England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		11 December 2007

1. MR JUSTICE MITTING: AG is a female national of the Ivory Coast. She entered the United Kingdom on 3 November 2000. She was granted temporary admission on 20 December 2000. She claimed asylum on 17 December 2000. Her claim was refused by the Secretary of State on 23 June 2004. She appealed to an adjudicator who, by a determination promulgated on 11 February 2005, dismissed her appeal. She applied for statutory review. It was refused finally on 1 October 2005. Her appeal rights were exhausted on 25 October 2005. On 24 March 2006 she made further representations, inviting the Secretary of State to treat them as a fresh claim under paragraph 353 of the Immigration Rules and, alternatively, for indefinite leave to remain. Her representations were dismissed on the ground that she was ineligible for indefinite leave on 30 March 2005.
2. AG had, in the meanwhile, become pregnant. On 10 July 2006 she applied for, and was granted, an interim order requiring Leeds City Council ("Leeds") to provide her with accommodation under Section 21 (1) of the National Assistance Act 1948. She was granted permission for judicial review on 6 September 2006, and consequently brings this claim. She gave birth to a daughter on 15 November 2006. On 22 August 2007 she made further representations which she invited the Secretary of State to treat as a fresh claim. On 13 November 2007 the Secretary of State refused to do so. Removal directions have not yet been set in her case.
3. MD is a female national of Zaire, who is now aged 27. She entered the United Kingdom on 24 January 2005 and was granted temporary admission on 8 February 2005. She claimed asylum on 25 January 2005. Her claim was refused on 8 February 2005. She appealed to an immigration judge who, by a determination promulgated on 4 May 2005, dismissed her appeal. She applied for re-consideration of that decision. That was refused on 2 June 2005 at the level of the Asylum and Immigration Tribunal. Her appeal rights were exhausted by 20 June 2005.
4. In late 2005 or early 2006 she became pregnant with twins. She was given permission for judicial review on 8 June 2006 and, on the same date, a similar order was made in her case addressed to Leeds. She gave birth to twin sons on 20 August 2006. She made further representations on 2 March 2007, inviting the Secretary of State to treat them as a fresh claim under paragraph 353 of the Immigration Rules. No decision has yet been made on those representations. No removal directions have been set in her case.
5. It is common ground that while in the later stages of their pregnancies, and while they were and are the mothers of young children, by which I mean nursing mothers of young children or mothers of children too young to be carried by a scheduled flight, a duty is owed to them to provide them and their children with accommodation and necessities. The duty is owed to avoid the breach by the United Kingdom of the claimants' rights under Article 3 of the European Convention on Human Rights.
6. The question that arises in these two cases is by whom that duty must be fulfilled. The Secretary of State and Leeds say it should be fulfilled by the Secretary of State. The claimants say it should be fulfilled by Leeds. Lest it be wondered why the claimants are concerned about the difference - ie by whom the accommodation is provided - Mr Knafler for the claimants submits, and he may well be right, that the accommodation and support provided by Leeds is likely to be less spartan than that provided by the Secretary of State. It is however common ground that the circumstances which gave rise to the interim orders no longer obtain so that they should, in any event, be discharged. Nevertheless I have been invited to determine - and will do so - questions of principle raised by these claims, not only for the benefit of these claimants but also for others in similar positions.
7. The claimants' claim is that Leeds are required by Section 21 (1) (a) of the National Assistance Act 1948 to provide accommodation for them. Alternatively, that Leeds has the power to provide accommodation for them under Section 21 (1) (aa), which power, by dint of their circumstances, must be exercised in their favour so as in practice to give rise to a duty to provide accommodation for them.
8. The Secretary of State and Leeds submit that the only power under which accommodation can be, or could have been, provided for them is under Section 4 of the Immigration and Asylum Act 1999. Alternatively, that it is at least lawful for the Secretary of State to provide accommodation under that section.
9. Close examination of the statutory provisions is required. Like Lord Justice Laws, I wonder why the distribution of responsibility which is at the core of this case - as in the case that he was considering, AW v London Borough Council - could not have been provided much more clearly and simply. For reasons I will explain, it is not necessary for me to undertake the full statutory paper chase but I must go at least some way along it to arrive at the conclusions which I reach and to explain why I have reached them. Section 21 (1) of the 1948 Act provides:

"Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -

(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and

(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them."

10. That power, as originally enacted and as amended for the purpose of United Kingdom nationals and others with the right to reside here, contained a limit in sub-section (8):

" ..... nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act ..... "

Ministerial direction and guidance was given in Local Authority Circular (93) 10 which directed a local authority to make arrangements under Section 21 (1) (a) and empowered a local authority to make arrangements under Section 21 (1) (aa).

