Asylum seeker - Asylum support - Claimant's asylum application and appeal being refused

R (on the application of VC and others) v Newcastle City Council; R (on the application of K) v Newcastle City Council: Queen's Bench Division, Divisional Court (Lord Justice Munby, Mr Justice Langstaff): 24 October 2011

Section 95 of the Immigration and Asylum Act 1999 provides, so far as material: '(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.'

Section 4 of the Immigration and Asylum Act 1999 provides, so far as material: '(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.'

Section 17 of the Children Act provides, so far as material: '(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.'

In December 2004, K, the claimant in the second case entered the United Kingdom and claimed asylum. Her claim was refused and, in December 2005, her appeal against that decision was dismissed. In reliance upon the dismissal of her appeal, the asylum support that K had previously been receiving under section 95 of the Immigration and Asylum Act 1999 (the 1999 act) was terminated on the basis that she was a failed asylum seeker in relation to whom the deeming provision in section 94(5) of the 1999 act did not apply. In January 2008, K gave birth to a child, J.

In December 2007, the defendant local authority began to provide support and, from January 2008, accommodation, under section 17 of the Children Act 1989 (the 1989 act). In March 2010, K gave birth to a second child, B and the authority increased the level of the family's support accordingly. In June 2010, the authority wrote to K informing her that if she did not apply to the secretary of state for support under section 4 of the 1999 act (section 4 support) within two weeks, her support under section 17 of the 1989 act (section 17 support) would cease.

K's application for section 4 support was subsequently refused and her appeal against that decision dismissed. In November, the authority wrote to K again, in similar terms, seemingly ignorant of the fact that she had already made an unsuccessful application for section 4 support. However, it was agreed by the authority that K's section 17 support would continue pending the outcome of the judicial review of the claimants in the first case. It was implicit that the authority had assessed J and possibly B as being a 'child in need' pursuant to section 17(10) of the 1989 act.

The claimants in the first case were VC and her two children DC and JC. VC had also applied for and been refused asylum in the United Kingdom. In January 2005, VC's submissions in respect of article 3 of the European Convention on Human Rights (the convention) were accepted as a fresh claim by the secretary of state. Accordingly, she again became an asylum seeker and was entitled to support under section 95 of the 1999 act. In August and November 2010, VC was told by the authority that if she did not apply for section 4 support her section 17 support would be terminated.

VC applied for judicial review of that decision. At the hearing, it was common ground that subject to satisfying the destitution criteria for eligibility, VC and her children were eligible for support under section 95 of the 1999 act. Further by virtue of section 122(5)(b)(ii) of the 1999 act, the authority did not have the power to provide VC and her family with accommodation or support under section 17 of the 1989 act.

Accordingly, VC's claim for judicial review, based on the proposition that the authority was obliged to provide accommodation and support under section 17 could not succeed. There was no question of K and her family being entitled to any support under section 95 and K was permitted to commence judicial review proceedings in order to determine the issue.

The principal issue that fell to be determined was as to which public authority had to take responsibility for providing accommodation and support to children in need within migrant families who were not entitled to support under section 95 of the 1999 act. The authority contended that it was entitled to terminate support being provided to families pursuant to section 17 of the 1989 act) on the basis that those families could access support under section 4 of the 1999 act and, by extension, it would be entitled to refuse to support destitute families eligible for section 4 support.

The claimants submitted, inter alia, that it was unlawful for the local authority to terminate the section 17 support by reference to the potential availability of section 4 support. Accordingly, that being the only basis for the authority's decision, the decision was unlawful. The application would be allowed.

In contrast to section 17 of the 1989 act, section 4 of the 1999 act was a residuary power and the mere fact that support was or might be available under section 4 did not of itself exonerate a local authority from what would otherwise be its powers and duties under section 17. Where a local authority had not merely assessed a child as being 'in need' but was actually providing services and support on that basis under section 17, it could decide to discontinue such provision, on the basis that section 4 support was or might be available, but only if it could be shown, first, that the secretary of state was actually able and willing, or if not willing, could be compelled, to provide section 4 support, and, second, that section 4 support would suffice to meet the child's assessed needs (see [86], [91] of the judgment).

There were a number of key legislative indicators which together pointed towards the conclusion that the availability of section 4 support did not of itself exonerate a local authority from its duties under section 17 of the 1989 act. First, there was the contrast not merely between the level of support available under section 17 and section 4 but also between the very different purposes of the two statutory schemes: section 4 support was intended to provide the minimum support necessary to avoid a breach of a person's convention rights; section 17 support was to be provided by reference to the assessed needs of the child.

In short, sections 4 and 17 established two discrete regimes established for different purposes. Secondly, there was the striking fact that, in contrast to the position under section 95 of the 1999 act, parliament had not excluded families who were or might be eligible for support under section 4 from local authority support under section 4 from local authority support under section 17.

Thirdly, there was the careful exclusion of children from the ambit of the provisions in schedule 3 to the Nationality, Immigration and Asylum Act 2002 (the 2002 act) removing various asylum seekers or failed asylum seekers from eligibility for support under section 17. Accordingly, any exclusion from section 17 support for dependant children of failed asylum seekers had to, if it existed, be found elsewhere. Yet, in contrast to the position of dependant children of asylum seekers, there was no such exclusion in place. If a child was being provided with support under section 95 of the 1999 act, the legislative scheme gave priority to the provision of section 95 support over section 17 support: sections 122(3), (5). Not so in relation to support under section 4.

Accordingly, it was to be inferred that the legislative intent was that where sections 4 and 17 were both theoretically engaged, the more advantageous regime under section 17 was to apply (see [87]-[90], [93] of the judgment). In the instant case, on the evidence, the authority had wholly failed to demonstrate that any support which might be available under section 4 of the 1999 act would be adequate to meet the assessed needs of any of K's children. Accordingly, the decision, in respect of K, had been unlawful (see 95] of the judgment).

R (on the application of Westminster City Council) v National Asylum Support Service [2002] 4 All ER 654 considered; R (on the application of O) v Haringey London Borough Council [2004] All ER (D) 22 (May) considered; R (on the application of AW) v Croydon London Borough Council; R (on the application of A, D and Y) v Hackney London Borough Council [2005] All ER (D) 251 (Dec) considered; R (on the application of O) v Barking and Dagenham London Borough Council [2011] 2 All ER 337 considered.

Per curiam: 'Again, in practical terms, and whatever the theoretical possibilities, a local authority supporting a child who is assessed as being "in need" is very unlikely in the general run of cases to be able to justify the discontinuance of such support by reliance on section 4.' [of the 1989 act].

Stephen Broach for the claimants; Hilton Harrop-Griffiths for the authority.