, to make arrangements for them to leave the UK and, if they have a child with them, for their accommodation pending their departure; and
(b) in the case of the fourth class, and provided both that they have a child with them and that they have not failed to co-operate with removal directions issued in respect of them, to make arrangements for their accommodation.
There is no power to make regulations in respect of the third class.
" Power for local authorities to arrange
travel and provide accommodation
3. (1) A local authority may make arrangements ("travel arrangements") enabling a person with refugee status abroad or who is an EEA national to leave the United Kingdom to travel to the relevant EEA State.
(2) A local authority may make arrangements for the accommodation of a person in respect of whom travel arrangements have been or are to be made pending the implementation of those arrangements.
(3) A local authority may make arrangements for the accommodation of a person unlawfully in the United Kingdom who has not failed to co-operate with removal directions issued in respect of him.
(4) Arrangements for a person by virtue of paragraph (2) or (3) –
(a) may be made only if the person has with him a dependent child, and
(b) may include arrangements for that child.
Requirements relating to travel and
4. (1) Travel arrangements and arrangements for accommodation must be made so as to secure implementation of those arrangements at the lowest practicable cost to the local authority.
(2) Subject to the requirements in paragraph (1), travel arrangements made in respect of a person must be made so that the person leaves the United Kingdom as soon as practicable.
(3) Travel arrangements and arrangements for accommodation may not include cash payments to a person in respect of whom the arrangements are made and must be made in such a way as to prevent the obtaining of services or benefits other than those specified in the arrangements.
(4) A local authority must have regard to guidance issued by the Secretary of State in making travel arrangements and arrangements for accommodation."
"GUIDANCE TO ASSIST AUTHORITIES TO DETERMINE WHETHER TO MAKE TRAVEL ARRANGEMENTS/GRANT TEMPORARY SHORT-TERM ACCOMMODATION
27. The Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 (hereafter referred to as "the Regulations 2002") give limited powers to local authorities to make arrangements for:
(a) Nationals of other EEA Member States; and
(b) Those with refugee status in another EEA Member State
to travel back to that member state. No arrangements may be made in respect of failed asylum seekers and those unlawfully present in the UK – responsibility for making travel arrangements for these groups of person rests with the Home Office Immigration and Nationality Directorate.
28. Additionally, Local Authorities are also granted a power under the Regulations 2002 to grant temporary short-term accommodation to some classes of person listed in Schedule 3 pending departure from the United Kingdom. The powers to grant temporary accommodation are limited to the following classes of person who have with them a dependent child:
(a) Nationals of EEA states other than the UK;
(b) Those with Refugee status in another EEA Member State; and
(c) Those unlawfully present in the UK.
29. There is no power to grant temporary accommodation to failed asylum seekers who are refusing to co-operate with removal directions, regardless of whether they have with them a dependent child. In cases where there is a dependent child, local authorities may grant temporary accommodation to the child only if the authority identifies that they have a duty to the child under section 20 of the Children Act 1989.
30. By virtue of paragraph 11(e) of Schedule 3 to the 2002 Act, local authorities should have regard to the guidance set out in paragraphs 31 to 50 when determining how to make these arrangements.
31. Accommodation is purely a temporary measure to allow a person with dependent children to be accommodated pending departure from the UK. Local authorities should have regard to the desirability of ensuring that the overall cost of accommodation and the return journey is as cost-effective as possible.
32. For those persons returning to EEA Member States, it is preferable if accommodation does not continue for a period of more than a further 5 days from the date the family first presented for support or assistance to the local authority. For those returning to other countries, it is preferable if accommodation does not continue for a period of more than a further 10 days from the date the family first presented for support or assistance to the local authority.