11. It is common ground and, in any event, obvious that destitution is capable of amounting to "any other circumstance" under Section 21 (1) (a). In the case of a United Kingdom national or a person with the right to reside in the United Kingdom, Section 21 (1) (a) will rarely be called upon because the provision of accommodation is generally dealt with under the Housing Act 1996 and of means of sustenance by a variety of state benefits. Thus - to put it colloquially - the English tramp will rarely find occasion to make a claim to assistance under Section 21 (1) (a) and a local authority will rarely find itself obliged to afford him assistance under that provision. The power to make arrangements for expectant and nursing mothers may however be exercisable rather more frequently.
12. Provisions that - in relation to those with a right to reside in the United Kingdom - have little modern purpose do however play a major part in the provision of accommodation for those seeking asylum in the United Kingdom. And, in consequence, much legislation has been enacted for the purpose of defining the respective obligations of local authorities and the Secretary of State in relation to such people. So far as local authorities are concerned, in broad terms, the principle has now been authoritatively established by legislation and case law that the able-bodied destitute asylum seeker is not the responsibility of the local authority. That has been achieved principally by Section 21 (1A) which provides:

"A person to whom Section 115 of the Immigration and Asylum Act 1999 (Exclusion from Benefits) applies may not be provided with residential accommodation under sub-section (1) (a) if his need for care and attention has arisen solely -

(a) because he is destitute, or

(b) because of the physical effects or anticipated physical effects of his being destitute."

13. Section 115 of the 1999 Act applies to "a person subject to immigration control" unless he falls within prescribed definitions. It is common ground that most asylum seekers and all failed asylum seekers fall within that description so that it is not necessary for me to elaborate it further.
14. Section 95 of the 1999 Act empowers the Secretary of State to provide or arrange for provision of asylum seekers and dependants of asylum seekers. Asylum seekers are defined in Section 94 as persons who are at least 18 years old, who are in the United Kingdom, who have made a claim for asylum which has been recorded by the Secretary of State and whose claim has not been determined. Section 95 accordingly, in terms, applies to those who make a claim for asylum which has not yet been determined either by the Secretary of State or on appeal by an immigration judge or on reconsideration by the Asylum and Immigration Tribunal. The Secretary of State accepts that the definition also applies to someone whose initial claim has been rejected and whose appeal rights have been exhausted but who has made representations which are recorded by the Secretary of State as a fresh claim under paragraph 353 of the Immigration Rules. I do not propose to set out paragraph 353, which is well known to all who practise in the immigration area and whose precise terms are not material for present purposes.
15. When considering whether or not to exercise his power to provide or arrange for provision of support for asylum seekers the Secretary of State's decision is subject to the Asylum Support Regulations 2000. Under Regulation 6 (4) (b), the Secretary of State must take into account -

"any other support which is available to the principal or any dependant of his or might reasonably be expected to be so available within that period."

He must make that determination for the purpose of determining whether someone is destitute for the purposes of Section 95. It is to be noted that by virtue of Regulation 23 that determination is only made for the purposes (relevant to the present case) of Section 21 (1A) of the 1948 Act and not Section 21 (1) (a) of that Act.

16. In relation to failed asylum seekers the position is governed by Section 4 of the 1999 Act and by regulations made under the 1999 Act, the Immigration and Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005. Section 4 provides:

"(1) The Secretary of State may provide or arrange for the provision of facilities for the accommodation of persons -

(a) temporarily admitted to the United Kingdom under paragraph 31 of Schedule 2 of the 1971 Act;

(b) released from detention under that paragraph, or

(c) released on bail from detention under any provision of the Immigration Acts.

(2) The Secretary of State may provide or arrange for the provision of facilities for the accommodation of a person if -

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

(b) his claim for asylum was rejected.

(3) The Secretary of State may provide or arrange for the provision of facilities for the accommodation of a dependant person to whom facilities may be provided under subsection (2)."

17. Regulation 3 of the 2005 Regulations sets out the criteria which the Secretary of State must use in determining the matters required to be taken into account under Section 4. They are:

"(1) .....

(a) that he appears to the Secretary of State to be destitute, and

(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.

(2) Those conditions are that -

(a) he has taken all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;

(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;

(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;

(d) he has made an application for judicial review of a decision in relation to his asylum claim -

.....

(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights within the meaning of the Human Rights Act 1998."

