England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 September 2005

The Deputy Judge:

INTRODUCTION

1. The issue on this application is whether paragraph 2( 1 )(b) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") preserved the duty of the Secretary of State for the Home Department ("the Second Defendant") to provide asylum support pursuant to section 122 of the Immigration and Asylum Act 1999 ("the 1999 Act") to the child of a person when that person ceased to be eligible for asylum support under section 95 ofthe 1999 Act.
2. For present purposes the facts are not in dispute. The Claimant is a citizen of the Czech Republic. He claimed asylum, but that claim was refused and his appeal was dismissed. He lived with his wife, the Interested Party, and their three children.
3. On 1 May 2004, by virtue of the fact that the Czech Republic became an European Economic Area ("EEA") State, the Claimant became ineligible for asylum support by the operation of section 54 and Schedule 3 to the 2002 Act. On 7 July 2004 the Second Defendant indicated that the provision of asylum support to the Claimant and his dependants would be terminated with effect from 26 July 2004. The Claimant appealed the Second Defendant's decision to the First Defendant who dismissed the appeal.
4. The Claimant in these proceedings challenges the decision of the First Defendant. An order for interim relief was made. Permission was granted. The Claimant's wife was joined as an Interested Party.
5. The Claimant and the Interested Party are now living apart. The children live with the Interested Party. The Second Defendant has agreed to provide asylum support to the Interested Party until 14 days after he has determined the claim made by her in her own right for asylum support. In those circumstances the only relief now sought in this claim by the Interested Party is that at paragraphs 3 and 4 of the Amended Claim Form which is in the following terms:

"3. A declaration that by virtue of paragraph 2(1)(b) of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 paragraph 1 of that Schedule does not prevent the discharge of the duty imposed upon the Second Defendant by sections 122(3) and (4) of the Immigration and Asylum Appeals Act 1999 to provide asylum support to a child as part of the eligible person's household ..

4. A declaration that the duty imposed upon the Second Defendant by sections 122(3) and (4) of the Immigration and Asylum Appeals Act 1999 to provide asylum support to a child as part of the eligible person's household requires the Second Defendant to provide asylum support to each member of that household".

A PRELIMINARY POINT

6. The Claimant had not appeared on this application, nor was he represented. His present whereabouts are unknown. He has not pursued his claim since his solicitors came off the record.
7. At the outset of the hearing I raised with Mr Cox and Mr Patel, who appear on behalf of the Interested Party and the Second Defendant respectively, whether this application could proceed in the absence of the Claimant. I agreed with their submissions that it is appropriate for the issue of statutory construction to be resolved. I gave the parties permission to supplement their argument on this preliminary point. In written submissions Mr Cox has referred me to the judgment of Collins J. in R v SSHD ex p Shefki Gashi (CO/3559/1999) and R v SSHD ex p Artan Gioka (CO/4506/1999) which supports the conclusion that the Court's jurisdiction does not depend upon the Claimant's presence at the hearing or his active involvement.

5T A TUTORY FRAMEWORK

8. The asylum support scheme is contained in Part VI to the 1999 Act.
9. Section 95 of the 1999 Act provides, in so far as relevant:

"95.- (1) The Secretary of State may provide, or arrange for the provision of, support for -

(a) asylum-seekers, or

(b) dependants of asylum-seekers,

who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed" .

10. Section 94(5) provides that:

"(5) If an asylum-seeker's household includes a child who is under 18 and a dependant of his, he is to be treated (for the purposes of this Part) as continuing to be an asylum-seeker while -

(a) the child is under 18; and

(b) he and the child remain in the United Kingdom."

11. Section 122 provides, in so far as relevant:

"Support for children

122.-( 1) In this section "eligible person" means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.

(2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 ("the child").

(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person's household.

(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person's household.

(5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when -

(a) the Secretary of State is complying with this section in relation to him; or

(b) there are reasonable grounds for believing that -

(i) the person concerned is a person for whom support may be provided under section 95; and

(ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95.

(6) "Assistance" means the provision of accommodation or of any essential living needs.

(7) "The child welfare provisions" means -

(a) section 17 of the Children Act 1989 (local authority support for children and their families) ...

(8) Subsection (9) applies if accommodation provided in the discharge of the duty imposed by subsection (3) has been withdrawn.

(9) Only the relevant authority may provide assistance under any of the child welfare provisions in respect of the child concerned.

....