33. In the event of failure to travel, should the person have an acceptable reason and be able to provide acceptable proof, further accommodation could, in principle, be provided …
34. Where an individual fails to travel and they do not provide an acceptable reason or cannot provide acceptable proof, further accommodation should not be provided to them as set out in the Regulations 2002 …
35. In respect of individual(s) here unlawfully, the Home Office Immigration and Nationality Directorate will inform local authorities should the individual refuse to co-operate with removal directions. In such an event, all accommodation must be immediately terminated as set out in the Regulations 2002. Offers of care may be made to any children under Section 20 of the Children Act 1989. Again, it follows from the Regulations 2002 that no further accommodation, or any other form of support as defined in Paragraph 1(1) of Schedule 3 of the Nationality, Immigration and Asylum Act 2002 should be provided to the adults.
25. (a) Persons in the E.E.A. classes are not in the U.K. unlawfully and so the Secretary of State has no power to require their removal. Yet, whether as refugees or citizens, they belong to states where they are presumably entitled to public benefits and to which it would presumably be safe for them to be returned. In the U.K. they are not entitled to state benefits and in principle there is no reason why local authorities should support them. Thus, subject to the over-arching canopy of their human rights, it seems entirely appropriate that a local authority's obligations towards them should be limited to arranging for their travel back to their E.E.A. state and, pending implementation of such travel arrangements as "have been or are to be made" and in the event that a child is present with them, to arranging for their accommodation. In that context, therefore, there is no reasonable call for the provision of any accommodation other than in the very short term.
(b) Persons in the fourth class, however, may be in an entirely different situation. Arrangements for their travel abroad are the responsibility only of the Secretary of State and are effected by his issue of removal directions. But there may be a variety of reasons why, even though they are unlawfully present in the U.K., a substantial period may elapse before he issues directions for their removal. Practical or other difficulties sometimes attend removal to a particular state; but the more usual reason for delay, as in the claimant's case, is the pendency of an appeal or his need to consider further representations. Particularly in light of the human rights points apparently still in her quiver, the claimant can reasonably expect, even if ultimately she fails to secure leave to remain, that she will not be subject to removal directions for a substantial period. So a power to accommodate her until failure to co-operate with directions is – on the face of it – a power to accommodate her for a substantial period.
(a) in regulations made under a schedule described by Parliament as making provision "for support to be withheld or withdrawn";
(b) in regulations of which the title refers to "Travel Assistance and Temporary Accommodation"; and
(c) in the third paragraph of a regulation tucked underneath a paragraph which provides a power to arrange for accommodation only in the very short term.
"While guidance and direction are semantically and legally different things and while 'guidance does not compel any particular decision' … especially when prefaced by the word 'general', in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
"The council, of course, had to have regard to the code … but, having done so, they could depart from it if they thought fit. This is a case in which they were perfectly entitled to depart from it …"
(a) the reference to "short-term" accommodation in para. 28 of the Guidance is inapt for the fourth class;
(b) the references to "pending departure" in paras 28 and 31 are also inapt for them;
(c) the guidance to local authorities in para. 31 to keep the cost of the return journey as well of accommodation as low as possible is nonsensical in relation to them because local authorities cannot arrange for their travel; and
(d) the target in para. 32 of accommodating the fourth class for no more than 10 days bears no relation to the likely duration of their need for accommodation.
On the other hand (says Mr Knafler) the reference in para. 35 to notification to local authorities by the Secretary of State of a refusal to co-operate with removal directions on the part of the fourth class is apt because that is the point at which the provision of accommodation to them properly ends.
(a) was necessary in order to avoid a breach of rights under Article 8 (or 3); and
(b) would safeguard and promote her welfare?
"[The claimant] to consider going back to Guyana where she has extended family network support and the opportunity to work. SSD is of the view that this would be in [the child's] best interests and will proceed with exploring the viability of this option. This will include contacting extended family in Guyana."
Later it added:
"[The child] has an uncle in Guyana with whom she and her mother can stay temporarily."
MR JUSTICE WILSON: I do want to apologise to counsel for the late arrival with them of this judgment of mine. I am supposed to be on vacation this week, as well as last week, so I am afraid it has not been logistically possible to get the judgment to them before noon or possibly, in the light of their other commitments, afternoon. So, I assume that they will not have had time to digest it in any detail and I hope that they will not have spotted any obvious errors. But if they have, could they now identify them?