18. As is apparent from the recital of these claimants' immigration histories, they have at various times fallen within and without Section 95, Section 4 and Regulation 3 of the 2005 Regulations. While their original asylum claims were pending their claims to accommodation fell to be considered under Section 95. While their representations were being considered by the Secretary of State, potentially, they also fell within the same provision. I will return to that question later. In the periods during which they had neither their original asylum claim pending nor fresh representations being considered, they fell, so far as the Secretary of State's obligation was concerned, only under Section 4 and Regulation 3 of the 2005 Regulations.
19. Mr Knafler submits, founding himself upon the by now well known decisions in R (On application of Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956 and R v Wandsworth London Borough Council ex p O [2000] 1 WLR 2539, that throughout their pregnancies, and while they were nursing mothers, the claimants fell to be provided with accommodation by Leeds under Section 21 (1) (a), alternatively (1) (aa). He relies on Lord Hoffmann's observations at paragraph 32 at [2002] 1 WLR 2956 at 2965:

"The use of the word 'solely' [in section 21 (1A)] makes it clear that only the able bodied destitute are excluded from the powers and duties of section 21 (1) (a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as because they are destitute. They would need care and attention even if they were wealthy."

20. Similar considerations led Lord Justice Simon Brown in O [2000] 1 WLR at page 2548 G to H to prefer the claimant's contention that some circumstance other than the mere lack of accommodation and funds was capable of qualifying an immigrant or asylum seeker for assistance by a local authority:

"The word 'solely' in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled."

In a nutshell, Mr Knafler's submission is, let them not be expectant or nursing mothers either.

21. Mr Knafler puts his submission in this way. Each claimant is in need of assistance because of "other circumstances", namely destitution, and is an expectant or nursing mother. Accordingly, in the jargon, each of these claimants is "destitute plus". Accordingly each is entitled to assistance under Section 21 (1) (a). They are not excluded because they are not solely destitute so that Section 21 (1A) does not apply to them.
22. Miss Laing, who appears for the Secretary of State, submits that these claimants are not within Section 21 (1A) at all. She submits that Section 21 (1A) should be read as if the words "under Section 21 (1) (a)" are inserted after the phrase "care and attention" in Section 21 (1A) so that it reads:

"A person to whom Section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under sub-section (1) (a) if his need for care and attention under sub-section (1) (a) has arisen solely -

(a) because he is destitute; or

(b) because of the physical effects, or anticipated physical effects, of his being destitute."

She submits that, when viewed as a whole, the statutory scheme necessarily leads to the implication of those words. She must, I think, put her claim that high because linguistic necessity is the litmus test, not reasonableness.

23. In my judgment, Miss Laing's submission is correct. It is clear that the draftsman of Section 21 (1A) intended, as case law has now demonstrated, that those whose need for care and attention had arisen solely because they were destitute should be dealt with by the Secretary of State and not by local authorities. It is common ground in this case that the needs of expectant and nursing mothers are exclusively catered for under Section 21 (1) (aa). Any need which they may have for care and attention under Section 21 (1) (a) arises not from pregnancy or nursing a baby but from destitution. Miss Laing submits that the draftsman has deliberately excluded from Section 21 (1A) the power of the local authority under Section 21 (1) (aa). As a matter of language, that is plainly right. Section 21 (1) (aa) is not mentioned in Section 21 (1A). It also, for the reasons I have explained, has no place within it. If, as I believe, that construction of Section 21 is right, it follows that the complicated interaction between the Secretary of State's duties and powers and the local authority's duties and powers simply does not arise.
24. Alternatively, although Miss Laing did not put this at the forefront of her argument, the Secretary of State's obligation under Regulation 6 of the 2000 Regulations - which to some extent inhibits his power to provide accommodation or assistance - does not make it unlawful for him to provide accommodation to expectant or nursing mothers even if a local authority were to be empowered to provide such assistance. Her only duty is to "take into account ..... any other support which is available to the principal ..... "
25. Having taken into account the possibility that the local authority might provide accommodation, nonetheless she is entitled to decide that she - and not the local authority - should do so. That is precisely what has occurred. Section 4 and the 2005 Regulations provide a satisfactory and lawful scheme under which the Secretary of State can provide accommodation for failed asylum seekers provided that they fulfil the requirement of Regulation 3 of the 2005 Regulations. These claimants did fulfil those requirements, either because while they were in the later stages of their pregnancy or while they had very young children with them they were not able to leave the United Kingdom by reason of a physical impediment to travel. A physical impediment to travel arose from their condition because airlines will not carry women in the later stages of pregnancy or very young children.
26. While either claimant has an asylum claim pending, to which proposition I will return in a moment, the Secretary of State is empowered to provide accommodation to them for the purpose of avoiding a breach of their Convention rights and Regulation 3 (2) (e). Given that the Secretary of State has the power lawfully to do that, Section 21 (8) of the 1948 Act comes into play and, in terms, restricts the ability of the local authority to exercise its power to provide accommodation for expectant and nursing mothers, just as it inhibits performance of its duty to provide residential accommodation for the relevant class of persons under Section 21 (1) (a).
27. Accordingly for both of those two reasons I decide that at no stage did Leeds have an obligation or, for that matter, the power to provide accommodation for either of these claimants.
28. I turn to one question that has been canvassed but upon which considered submissions have not been made. In R (On the application of AW) v London Borough of Croydon [2005] EWHC 2950, one of the issues which Mr Justice Lloyd Jones was invited to determine was whether the making of representations to the Secretary of State, inviting her to treat them as a fresh claim under paragraph 353, meant that for the purpose of the provision of accommodation and support a person was an asylum seeker rather than a failed asylum seeker. Mr Justice Lloyd Jones decided that local authorities should ask themselves whether the representations were manifestly inadequate as a fresh claim and only if so should provide accommodation, even to those whose original asylum claims had been rejected, while the Secretary of State considered their claim. Since he made those observations a new immigration rule has been adopted and laid before Parliament - Rule 353A - which provides:

"Consideration of further submissions should be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise."

29. Mr O'Brien, who appears for Leeds, has submitted to me that it is in practice extraordinarily difficult, if not impossible, for local authorities to determine whether or not a fresh claim for the purposes of Rule 353 of the Immigration Rules is manifestly unfounded. Difficulties of communication with the Home Office and with those making the representations, lack of in-house legal expertise on immigration law and on conditions in countries from which claimants to asylum come, all make it, in practice, an exceptionally burdensome task to discharge, such that, if I understand his submission correctly, a local authority will rarely, if ever, be able to avail themselves of the avenue left open by Mr Justice Lloyd Jones.
30. I have every sympathy with those submissions. Immigration and asylum law is difficult enough as it is for those charged with the duty of applying it; for those who are only indirectly engaged by it the burden of doing so may be insupportable.
31. The effect of Rule 353A may be that in the case of any asylum seeker who makes representations for the purposes of paragraph 353 it will not be possible to remove them lawfully. And, in consequence, if they are otherwise unable to fend for themselves there will arise or continue a duty to provide accommodation and necessities for them. To the extent that that falls on local authorities it may be that the effect of Rule 353A will be to impose upon them the burden of providing accommodation to those who have made representations, until they have been determined by the Secretary of State, whether or not the representations are well founded or even abusive. Those are matters for another day. They do not arise for decision directly in this case in the light of my finding that it is upon the Secretary of State that the power and, in so far as it exists, the duty to provide accommodation for these claimants existed or continues to exist.
32. For those reasons, I reject these two claims.
33. MISS LAING: I mention two matters.
34. MR JUSTICE MITTING: I am bound to have made the odd slip.
35. MISS LAING: I hope this is of assistance rather than anything else. The first one is where you referred to 2005 Regulations and set out those provisions. You made a reference to Regulation 3 of the 2000 Regulations. It should be 2005 Regulations. The second matter - and I think this is my fault because I should have taken you to the relevant paragraphs of the judgment of Mr Justice Lloyd Jones in Croydon - is where you summarise the third question in that judgment. It might assist if you look at tab 26. Just below paragraph 60 are the exact terms of question 3. It may be that when you come to correct the transcript you should refer to the question in its precise terms because I think that the way in which you summarised it did not precisely capture what the issue was. My note is not very good but that is merely a suggestion.
36. MR JUSTICE MITTING: I agree I may not have captured the way the issue was framed. I thought I had captured the answer.
37. MISS LAING: I can also refer you briefly to paragraph 69 of the same judgment - when Mr Justice Lloyd Jones expresses his conclusions on that issue - simply to make the point that I do not think he is suggesting that it falls to local authorities to decide whether or not the representations under paragraph 353 are a viable claim under paragraph 353. He is suggesting a much lower test. In other words, the test is that the authority when asked (?) to refuse support - in the middle of the paragraph - "for example on the grounds that the further representations are manifestly unfounded, or merely repeat the previous grounds or do not disclose any" - - - - -
38. MR JUSTICE MITTING: I agree I have used a shorthand that does not accurately explain it - - - - -
39. MISS LAING: That appears a pedantic suggestion.
40. MR JUSTICE MITTING: No, it does not, because language in this field is to be used precisely. I will correct that in the transcript.
41. MR KHUBBER: I agree with the last observation made by Miss Laing for obvious reasons as regards the accuracy of representation of Mr Justice Lloyd Jones' observations.
42. MR JUSTICE MITTING: I was simply seeking to indicate a question that may arise in a future case. Consequently I have not expressed myself with the precision that I would have done if deciding the point. I am grateful to both of you for pointing that out. I will correct it in the transcript.
43. MR KHUBBER: There are four consequential orders. First, in relation to your judgment, the applications before you should be dismissed.
44. MR JUSTICE MITTING: Yes.