SCHEDULE 3 TO THE NATIONALITY, IMMIGRATION & ASYLUM ACT 2002

12. Schedule 3 came into force on 8 January 2003. Insofar as relevant, it provides:

"SCHEDULE 3

WITHHOLDING AND WITHDRAWAL OF SUPPORT

Ineligibility for Support

1.(1) A person to whom this paragraph applies shall not be

eligible for support or assistance under -

(a) section 21 or 29 of the National Assistance Act 1948 (c. 29) (local authority accommodation and welfare),

....

(g) section 17, 23C, 24A or 248 of the Children Act (c. 41) (welfare and other powers can be exercised in relation to adults),

....

(k) section 2 of the Local Government Act 2000 (c.22) (promotion of well-being),

(I) a provision of the Immigration and Asylum Act 1999 (c.33), or

(m) a provision of this Act.

(2) A power or duty under a provision referred to in subparagraph (1) may not be exercised or performed in respect of a person to whom this paragraph applies (whether or not the person has previously been in receipt of support or assistance under the provision).

Exceptions

2.(1) Paragraph 1 does not prevent the provision of support or assistance -

(a) to a British Citizen, or

(b) to a child, or,

..

3. 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, or

(b) a person's rights under the Community Treaties.

Second class of ineligible person: citizen of other EEA State

5. Paragraph 1 applies to a person if he -

(a) has the nationality of an EEA State other than the United Kingdom, or

(b) is the dependant of a person who has the nationality of an

EEA State other than the United Kingdom.

Third class of ineligible person: failed asylum-seeker

6( 1) Paragraph 1 applies to a person if -

(a) he was (but is no longer) an asylum-seeker; and

(b) he fails to cooperate with removal directions issued in respect of him.

(2) Paragraph 1 also applies to a dependant of a person to

whom that paragraph applies by virtue of sub-paragraph (1).

Interpretation

17(1) In this Schedule -

"asylum-seeker" means a person

(a) who is at least 18 years old,

(b) who has made a claim for asylum (within the meaning of section 18(3)), and

(c) whose claim has been recorded by the Secretary of State but not determined,

"Convention rights" has the same meaning as in the Human Rights Act 1998 (c.42),

"child" means a person under the age of eighteen,

"dependant" and "dependent" shall have such meanings as may be prescribed by regulations made by the Secretary of State,

"EEA State" means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2^nd May 1992 (as it has effect from time to time),

(2) For the purpose of the definition of "asylum-seeker" in sub-paragraph (1) a claim is determined if -

(a) the Secretary of State has notified the claimant of his decision,

(b) no appeal against the decision can be brought (disregarding the possibility of an appeal out of time with permission), and

(c) any appeal which has already been brought has been disposed of."

THE ISSUE

13. Mr Cox submits that Parliament's intention by enacting paragraph 2(1 )(b) of Schedule 3 to the 2002 Act was to exempt children from the effect of Schedule 3. He says that giving broad effect to paragraph 2( 1 )(b) is consistent with the approach of Parliament in section 122 of the 1999 Act to protect children. A contrary construction depriving paragraph 2( 1 )(b) of effect should only be adopted if there is no alternative. He submits that paragraph 2(1 )(b) was not necessary to preserve duties directed to children alone since paragraph 1 of Schedule 3 applies only to duties and powers which are primarily to be used to protect adults. Mr Cox distinguishes the decision in R on the Application of M v Islington LEC and Secretary of State for the Home Department [2004] EWCA Civ 235 on the basis that that case was concerned with the power of local authorities under section 17 of the Children Act 1989 (see Judgment of Buxton L.J. at paras 16-19). By section 122 of the 1999 Act the Secretary of State is under a continuing duty to provide proper support for mothers as carers of children.
14. In my judgment Mr Cox's submissions fail to give proper effect to the clear language of section 122 of the 1999 Act. The duty of the Second Defendant under section 122 to provide asylum support to a child of a person is dependent upon that person being eligible for asylum support under section 95. As the Claimant is no longer eligible under section 95, the Second Defendant's duty under section 122 to the Claimant's children does not arise. I agree with Mr Patel that it is not a question of whether the effect of Schedule 3 to the 2002 Act ends the section 122 duty (as the Claimant submits); rather, that the duty does not arise because the conditions for its operation are not met. Such an interpretation does not affect the child's eligibility for support and assistance, for example, under section 17 of the Children Act 1989.

CONCLUSION

15. In my judgment the Defendants have committed no error of law warranting the grant of declarations in the terms sought in paragraphs 3 and 4 of the Amended Claim Form. [I will hear Counsel as to the form of the order to be made].