MR MCGUIRE: The only error I have spotted is after the name Bryan McGuire on the front page, if we could put, "and Mr Paul Turner."
MR JUSTICE WILSON: Of course, I am so sorry about that. Mr Knafler, in the light of this judgment, are you and Mr McGuire agreed on what the order should be?
MR KNAFLER: We have had very limited time, entirely my fault, I am going to ask for the decisions of 20th January and 27th March to be quashed. I think Mr McGuire is agreeable to that.
MR JUSTICE WILSON: Yes.
MR KNAFLER: I am going to make an application for the costs of the proceedings.
MR JUSTICE WILSON: Right, well, thank you.
MR KNAFLER: Because we applied to quash those decisions and we have succeeded.
MR JUSTICE WILSON: Well, that is true enough. Mr McGuire?
MR MCGUIRE: We agree on the first part, but we are apart on the second. On the issue of costs there are two possibilities: one is a split costs order, the other is that the Gordian knot be cut, and we say no order as to costs.
The starting point in this is to see that the parties arrive for a judicial review before Silber J, on the basis that the claimant's own case as to her immigration status, namely that she had lawfully applied to extend her time to apply to be here, was accepted. On that basis the authority made a decision under section 17, which turned out to be false.
Whereas, of course, one would not expect us to know all the ins and outs of her immigration status, the reality is that rather like the person who says they did not know they had an elephant in the garden, she really ought to know that the reality is here that she was here on a six month temporary visitor's visa in 1998, and had never been given any reason by anyone to think she could stay.
MR JUSTICE WILSON: It took some time for Miss Stern to explain to me why it was that with the appeal pending and the representations outstanding, she was not still lawfully here.
MR MCGUIRE: I could see that -- I will move on to my second point -- I do not abandon that. The second is that if one looks at the decision, at the claim form, one finds that every word has been crossed out as it stood before Silber J on the date of the hearing. So there is nothing there that was relied upon, although the argument as to section 17 and one way tickets was revived in what I described as emasculated form, only then to be rejected by your Lordship.
So the reality is that everything that was raised by that time was rejected, and formed no part of the decision today. The authority had made a lawful decision on the basis of the information before it, or at least at any rate, no point had succeeded now which had been taken up to that stage. The question that has led to the downfall of the authority in these proceedings really amounts to: what about the father? So the question we are concerned --
MR JUSTICE WILSON: "What about the father?" and "What about Guyana?".
MR MCGUIRE: Well, I follow that. Well, dealing with, "What about the father?" first. That never did arise, specifically, as a matter complained of, even in the latest version of the claim form, although I accept correspondence changed places, and again to avoid any dispute between counsel, I accept that we were aware, after the directions hearing, following the aborted first hearing before Silber J, that the question, "What about the father?" would be one that would need to be addressed.
So, informally, that matter has been on the agenda or been available for -- well, there to be considered only between that hearing following the first full hearing and now. I say that in reality the way the case was presented was first to raise that point. Second, to build upon that point with such matters as the Child Abduction Act is really to take a new strand to their case and to develop that. As I say, in reality that is such a late introduction of a new factor that should be reflected in costs.
MR JUSTICE WILSON: Is there not a wider point that you could make. Half this case was about Regulation 3(3) and the other half was about section 17. You have won on Regulation 3(3).
MR MCGUIRE: That is my third and, as I say, main point, that we have won on the major issue that has been debated.
MR JUSTICE WILSON: I am not sure about the 'major'. You have won on what, at the moment, I consider to be the issue which took up at least half the time.
MR MCGUIRE: Quite so, that is right.
MR JUSTICE WILSON: You might say that you would in principle, subject of course to Legal Aid protection, you would be in principle entitled to your costs of that and if your other arguments are wrong Mr Knafler would be, in principle, entitled to his costs of the other half, and the two broadly cancel out.
MR MCGUIRE: Quite so. Might I say I won on the point of principle and my learned friend has won on the assessment point in two respects. Perhaps the best way forward is no orders to costs, to save the court the trouble of setting one set-off against the other, with two public bodies standing behind them watching the result.