45. MR KHUBBER: Secondly, in relation to interim relief, as you noted, that can and should be discharged now - - - - -
46. MR JUSTICE MITTING: Yes.
47. MR KHUBBER: - - - - - for the life of the judgment. Mr O'Brien has indicated, helpfully, that the local authorities are willing to continue to provide support to the claimants until, I understand, 4 January so as to allow them to make any appropriate application to the Secretary of State under Section 4.
48. MR JUSTICE MITTING: Yes.
49. MR KHUBBER: The third matter is one of permission to appeal. I ask for permission to appeal on the basis that the case does raise important issues of statutory construction, particularly on the basis that this is perhaps surprisingly, unusually, the first case to address Section 21 (1) (aa) and its precise interaction with the other relevant sections.
50. As to particular points on your judgment, the only point I would immediately make is as regards Regulation 6 (4) and the take-into-account aspect of that phrasing, in my submission, that has a more muscular interaction than the judgment you have given would state. That is the particular point I can pick up at this stage as regards the issue of construction. It is clear that this is an issue that has wider significance.
51. MR JUSTICE MITTING: If the issue had been live between the Secretary of State and Leeds I would gladly have granted permission. But because the state, in one or other of its guises, acknowledges support should be provided in circumstances, the only circumstances in which the claimant claims it should, I do not see that there is any issue now to be litigated between the claimant, the defendant and the interested party on appeal. In other words - although I acknowledge that there is a question of law here and, given the complexity if it, it is conceivable that the Court of Appeal might take a different view - I simply do not think that there is now any live issue that remains to be determined. Having said that, I will hear unusually what your opponents have to say just in case either of them want an appeal to be heard for their own purposes. If it is everybody's wish to have this question ventilated in the Court of Appeal my view may change.
52. MISS LAING: We have no reason particularly to want the matter to go to the Court of Appeal. We would respectfully suggest that you having expressed a clear view, first, about the issue of construction and, secondly, about the extent to which there was a real live issue, if leave to appeal is to be granted that should be a matter for the Court of Appeal.
53. I mention two things. The parties would find it useful to have an expedited transcript, even if the matter is not to be appealed, for obvious reasons. Those who have other cases pending raise this point and it would be useful to have a transcript rather than a note.
54. MR JUSTICE MITTING: Yes. Someone is going to ask for a transcript.
55. MISS LAING: Yes, but if it could be expedited. (Pause)
56. MR JUSTICE MITTING: I have asked and got the answer yes. Mr O'Brien, is there anything you want to say on permission to appeal?
57. MR O'BRIEN: It is rather pragmatic. We have spent a lot of money on this litigation. We are delighted it has been resolved but it has been resolved effectively on grounds that were reflected in our position in the very first letter. We think the matter is clear enough.
58. MR JUSTICE MITTING: I refuse permission to appeal.
59. MISS LAING: The final matter is a postscript to the point I was making in relation to the third issue in Mr Justice Lloyd Jones' Croydon case. Those behind me have asked me to draw your attention to a decision of Mr Andrew Nicol QC, sitting as a Deputy Judge, in Igoo Ishar v Southwark [2006] EWHC 2254 Admin That is a case in which a local authority had terminated support and had effectively made some attempt to weigh the pros and cons for leave to remain, and the Deputy Judge made clear that the only question for the local authority relating to a decision about support was whether or not the application was manifestly unfounded. That was the question which they were trying to answer, the question of the Secretary of State herself rather than whether - - - - -
60. MR JUSTICE MITTING: I am conscious of the fact that I have misstated at the end of my judgment the precise basis on which my brother judge suggested these matters should be dealt with. I will correct it.
61. MR KHUBBER: There is one matter on costs. The claimants are publicly funded.
62. MR JUSTICE MITTING: Public assessment?
63. MR KHUBBER: I would ask for a detailed assessment.
64. MR JUSTICE MITTING: Yes.
65. MR KHUBBER: So no order for costs.
66. MR JUSTICE MITTING: I do not imagine anyone seeks an order for costs. No order for costs.