MR JUSTICE WILSON: Thank you. Mr Knafler?
MR KNAFLER: My Lord, I will just address the last of those three points. It is quite correct to say that at least half of the argument in court related to the proper approach to Regulation 3(3), at least half of the argument, but having said that, argument in court is only the tip of the iceberg in relation to what the case actually consists of.
If your Lordship looks at the witness statements and the work carried out day-to-day by the solicitors, right from the start of the case they were attacking, on a day-to-day or a week-by-week basis, the assessments and looking at the facts relating to Guyana, and the facts relating to the father, which contrary to Mr McGuire's submission, if I understood it correctly, always were two points which should divide the parties right from the start.
Although, of course, it is true that before your Lordship at least half of the argument related to Regulation 3(3), but that does not actually reflect the amount of time and energy spent in the preparation of the whole case. Very little argument was needed to be debated by me in relation to the assessments, because I took the view, as the advocate representing Mrs M, that the solicitors had already done such a good job on that, that in fact it really spoke for itself when one came to trial.
So, in my respectful submission, the claimant, having succeeded in her challenge, ought at the very least to recover 50 per cent of her costs. That is my submission.
MR JUSTICE WILSON: Well, thank you. The January decision, even on the then supposition of lawful residence in the UK, was flawed. The challenge then issued was rightly issued. There was a sea change in the case as a result of the Secretary of State's presentation of the claimant's immigration position in March. I am not sure how much blame can be ascribed to the claimant in that regard. I am quite sure that no blame can be ascribed to Islington in that regard. So, the arguments had to be reassembled and that was costly. I am not at all sure that it would be fair to make Islington pay any of the costs occasioned by that substantial development.
Nevertheless, there was the March decision and that, like the January decision, was flawed. On the other hand, the claimant took an important but, as I have held, an invalid point under the regulations of 2002, and although Mr Knafler says that the costs occasioned at the hearing must not obliterate the preponderance of costs on other issues incurred earlier, it is costs at hearing, with counsel's fees and refreshers and solicitor's charges mounting up, that are, in my opinion, the really burdensome part of the costs of any litigation.
So we have a situation where a long two-day hearing was devoted, as Mr Knafler rightly says, at least as to one half, to an issue upon which Islington has prevailed. Subject to particular protection of publicly funded parties, and I can put that to one side for this purpose, one would say, in principle, that Islington was entitled to its costs of that issue. Just as the claimant was entitled to her costs of the issue under section 17 relating to both decisions. Taking a broadbrush I think that the two entitlements cancel out. There will be no order as to costs of this application.
MR KNAFLER: My Lord, I have been instructed to ask for permission to appeal on the point that your Lordship just described as an important point, on the construction of Regulation 3(3).
If I can very briefly explain why. First of all, in practical terms, we fought this litigation before your Lordship on every single point. We did not refuse to engage with the section 17 assessment, because we took the view that it should never have been entered upon because of the construction of Regulation 3(3). However, at this stage it is worthwhile appreciating that if we are right on Regulation 3(3), then the further assessment under section 17, that your Lordship's judgment entails, is otiose and unlawful and should not be carried out. So there is a preliminary issue -- well, if anybody considers our appeal is arguable, then there is a genuine preliminary issue to be considered here, before Islington go to the expense and trouble of carrying out a further assessment.
On that point, if I may just say very briefly, because your Lordship has heard all the arguments about this and delivered a detailed judgment, but if I could just make two very short points: we would respectfully be suggesting that Regulation 3(3) does not in fact conflate accommodation for EEA cases and accommodation for other cases. It is true that both types of cases are within Regulation 3, but in our respectful submission the two cases are kept apart by the different language used in those two different situations, and are not conflated as they are in the guidance.
Secondly; just what the concept temporary can mean. Our respectful submission would be that because something is temporary that does not mean it cannot last quite a long time. If you look, for example, at the temporary admission that the Secretary of State grants to people who come to the UK, that can last for many many years. If you look at temporary accommodation granted to homeless persons, including asylum seekers, as used to be under the 1993 Act, they used to be granted temporary accommodation, and that would last until their asylum claim was determined. So, on the meaning of temporary, we have an argument on that.
Then we have another, I was just really drawing attention to two slight developments to the arguments that your Lordship has already heard. Then we have our basic arguments, including the ill-received song, repeated twice. I think it is clearly a point of considerable general importance. Your Lordship has clearly rejected it, but not, as I understand it, in terms to suggest that it is completely unfounded or that another tribunal might not well take a different view.
MR JUSTICE WILSON: Mr Knafler, of course you have won in the result. I do appreciate that very occasionally there can be appeals by successful litigants, but tell me about the jurisprudence on that. Would that not be a particular reason for my leaving the question of permission to appeal to the Court of Appeal.
MR KNAFLER: My Lord, I have not had the time to get the jurisprudence to court. But can I ask your Lordship to look at it on a principle basis. Say Islington tomorrow, for example, say: come along for an assessment, we want to reassess you under section 17. Our response to that would be, left to our own devices: well, you are not entitled to carry out an assessment under section 17, to decide whether or not to provide us with travel back to Guyana. That jurisdiction simply does not arise. You have to be accommodating, all things being equal, us being destitute under Regulation 3(3).
Now, we cannot say that, at the moment, because of your Lordship's judgment. Therefore we would be bound to undergo a further assessment. Now, what that further assessment will result in is speculative, but let us just assume for one moment that Islington adhered to their desire to make the offer that they have already made. We will then be back, assuming we continue not to accept that that was a lawful decision, we would then be back before the High Court again, where we would, in effect, be forced to run the same sort of arguments that we have run today.
The Regulation 3(3) point is really quite a discrete point. It is a point that is preliminary to the whole concept of carrying out a section 17 assessment, and it is also a discrete point that does not depend on the facts of any particular case. It effects everybody who falls within category 4 of being an unlawful -- somebody unlawfully present in the country.
For those reasons, in my respectful submission, because of the general discreteness and importance of the point, and because of the discreteness of the point in relation to this particular claimant, it ought to be dealt with by the Court of Appeal; (a) so that the legal position can be made clear in respect of everybody, and (b) so that the future conduct of relations between Islington and Mrs M can be conducted on a legally correct basis.
At the moment, with respect to your Lordship's decision, our position would be that any further section 17 assessment would be unlawful.
MR JUSTICE WILSON: Mr Knafler, thank you for that attractive presentation, but I am going to refuse your application for permission and leave it to the Court of Appeal to decide, if invited, whether to take this point within your successful application up.
MR KNAFLER: My Lord, can I ask for a detailed assessment for the claimant's funded costs?
MR JUSTICE WILSON: Of course, there will be no order as to costs then, save that the costs of the claimant, being publicly funded, be subject to detailed assessment.
MR KNAFLER: Thank you.
MR JUSTICE WILSON: Anything more in the case of M from your point of view, Mr Knafler?
MR KNAFLER: No. I was just going to draw attention to the other case.
MR JUSTICE WILSON: I had not forgotten it.
MR MCGUIRE: I was going to take the precaution of asking for permission to appeal. I accept that my learned friend has concerns over that in principle, that matters on which the authorities (inaudible) questions of rationality and the proper approach to be taken, and, of course, one would need to pay careful regard to what a senior family judge has said about matters relating to an assessment, and so I would not seek to make good any submission on those grounds at this stage. I simply ask because now is the convenient time to do so.
MR JUSTICE WILSON: It is the convenient time so the order will read that the applications, both of the claimant and of the defendant, for permission to appeal to the Court of Appeal, be refused.
MR MCGUIRE: Thank you.
MR JUSTICE WILSON: Any other matters from your perspective, Mr McGuire?
MR MCGUIRE: My Lord, no.
MR JUSTICE WILSON: Miss Stern, good afternoon.
MISS STERN: Good afternoon, my Lord. I have absolutely nothing to say, other than might I be able to be released while the --
MR JUSTICE WILSON: Well, of course, so will Mr McGuire be, I do not think he is involved in that either. That is the end of the case of M.
Thank you for your assistance.